As filed with the Securities and Exchange Commission on May 23, 1995
Registration No. 33-91644
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
AMENDMENT NO. 2
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
Hardinge Inc.
(formerly Hardinge Brothers, Inc.)
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
New York 3541 16-0470200
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
------------
One Hardinge Drive, Elmira, New York 14902-1507, (607) 734-2281
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive office)
------------
MALCOLM L. GIBSON
Senior Vice President and Chief Financial Officer, Hardinge Inc.
One Hardinge Drive, Elmira, New York 14902-1507, (607) 734-2281
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
------------
Copies to:
<TABLE>
<CAPTION>
<S> <C>
JONATHAN JEWETT LEONARD M. LEIMAN
Shearman & Sterling Fulbright & Jaworski L.L.P.
599 Lexington Avenue 666 Fifth Avenue
New York, New York 10022-6069 New York, New York 10103-3198
</TABLE>
------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable following the date on which this Registration Statement becomes
effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this Form, check the following box. [ ]
------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
EXPLANATORY NOTE
The Registrant's name was formerly Hardinge Brothers, Inc. On May 19, 1995,
the Registrant changed its name to Hardinge Inc.
This Amendment No. 2 is being filed solely for the purpose of filing
certain exhibits to the Registration Statement (Registration No. 33-91644).
This Amendment No. 2 does not contain copies of the Prospectus included in
the Registration Statement or Part II thereof, which are unchanged from
Amendment No. 1, filed on May 11, 1995.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certificates that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-2 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Elmira, State of New York, on the 23rd
day of May 1995.
HARDINGE INC.
By /s/ Robert E. Agan
---------------------------
Robert E. Agan
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities indicated on May 23, 1995:
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/Robert E. Agan President, Chief Executive
--------------------- Officer and Director
(Robert E. Agan)
/s/Malcolm L. Gibson Senior Vice President/Chief
--------------------- Financial Officer and Assistant
(Malcolm L. Gibson) Secretary
* Vice President and Director
---------------------
(Douglas A. Greenlee)
* Controller
---------------------
(Richard L. Simons)
* Secretary and Director
---------------------
(J. Philip Hunter)
* Director
---------------------
(John W. Bennett)
* Director
---------------------
(Richard J. Cole)
* Director
---------------------
(James L. Flynn)
* Director
---------------------
(E. Martin Gibson)
* Director
---------------------
(Dr. Eve L. Menger)
* Director
---------------------
(Whitney S. Powers)
</TABLE>
*By /s/ Malcolm L. Gibson
--------------------------
(Malcolm L. Gibson)
Attorney-in-fact
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
ITEM DESCRIPTION
<S> <C>
1 -Form of Underwriting Agreement.
++ 4.1 -Restated Certificate of Incorporation of Hardinge Brothers, Inc.
++ 4.2 -Amendment to the Restated Certificate of Incorporation of Hardinge Brothers,
Inc. filed with the Secretary of State of the State of New York on May 27,
1988.
4.3 -Amendment to the Restated Certificate of Incorporation of Hardinge Brothers,
Inc. filed with the Secretary of State of the State of New York on May 19, 1995
is incorporated by reference from the Registrant's Form 8-A, filed with
the Securities and Exchange Commission on May 19, 1995.
4.4 -Form of Amendment to the Restated Certificate of Incorporation of Hardinge
Inc. to be filed with the Secretary of State of the State of New York prior
to the effective date of the Registration Statement, Registration Number
33-91644, is incorporated by reference from the Registrant's Form 8-A, filed
with the Securities and Exchange Commission on May 19, 1995.
++ 4.5 -By-Laws of Hardinge Brothers, Inc.
4.6 -Section 719 through 726 of the New York Business Corporation Law are
incorporated by reference from the Registrant's Form 10, effective June 29, 1987.
4.7 -Specimen of certificate for shares of Common Stock, par value $.01 per share,
of Hardinge Inc. is incorporated by reference from the Registrant's Form 8-A,
filed with the Securities and Exchange Commission on May 19, 1995.
5 -Form of opinion of Shearman & Sterling as to the validity of the Common
Stock.
10.1 -The 1988 Hardinge Brothers, Inc. Incentive Stock Plan, as adopted by shareholders
at the annual meeting of shareholders held on May 17, 1988, is incorporated by
reference from the Registrant's Form 10-Q for the quarter ended June 30, 1988
and the Annual Proxy Statement dated April 28, 1988.
10.2 -First Amendment to Hardinge Brothers, Inc. 1988 Incentive Stock Plan is
incorporated by reference from the Registrant's Form 10-K for the year ended
December 31, 1993.
10.3 -Hardinge Brothers, Inc. 1993 Incentive Stock Plan is incorporated by
reference from the Registrant's Form 10-K for the year ended December 31,
1993.
10.4 -Hardinge Brothers, Inc. Executive Supplemental Pension Plan is incorporated
by reference from the Registrant's Form 10-K for the year ended December 31,
1993.
+ 10.5 -Credit Agreement dated as of August 1, 1994 among Hardinge Brothers, Inc., the
Banks signatory thereto and The Chase Manhattan Bank, relating to a $30,000,000
revolving loan.
+ 10.6 -Note Agreement dated August 29, 1991 between Hardinge Brothers, Inc. and
AEtna Life Insurance Company, relating to the issuance by Hardinge Brothers,
Inc. of $5,000,000 principal amount of its 9.38% notes due 1998.
+ 10.7 -Note Agreement dated December 11, 1990 between Hardinge Brothers, Inc. and
AEtna Life Insurance Company, relating to the issuance by Hardinge Brothers,
Inc. of $5,000,000 principal amount of its 9.52% notes due 1995.
+ 10.8 -Employment Agreement with Robert E. Agan dated as of April 1, 1995.
+ 10.9 -Employment Agreement with J. Allan Krul dated as of April 1, 1995.
+ 10.10 -Employment Agreement with Malcolm L. Gibson dated as of April 1, 1995.
+ 10.11 -Employment Agreement with Douglas A. Greenlee dated as of April 1, 1995.
+ 10.12 -Employment Agreement with Douglas C. Tifft dated as of April 1, 1995.
+ 10.13 -Form of Deferred Directors Fee Plan.
+ 10.14 -Description of Incentive Cash Bonus Program.
+ 10.15 -Loan Purchase Agreement dated as of October 26, 1994, between Hardinge
Brothers, Inc. and Chemung Canal Trust Company, relating to the purchase of
$3,000,000 of receivables contracts by Chemung Canal Trust Company from
Hardinge Brothers, Inc.
+ 10.16 -Loan Purchase Agreement dated as of March 24, 1995, between Hardinge
Brothers, Inc. and Chemung Canal Trust Company, relating to the purchase of
$3,000,000 of receivables contracts by Chemung Canal Trust Company from
Hardinge Brothers, Inc.
10.17 -$5,000,000 Master Note executed by Hardinge Brothers, Inc. for the benefit of
Chemung Canal Trust Company dated September 19, 1994.
++23.1 -Consent of Ernst & Young LLP, Independent Auditors.
23.2 -Consent of Shearman & Sterling (included in its opinion filed as Exhibit 5).
+ 24 -Powers of Attorney (see page II-3).
</TABLE>
+ Previously filed as an exhibit to the Registration Statement
(Registration No. 33-91644) filed with the Securities and Exchange Commission on
April 27, 1995.
++ Previously filed as an exhibit to Amendment No. 1 to the Registration
Statement (Registration No. 33-91644) filed with the Securities and Exchange
Commission on May 11, 1995.
Exhibit 1
F&J DRAFT: 05/22/95
HARDINGE INC.
2,282,000 Shares
Common Stock
(Par Value $.01 Per Share)
---------------
UNDERWRITING AGREEMENT
New York, New York
May ___, 1995
WERTHEIM SCHRODER & CO. INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Wertheim Schroder & Co. Incorporated
Equitable Center
787 Seventh Avenue
New York, New York 10019-6016
Dear Sirs:
Hardinge Inc., a New York corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters"), an aggregate of
2,250,000 shares of Common Stock, par value $.01 per share (the "Common Stock"),
and the person named in Schedule II hereto (the "Selling Shareholder") proposes,
subject to the terms and conditions stated herein, to sell to the Underwriters
an aggregate of 32,000 shares of Common Stock. The 2,282,000 shares of Common
Stock to be sold by the Company and the Selling Shareholder are herein referred
to as the "Firm Securities." In addition, the Company proposes to grant to the
Underwriters an option to purchase up to an additional 342,300 shares of Common
Stock (the "Option Securities"), on the terms and for the purposes set forth in
Section 2 hereof. The Firm Securities and the Option Securities are herein
collectively referred to as the "Securities." Except as may be expressly set
forth below, any reference to you in this Agreement shall be solely in your
capacity as the Representatives.
1A. The Company represents and warrants to, and agree with, each
of the Underwriters that:
(a) The Company meets the requirements for use of Form S-2,
and a registration statement on Form S-2 (File No. 33-91644), including
as a part
<PAGE>
thereof a preliminary prospectus, in respect of the Securities, has
been filed with the Securities and Exchange Commission (the
"Commission") in the form heretofore delivered to you and, with the
exception of exhibits to the registration statement, to you for each of
the other Underwriters; if such registration statement has not become
effective, an amendment (the "Final Amendment") to such registration
statement, including a form of final prospectus, necessary to permit
such registration statement to become effective, will promptly be filed
by the Company with the Commission; if such registration statement has
become effective and any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, which amendment or amendments you shall not
have reasonably objected to, the most recent such amendment has been
declared effective by the Commission; if such registration statement
has become effective, a final prospectus (the "Rule 430A Prospectus")
relating to the Securities containing information permitted to be
omitted at the time of effectiveness by Rule 430A of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), will promptly be filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Commission under the
Act (any preliminary prospectus filed as part of such registration
statement being herein called a "Preliminary Prospectus," such
registration statement as amended at the time that it becomes or became
effective, or, if applicable, as amended at the time the most recent
post-effective amendment to such registration statement filed with the
Commission prior to the execution and delivery of this Agreement became
effective (the "Effective Date"), including all exhibits thereto and
all information deemed to be a part thereof at such time pursuant to
Rule 430A of the rules and regulations of the Commission under the Act,
being herein called the "Registration Statement" and the final
prospectus relating to the Securities in the form first filed pursuant
to Rule 424(b)(1) or (4) of the rules and regulations of the Commission
under the Act or, if no such filing is required, the form of final
prospectus included in the Registration Statement, being herein called
the "Prospectus"); any reference herein to any Preliminary Prospectus
or the Prospectus or the Registration Statement shall be deemed to
include any information incorporated by reference therein pursuant to
Item 12 of Form S-2 under the Act, as of the date of such Preliminary
Prospectus, the Prospectus or the Registration Statement, as the case
may be.
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an
-2-
<PAGE>
Underwriter through you expressly for use therein or to the description
of the Company's shareholder rights plan;
(c) On the Effective Date and the date the Prospectus is filed
with the Commission, and when any further amendment or supplements
thereto become effective, or are filed with the Commission, as the case
may be, the Registration Statement, the Prospectus and such amendment
or supplements did and will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(d) The documents incorporated by reference in the Preliminary
Prospectus and the Prospectus pursuant to Item 12 of Form S-2 under the
Act, when they were filed with the Commission, conformed in all
material respects to the requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and regulations of
the Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; since January 1, 1994, the Company has timely filed all
documents with the Commission which were required to be filed under the
Exchange Act and the rules and regulations of the Commission thereunder
on or prior to the date hereof;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New York, with power and authority (corporate and other) to own,
lease and operate its properties and to conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
property, or conducts any business, so as to require such qualification
(except where the failure to so qualify would not have a material
adverse effect on the business, properties, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole); the Company's only subsidiaries are:
Canadian Hardinge Machine Tools, Ltd., Hardinge Machine Tools Ltd. and
Hardinge Brothers GmbH (collectively, the "Subsidiaries"), except for
Hardinge Brothers, Inc., Hardinge Credit Co., Inc., Hardinge
Technologies Systems, Inc., and Morrison Machine Products, Inc., which
own no assets and conduct no current business operations. Each
Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and
-3-
<PAGE>
authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases property, or conducts any
business, so as to require such qualification (except where the failure
to so qualify would not have a material adverse effect on the business,
properties, condition (financial or otherwise) or results of operations
of the Company and its subsidiaries, taken as a whole); Hardinge
Brothers GmbH's net sales during the year ended December 31, 1994 were
less than $1,000,000;
(f) All the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned by the Company
free and clear of all liens, encumbrances, equities, security interests
or claims (except for one share of capital stock of Hardinge Machine
Tools Ltd. that is owned by a director of that company); and there are
no outstanding options, warrants or other rights calling for the
issuance of, and, except as described in the Prospectus, there are no
commitments or arrangements to issue, any shares of capital stock of
any subsidiary or any security convertible or exchangeable or
exercisable for capital stock of any subsidiary; except for the shares
of stock of each subsidiary owned by the Company and the Company's
interest in Egret Aviation Co., neither the Company nor any subsidiary
owns, directly or indirectly, any shares of capital stock of any
corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity;
(g) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement; the
execution, delivery and performance by the Company of its obligations
under this Agreement have been duly and validly authorized by all
requisite corporate action of the Company; and this Agreement
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms;
(h) Neither the Company nor any of its subsidiaries has
sustained since December 31, 1994, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, which loss or interference is
material to the Company and its subsidiaries, taken as a whole; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been, and
prior to the Time of Delivery (as defined in Section 4 hereof) there
will not be, any change in the capital stock (other than shares issued
in connection with the Reclassification (defined below) and pursuant to
exercise of director stock options that the Prospectus indicates are
outstanding and the vesting rights with respect to restricted stock
issued pursuant to the Company's 1988 and 1993 Restricted Stock Plans
(collectively, the "Permitted Shares")) or short-term debt or long-term
debt of the Company or any of its subsidiaries (other than borrowings
-4-
<PAGE>
under the Company's credit facilities described in the Prospectus), or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(i) The Company and its subsidiaries have such title to all
real property and to all personal property owned by them as is
necessary to conduct their respective business as described in the
Prospectus, in each case free and clear of all liens, encumbrances and
restrictions except such as are described or contemplated by the
Prospectus or are not material to the Company and its subsidiaries,
taken as a whole; and any real property held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material to the
Company and its subsidiaries, taken as a whole;
(j) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement under the
caption "Capitalization", and all the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable, are free of any preemptive rights,
rights of first refusal granted by the Company or similar rights, were
issued and sold in compliance with the applicable Federal and state
securities laws and conform in all material respects to the description
in the Prospectus; except as described in the Prospectus, there are no
outstanding options, warrants or other rights calling for the issuance
of, and there are no commitments or arrangements to issue, any shares
of capital stock of the Company or any security convertible or
exchangeable or exercisable for capital stock of the Company; there are
no holders of securities of the Company who, by reason of the filing of
the Registration Statement have the right (and have not waived such
right) to require the Company to include in the Registration Statement
securities owned by them; the Company has filed the amendment to its
Certificate of Incorporation contemplated in the Company's 1995 Proxy
Statement with the Department of State of the State of New York, and
each of the proposed amendments to the Company's Certificate of
Incorporation and By-laws described therein (including, without
limitation, the Reclassification (as defined therein)) has become
effective;
(k) The Securities to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable, and will
conform in all material respects to the description thereof in the
Prospectus; and the Common Stock has been authorized for quotation on
the Nasdaq National Market, subject to notice of issuance; the Common
Stock will be registered under the Exchange Act at the Time of
Delivery;
-5-
<PAGE>
(l) The execution, delivery and performance of this Agreement,
the consummation of the transactions herein contemplated and the issue
and sale of the Securities and the compliance by the Company with all
the provisions of this Agreement will not conflict with, or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien,
charge, claim or encumbrance upon, any of the property or assets of the
Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject; nor will such action result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws, in each
case as amended to the date hereof, of the Company or any of its
subsidiaries; nor will such action result in any violation of any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the issue and sale
of the Securities or the consummation of the other transactions
contemplated by this Agreement, except the registration under the Act
of the Securities, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws or the by-laws of the National
Association of Securities Dealers, Inc. (the "NASD") in connection with
the purchase and distribution of the Securities by the Underwriters;
(m) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries or, to the best knowledge
of the Company, any of their respective officers or directors, is a
party or of which any property of the Company or any of its
subsidiaries is the subject, other than litigation or proceedings which
would not individually or in the aggregate have a material adverse
effect on the business, properties, condition (financial or otherwise),
prospects or results of operations of the Company and its subsidiaries,
taken as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened or contemplated by others; and neither the Company nor
any of its subsidiaries is involved in any material labor dispute, nor,
to the Company's knowledge, is any material labor dispute threatened;
(n) The Company and its subsidiaries have such material
licenses, permits and other approvals or authorizations of and from
governmental or regulatory authorities ("Permits") as are necessary
under applicable law to own their respective properties and to conduct
their respective businesses in the manner now being conducted and as
described in the Prospectus and the Company and its subsidiaries have
fulfilled and performed in all material respects all of their
respective obligations with respect to such Permits, and no
-6-
<PAGE>
event has occurred which allows, or after notice or lapse of time or
both would allow, revocation or termination thereof or result in any
other material impairment of the rights of the holder of any such
Permits;
(o) Ernst & Young LLP who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Registration
Statement and the Prospectus, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder;
(p) (i) The consolidated financial statements and schedules of
the Company and its subsidiaries included or incorporated by reference
in the Registration Statement and the Prospectus present fairly the
financial condition, the results of operations and the cash flows of
the Company and its subsidiaries as of the dates and for the periods
therein specified in conformity with generally accepted accounting
principles consistently applied throughout the periods involved, except
as otherwise stated therein; and the other financial and statistical
information and data set forth in the Registration Statement and the
Prospectus are accurately presented and, to the extent such information
and data are derived from the financial statements and books and
records of the Company and its subsidiaries, are prepared on a basis
consistent with such financial statements and the books and records of
the Company and its subsidiaries; no other financial statements or
schedules are required to be included in the Registration Statement and
the Prospectus;
(ii) The pro forma financial data of the Company
included in the Prospectus are based upon good faith estimates and
assumptions believed by the Company to be reasonable. No pro forma
financial information is required by the Act or the rules or
regulations thereunder to be included in the Registration Statement or
the Prospectus.
(q) There are no statutes or governmental regulations, or any
contracts or other documents that are required to be described in or
filed as exhibits to the Registration Statement which are not described
therein or filed or incorporated by reference as exhibits thereto; and
all such contracts to which the Company or any subsidiary is a party
have been duly authorized, executed and delivered by the Company or
such subsidiary;
(r) The Company and its subsidiaries own or possess adequate
patent rights or licenses or other rights to use patent rights,
inventions, trademarks, service marks, trade names, copyrights,
technology and know-how necessary to conduct their respective
businesses in the manner now being conducted; neither the Company nor
any of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any patent,
patent rights, inventions, trademarks, service marks, trade names,
copyrights,
-7-
<PAGE>
technology or know-how; and the discoveries, inventions, products or
processes of the Company and its subsidiaries referred to in the
Prospectus do not, to the Company's knowledge, infringe or conflict
with any patent or right of any third party, or any discovery,
invention, product or process which is the subject of a patent
application filed by any third party;
(s) Neither the Company nor any of its subsidiaries are in
violation of any term or provision of its Certificate of Incorporation
or By-Laws (or similar corporate constituent documents), in each case
as amended to the date hereof, or in violation in any material respect
of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of its subsidiaries; or in
violation of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries;
(t) No default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, bank loan or credit agreement, a
material lease or other material agreement or material instrument to
which the Company or any of its subsidiaries is a party or by which any
of them or their respective properties is bound or may be affected;
(u) The Company and its subsidiaries have timely filed all
necessary tax returns and notices and have paid all federal, state,
county, local and foreign taxes of any nature whatsoever shown on its
tax returns as being due for all tax years through December 31, 1994,
to the extent such taxes have become due. The Company has no knowledge,
or any reasonable grounds to know, of any tax deficiencies which would
have a material adverse effect on the Company or any of its
subsidiaries taken as a whole; the Company and its subsidiaries have
paid all taxes known to the Company which have become due, whether
pursuant to any assessments, or otherwise, and there is no further
liability (whether or not disclosed on such returns) or assessments for
any such taxes, and no interest or penalties accrued or accruing with
respect thereto, except as may be set forth or adequately reserved for
in the financial statements included or incorporated by reference in
the Registration Statement; the amounts currently set up as provisions
for taxes or otherwise by the Company and its subsidiaries on their
books and records are sufficient for the payment of all their unpaid
federal, foreign, state, county and local taxes accrued through the
dates as of which they speak, and for which the Company and its
subsidiaries may be liable in their own right, or as successor to any
other corporation, association, partnership, joint venture or other
entity;
(v) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation
-8-
<PAGE>
of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; and
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for current assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences;
(w) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any foreign, federal,
state or local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants, nor any federal or state law
relating to discrimination in the hiring, promotion or paying of
employees nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act of 1974,
as amended, or the rules and regulations promulgated thereunder, where
such violation would have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(x) None of the Company or its subsidiaries, or its officers,
directors or employees has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity, or made any unlawful payment of funds of the
Company or any subsidiary or received or retained any funds in
violation of any law, rule or regulation;
(y) None of the Company or its subsidiaries, or its officers
and directors, have taken or will take, directly or indirectly, any
action designed to or which has constituted or that might be reasonably
be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities; and
(z) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
1B. The Selling Shareholder represents and warrants to, and
agrees with, each of the Underwriters that:
(a) The Selling Shareholder has, and at the Time of Delivery
(as defined in Section 4 hereof) will have, good and valid title to the
Securities to be sold by the Selling Shareholder hereunder, free and
clear of any liens, encumbrances, equities, security interests, claims
and other restrictions of any nature whatsoever, and the Selling
Shareholder has the full legal right, power and authority, and any
approval required by law, to execute and deliver this Agreement and to
sell, assign, transfer and deliver the Securities being sold by the
Selling Shareholder hereunder and to make the representations,
warranties,
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<PAGE>
covenants and agreements made by the Selling Shareholder in this
Agreement; and upon the delivery of and payment for such Securities as
herein provided, the several Underwriters will acquire good and valid
title thereto, free and clear of all liens, encumbrances, equities,
security interests, claims and other restrictions of any nature
whatsoever;
(b) The Selling Shareholder has duly executed and delivered an
agreement and power of attorney (with respect to the Selling
Shareholder, the "Power-of-Attorney",) in the form heretofore delivered
to the Representatives, appointing [_________], Scott Garber and any
other duly authorized representative of Marine Midland Bank, as the
Selling Shareholder's attorneys-in-fact (the "Attorney-in-Fact") with
authority to execute, deliver and perform this Agreement on behalf of
the Selling Shareholder. Certificates in negotiable form, endorsed in
blank or accompanied by blank stock powers duly executed, with
signatures appropriately guaranteed, representing the Securities to be
sold by the Selling Shareholder hereunder have been deposited with the
Company, acting as custodian (the "Custodian") pursuant to a custody
agreement (the "Custody Agreement") for the purpose of delivery
pursuant to this Agreement. The Selling Shareholder has full power and
authority to execute and deliver the Custody Agreement and the
Power-of-Attorney and to perform its obligations thereunder. The
Custody Agreement and the Power-of-Attorney have been duly authorized,
executed and delivered by the Selling Shareholder, and this Agreement
has been duly authorized, executed and delivered by the Selling
Shareholder or by the Attorney-in-Fact pursuant to the Power-
of-Attorney. This Agreement, the Custody Agreement and the
Power-of-Attorney are the legal, valid, and binding obligations of the
Selling Shareholder, enforceable against the Selling Shareholder in
accordance with their respective terms. The Selling Shareholder agrees
that each of the Securities represented by the certificates on deposit
with the Custodian is subject to the interests of the Underwriters, the
Company and the Selling Shareholder hereunder, that the arrangements
made for such custody, the appointment of the Attorney-in-Fact and the
right, power and authority of the Attorney-in-Fact to execute and
deliver this Agreement and to carry out the terms of this Agreement,
are to that extent irrevocable and that the obligations of the Selling
Shareholder hereunder shall not be terminated, except as provided in
this Agreement, the Custody Agreement or the Power-of-Attorney, by any
act of the Selling Shareholder, by operation of law or otherwise,
whether in the case of any individual Selling Shareholder by the death
or incapacity of the Selling Shareholder, or in the case of a corporate
or partnership Selling Shareholder by its liquidation or dissolution or
by the occurrence of any other event. If any individual Selling
Shareholder should die or become incapacitated, or if any corporate or
partnership Selling Shareholder shall liquidate or dissolve, or if any
other event should occur, before the delivery of the Securities
hereunder, the certificates for such Securities deposited with the
Custodian shall be delivered by the Custodian in accordance with the
respective terms and conditions of this Agreement as if such death,
incapacity, termination,
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<PAGE>
liquidation or dissolution or other event had not occurred, regardless
of whether or not the Custodian or the Attorney-in-Fact shall have
received notice thereof;
(c) Neither the execution and delivery or performance of this
Agreement or the Agreement, the Custody Agreement and the
Power-of-Attorney or the consummation of the transactions herein or
therein contemplated nor the compliance with the terms hereof or
thereof by the Selling Shareholder will conflict with, or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge, claim or encumbrance on any property of the Selling
Shareholder under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Selling Shareholder is a
party or by which the Selling Shareholder's property is bound, or the
charter documents or by-laws or other organizational documents of such
Selling Shareholder, or any statute, ruling, judgment, decree order, or
regulation of any court or other governmental authority or any
arbitrator having jurisdiction over the Selling Shareholder. All
consents, approvals, authorizations, orders and qualification of or
with any governmental agency or body is required for the sale of the
Securities to be sold by the Selling Shareholder or the consummation of
the other transactions contemplated by this Agreement have been
obtained, except the registration under the Act of the Securities, and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or
Blue Sky laws or the by-laws of the NASD in connection with the
purchase and distribution of the Securities by the Underwriters;
(d) The sale by the Selling Shareholder of Securities pursuant
hereto is not prompted by any adverse information concerning the
Company that is not set forth in the Registration Statement or the
Prospectus;
(e) At the Time of Delivery, all stock transfer or other taxes
(other than income taxes) which are required to be paid in connection
with the sale and transfer of the Securities to be sold by the Selling
Shareholder to the several Underwriters hereunder will have been fully
paid or provided for by the Selling Shareholder and all laws imposing
such taxes will have been fully complied with; and
(f) The Selling Shareholder has read all information with
respect to the Selling Shareholder contained in the Prospectus and the
Registration Statement, and such information does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances in which they were
made, not misleading.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters an aggregate of 2,250,000
Firm Securities, the Selling Shareholder agrees to sell to the several
Underwriters the number of Firm
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<PAGE>
Securities set forth on Schedule II opposite the name of the Selling Shareholder
and each of the Underwriters agrees to purchase from the Company and the Selling
Shareholder, at a purchase price of $__________ per share, the respective
aggregate number of Firm Securities determined in the manner set forth below.
The obligation of each Underwriter to the Company and the Selling Shareholder,
respectively, shall be to purchase that portion of the number of shares of
Common Stock to be sold by the Company or the Selling Shareholder pursuant to
this Agreement as the number of Firm Securities set forth opposite the name of
such Underwriter on Schedule I bears to the total number of Firm Securities to
be purchased by the Underwriters pursuant to this Agreement, in each case
adjusted by you such that no Underwriter shall be obligated to purchase Firm
Securities other than in 100 share amounts. In making this Agreement, each
Underwriter is contracting severally and not jointly.
In addition, subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the Underwriters, as required (for the sole
purpose of covering over-allotments in the sale of the Firm Securities), up to
342,300 Option Securities at the purchase price per share of the Firm Securities
being sold by the Company as stated in the preceding paragraph. The right to
purchase the Option Securities may be exercised by your giving 48 hours' prior
written or telephonic notice (subsequently confirmed in writing) to the Company
of your determination to purchase all or a portion of the Option Securities.
Such notice may be given at any time within a period of 30 calendar days
following the date of this Agreement. Option Securities shall be purchased
severally for the account of each Underwriter in proportion to the number of
Firm Securities set forth opposite the name of such Underwriter in Schedule I
hereto. No Option Securities shall be delivered to or for the accounts of the
Underwriters unless the Firm Securities shall be simultaneously delivered or
shall theretofore have been delivered as herein provided. The respective
purchase obligations of each Underwriter shall be adjusted by you so that no
Underwriter shall be obligated to purchase Option Securities other than in 100
share amounts. The Underwriters may cancel any purchase of Option Securities at
any time prior to the Option Securities Delivery Date (as defined in Section 4
hereof) by giving written notice of such cancellation to the Company.
3. The Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. Certificates in definitive form for the Firm Securities to be
purchased by each Underwriter hereunder shall be delivered by or on behalf of
the Company and the Selling Shareholder to you for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks, payable
in New York Clearing House funds, to the order of the Company, for the purchase
price of the Firm Securities being sold by the Company, and to the order of
Marine Midland Bank for the purchase price of the Firm Securities being sold by
the Selling Shareholder, at the office of Wertheim Schroder & Co. Incorporated,
Equitable Center, 787 Seventh Avenue, New York, New York, at 9:30 A.M., New York
City time, on __________ __, 1995, or at such other time, date and
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<PAGE>
place as you and the Company may agree upon in writing, such time and date being
herein called the "Time of Delivery."
Certificates in definitive form for the Option Securities to be
purchased by each Underwriter hereunder shall be delivered by or on behalf of
the Company to you for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price thereof by certified or
official bank check or checks, payable in New York Clearing House funds, to the
order of the Company, for the purchase price of the Option Securities, in New
York, New York, at such time and on such date (not earlier than the Time of
Delivery nor later than ten business days after giving of the notice delivered
by you to the Company with reference thereto) and in such denominations and
registered in such names as shall be specified in the notice delivered by you to
the Company with respect to the purchase of such Option Securities. The date and
time of such delivery and payment are herein sometimes referred to as the
"Option Securities Delivery Date." The obligations of the Underwriters shall be
subject, in their discretion, to the condition that there shall be delivered to
the Underwriters on the Option Securities Delivery Date opinions and
certificates, dated such Option Securities Delivery Date, referring to the
Option Securities, instead of the Firm Securities, but otherwise to the same
effect as those required to be delivered at the Time of Delivery pursuant to
Section 7(d), 7(e), 7(f), 7(g), 7(j) and 7(k).
Certificates for the Firm Securities and the Option Securities so to
be delivered will be in good delivery form, and in such denominations and
registered in such names as you may request not less than 48 hours prior to the
Time of Delivery and the Option Securities Delivery Date, respectively. Such
certificates will be made available for checking and packaging in New York, New
York, at least 24 hours prior to the Time of Delivery and Option Securities
Delivery Date.
5. (a) The Company covenants and agrees with each of the
Underwriters:
(i) If the Registration Statement has not become
effective, to file promptly the Final Amendment with the
Commission and use its best efforts to cause the Registration
Statement to become effective; if the Registration Statement
has become effective, to file promptly the Rule 430A
Prospectus with the Commission; to make no further amendment
or any supplement to the Registration Statement or Prospectus
to which you shall reasonably object after reasonable notice
thereof; to advise you, promptly after it receives notice
thereof of the time when the Registration Statement, or any
amendment thereto, or any amended Registration Statement has
become effective or any supplement to the Prospectus or any
amended Prospectus has been filed, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending
or
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<PAGE>
supplementing of the Registration Statement or Prospectus or
for additional information; and in the event of the issuance
of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best
efforts to obtain withdrawal of such order;
(ii) Promptly from time to time to take such action
as you may reasonably request to qualify the Securities for
offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws
so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to
complete the distribution, provided that in connection
therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction;
(iii) To furnish each of the Representatives and
counsel for the Underwriters, without charge, signed copies of
the registration statement originally filed with respect to
the Securities and each amendment thereto (in each case
including all exhibits thereto) and to each other Underwriter
a conformed copy of such registration statement and each
amendment thereto (in each case without exhibits thereto) and,
so long as a prospectus relating to the Securities is required
to be delivered under the Act, as many copies of each
Preliminary Prospectus, the Prospectus and all amendments or
supplements thereto as you may from time to time reasonably
request. If at any time when a prospectus is required to be
delivered under the Act an event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or if for any other reason it shall be necessary
to amend or supplement the Prospectus in order to comply with
the Act, the Company will notify you and forthwith prepare
and, subject to the provisions of Section 5(a) hereto, file
with the Commission an appropriate supplement or amendment
thereto, and will furnish to each Underwriter and to any
dealer in securities, without charge, as many copies as you
may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will
correct such statement or admission or effect such compliance
in accordance with the requirements of Section 10 of the Act;
and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Securities
at any time 15 months or more after the time of issue of the
Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as
many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
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<PAGE>
(iv) To make generally available to its shareholders
as soon as practicable, but in any event not later than 45
days after the close of the period covered thereby, an earning
statement in form complying with the provisions of Section
11(a) of the Act covering a period of 12 consecutive months
beginning not later than the first day of the Company's fiscal
quarter next following the Effective Date;
(v) To file promptly all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15(d)
of the Exchange Act subsequent to the Effective Date and
during any period when the Prospectus is required to be
delivered;
(vi) For a period of five years from the Effective
Date, to furnish to its shareholders after the end of each
fiscal year an annual report (including a consolidated balance
sheet and statements of income, cash flow and shareholders'
equity of the Company and its subsidiaries certified by
independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after
the Effective Date), consolidated summary financial
information of the Company and its subsidiaries for such
quarter in reasonable detail;
(vii) During a period of five years from the
Effective Date, to furnish to you copies of all reports or
other communications (financial or other) furnished to its
shareholders, and deliver to you (i) a reasonable time after
they are so furnished or filed, copies of any reports and
financial statements furnished to or filed with the Commission
or any national securities exchange or automated quotation
system on which any class of securities of the Company is
listed or quoted; and (ii) such additional information
concerning the business and financial condition of the Company
as you may from time to time reasonably request in connection
with your obligations hereunder;
(viii) To apply the net proceeds from the sale of the
Securities in the manner set forth in the Prospectus under the
caption "Use of Proceeds";
(ix) That it will not, and will cause its
subsidiaries, officers and directors not to, take, directly or
indirectly, any action designed to cause or result in, or that
might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the
Securities;
(x) That prior to the Time of Delivery there will not
be any change in the capital stock or material change in the
short-term debt or long-term debt of the Company or any of its
subsidiaries (other than
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<PAGE>
borrowings under the Company's credit facilities described in
the Prospectus), or any material adverse change, or any
development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the
Company or any of its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(xi) That it will not, and will cause each of its
directors and officers, the Selling Shareholder and the other
shareholders of the Company listed on Schedule III hereto (the
"Other Shareholders") to enter into agreements with you, in
form and substance satisfactory to you, to the effect that
they will not, during the period of 180 days after the date
hereof (other than pursuant to this Agreement), offer to sell,
sell, contract to sell, pledge or otherwise dispose of any
capital stock of the Company (or securities convertible into,
or exchangeable for, capital stock of the Company), directly
or indirectly, without the prior written consent of Wertheim
Schroder & Co. Incorporated, except (x) in the case of the
Company, for grants of restricted stock under the Company's
Stock Incentive Plan up to the amount reserved for such
issuances disclosed in the Prospectus or pursuant to the terms
of convertible securities of the Company outstanding on the
date hereof and (y) in the case of the persons executing the
agreements referred to above, for the transfer of Common Stock
by gift subject to the condition that the donee of such Common
Stock agrees to be bound by the restrictions on transfer
described above;
(xii) That it will use its best efforts to maintain
the quotation of the Common Stock on the Nasdaq National
Market; and
(xiii) To file with the Commission such reports on
Form SR as may be required pursuant to Rule 463 under the Act.
(b) The Selling Shareholder covenants and agrees with each of
the Underwriters that:
(i) The Selling Shareholder will not, during the
period of 180 days after the date hereof, except pursuant to
this Agreement, offer to sell, sell, contract to sell, pledge
or otherwise dispose of any capital stock of the Company (or
securities convertible into, or exchangeable for, capital
stock of the Company), directly or indirectly, without the
prior written consent of Wertheim Schroder & Co. Incorporated,
except for the transfer of Common Stock by gift subject to the
condition that the donee of such Common Stock agrees to be
bound by the restrictions on transfer described above;
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<PAGE>
(ii) The Selling Shareholder will not, directly or
indirectly, take any action designed to cause or result in, or
that has constituted 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 Securities;
(iii) As soon as any of the individual trustees of
the Selling Shareholder are advised thereof, the Selling
Shareholder will advise the Representatives and confirm such
advice in writing, (i) of receipt by the Selling Shareholder
or by any representative or agent of the Selling Shareholder,
of any communication from the Commission relating to the
Registration Statement, the Prospectus or any Preliminary
Prospectus, or any notice or order of the Commission relating
to the Company or the Selling Shareholder in connection with
the transactions contemplated by this Agreement and (ii) of
the happening of any event which makes or may make any
statement made in the Registration Statement, the Prospectus
or any Preliminary Prospectus untrue or that requires the
making of any change in the Registration Statement, Prospectus
or Preliminary Prospectus, as the case may be, in order to
make such statement, in light of the circumstances in which it
was made, not misleading; and
(iv) The Selling Shareholder will deliver to the
Representatives prior to the Time of Delivery a properly
completed and executed United States Treasury Department Form
W-9.
(v) The Selling Shareholder covenants and agrees that
it will pay for the fees, disbursements and expenses of its
counsel.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid: (i) the fees, disbursements and
expenses of counsel and accountants for the Company and all other expenses, in
connection with the preparation, printing and filing of the Registration
Statement and the Prospectus and amendments and supplements thereto and the
furnishing of copies thereof, including charges for mailing, air freight and
delivery and counting and packaging thereof and of any Preliminary Prospectus
and related offering documents to the Underwriters and dealers; (ii) the cost of
printing this Agreement, the Agreement Among Underwriters, the Selling
Agreement, communications with the Underwriters and selling group, the Canadian
Private Offering Memorandum and the Preliminary and Supplemental Blue Sky
Memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under securities laws as
provided in Section 5(a)(ii) hereof, including filing and registration fees and
the fees, disbursements and expenses for counsel for the Underwriters in
connection with such qualification and in connection with Blue Sky surveys or
similar advice with respect to sales; (iv) the filing fees incident to, and the
fees and disbursements of
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<PAGE>
counsel for the Underwriters in connection with, securing any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (v) all fees and expenses in connection with quotation of the
Securities on the Nasdaq National Market; and (vi) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 6, including the fees of the Company's
Transfer Agent and Registrar, the cost of any stock issue or transfer taxes on
sale of the Securities to the Underwriters, the cost of the Company's personnel
and other internal costs, the cost of printing and engraving the certificates
representing the Securities and all expenses and taxes incident to the sale and
delivery of the Securities to be sold by the Company and the Selling Shareholder
to the Underwriters hereunder. The Selling Shareholder will pay any transfer
taxes incident to the transfer to the Underwriters of the Securities being sold
by such Selling Shareholder.
It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company and the Selling Shareholder herein are, at and
as of the Time of Delivery, true and correct, the condition that the Company and
the Selling Shareholder shall have performed all its and their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Registration Statement shall have become effective,
and you shall have received notice thereof not later than 12:00 Noon,
New York City time, on the first full business day following the date
of execution of this Agreement, or at such other time as you and the
Company may agree; if required, the Prospectus shall have been filed
with the Commission in the manner and within the time period required
by Rule 424(b); no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable
satisfaction;
(b) All corporate proceedings and related legal and other
matters in connection with the organization of the Company and the
registration, authorization, issue, sale and delivery of the Securities
shall have been reasonably satisfactory to Fulbright & Jaworski L.L.P.,
counsel to the Underwriters, and Fulbright & Jaworski L.L.P. shall have
been timely furnished with such papers and information as they may
reasonably have requested to enable them to pass upon the matters
referred to in this subsection;
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<PAGE>
(c) You shall not have advised the Company or any Selling
Shareholder that the Registration Statement or Prospectus, or any
amendment or supplement thereto, contains an untrue statement of fact
or omits to state a fact which in your judgment is in either case
material and in the case of an omission is required to be stated
therein or is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) Shearman & Sterling, special counsel to the Company, shall
have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of New York;
(ii) The Securities being sold by the Company have
been duly authorized and, when duly countersigned by the
Company's Transfer Agent and Registrar and issued, delivered
and paid for in accordance with the provisions of the
Registration Statement and this Agreement, will be validly
issued, fully paid and non-assessable, and such shares are not
subject to the preemptive rights of any shareholder; the
Securities conform in all material respects to the description
thereof in the Prospectus; and the certificates for the
Securities comply as to form with the laws of the State of New
York;
(iii) The Securities being sold by the Selling
Shareholder have been duly authorized and validly issued and
are fully paid and non-assessable; and none of such Securities
was issued in violation of the preemptive rights of any
shareholder of the Company;
(iv) All of the other outstanding shares of capital
stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued
in violation of the preemptive rights of any shareholder of
the Company;
(v) The Company has an authorized capitalization as
set forth in the Registration Statement under the caption
"Description of Capital Stock";
(vi) The Common Stock has been duly authorized for
quotation on the Nasdaq National Market, subject to notice of
issuance; the Common Stock has been registered under the
Exchange Act;
(vii) The Company has full corporate power and
authority to execute, deliver and perform its obligations
under this Agreement; this
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<PAGE>
Agreement has been duly authorized, executed and delivered by
the Company; and this Agreement constitutes the legal, valid
and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforceability
of the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally and except as enforceability of
those provisions relating to indemnity may be limited by the
Federal securities laws, principles of public policy and
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law);
(viii) The execution, delivery and performance of
this Agreement, the consummation of the transactions herein
contemplated and the issue and sale of the Securities and the
compliance by the Company with all of the provisions of this
Agreement will not violate the provisions of the Certificate
of Incorporation or the By-laws of the Company, as amended to
the date hereof;
(ix) All outstanding shares of the Company's Class A
Common Stock, par value $5.00 per share, and Class B Common
Stock, par value $5.00 per share, were converted into shares
of Common Stock at the ratios of 2.00 to 1 and 2.05 to 1,
respectively, pursuant to an amendment (the "Amendment") to
the Company's Certificate of Incorporation which was filed
with the Secretary of State of the State of New York and
became effective on _______________, 1995. The filing of the
Amendment with the Department of State of the State of New
York was duly authorized by the Company and its shareholders
and the Amendment complied in all respects with applicable
law; and
(x) No consent, approval, authorization, order,
registration or qualification of or with any court or any
regulatory authority or other governmental body is required
for the issue and sale of the Securities or the consummation
of the other transactions contemplated by this Agreement,
except such as have been obtained under the Act, or may be
required under state or foreign securities or blue sky laws or
the by-laws of the NASD in connection with the purchase and
distribution of the Securities by the Underwriters;
(xi) The Registration Statement has become effective
under the Act, the Prospectus has been filed in accordance
with Rule 424(b) of the rules and regulations of the
Commission under the Act, including the applicable time
periods set forth therein, or such filing is not required and,
to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or are pending under the Act; the Registration
Statement, the Prospectus, excluding documents
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incorporated by reference therein, and each amendment or
supplement thereto (other than the financial statements and
related schedules and other financial or statistical data
included therein or omitted therefrom, as to which such
counsel need express no opinion), as of their respective
effective or issue dates, appear on their face to conform in
all material respects to the requirements of the Act and the
rules and regulations thereunder; the documents incorporated
by reference in the Prospectus (other than the financial
statements and related schedules and other financial or
statistical data included therein or omitted therefrom, as to
which such counsel need express no opinion, and except to the
extent that any statement therein is modified or superseded in
the Prospectus), as of the dates they were filed with the
Commission, appear on their face to conform in all material
respects to the requirements of the Exchange Act and the rules
and regulations thereunder.
(xii) To the extent summarized therein, all contracts
and agreements summarized in the Registration Statement and
the Prospectus are fairly summarized therein, conform in all
material respects to the descriptions thereof contained
therein, and, to the extent such contracts or agreements or
any other material agreements are required under the Act or
the rules and regulations thereunder to be filed as exhibits
to the Registration Statement or incorporated by reference
therein, they are so filed or incorporated by reference; and
such counsel does not know of any contracts or other documents
required to be summarized or disclosed in the Prospectus or to
be so filed as an exhibit to the Registration Statement or
incorporated by reference therein, which have not been so
summarized or disclosed, or so filed or incorporated by
reference;
(xiii) All descriptions in the Prospectus of
statutes, regulations or legal or governmental proceedings are
fair summaries thereof and fairly present the information
required to be shown with respect to such matters;
Such counsel shall also state that nothing has come to such counsel's
attention that would lead such counsel to believe that either the Registration
Statement or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom), at the time such Registration Statement or amendment or supplement
became effective, or the Prospectus or any amendment or supplement thereto
(except for the financial statements and other financial or statistical data
included therein or omitted therefrom), as of its date and as of the Time of
Delivery, contains or contained any untrue statement of material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
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In rendering their opinions set forth in Section 7(d) above, such
counsel may (a) rely as to factual matters, upon certificates of public
officials and officers of the Company, and (b) state that they express no
opinion as to the laws of any jurisdiction other than the law of the State of
New York and the federal laws of the United States;
(e) Sayles, Evans, Brayton, Palmer & Tifft, counsel to the Company,
shall have furnished to you their written opinion, dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of New York and is qualified to do business
and is in good standing in each jurisdiction in which its
ownership or leasing of properties requires such qualification
or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a
material adverse effect on the business, properties, condition
(financial or otherwise), prospects or results of operations
of the Company and its subsidiaries, taken as a whole; and the
Company has all necessary corporate power and, to the best
knowledge of such counsel, all material governmental
authorizations, permits and approvals required under such laws
to own, lease and operate its properties and conduct its
business as described in the Prospectus;
(ii) All the outstanding shares of capital stock of
each of the subsidiaries are owned by the Company of record
and to the knowledge of such counsel, (A) beneficially and (B)
free and clear of any security interest, adverse claim of any
nature whatsoever or encumbrance; to the knowledge of such
counsel, there are no outstanding options, warrants or other
rights calling for the issuance of, and there are no
commitments or arrangements to issue, any shares of capital
stock of any subsidiary (other than to the Company);
(iii) The Company has an authorized capitalization as
set forth in the Registration Statement under the caption
"Description of Capital Stock"; except as described in the
Prospectus, to the knowledge of such counsel, there are no
outstanding options, warrants or other rights calling for the
issuance of, and there are no commitments, plans or
arrangements to issue any shares of, capital stock of the
Company; the Securities conform in all material respects to
the description thereof in the Prospectus;
(iv) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of the subsidiaries is a party or of which any property of
the Company or any of the subsidiaries is the subject which,
if determined adversely to the Company
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or any subsidiary, would individually or in the aggregate have
a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole;
(v) This Agreement has been duly authorized, executed
and delivered by the Company;
(vi) The execution, delivery and performance of this
Agreement, the consummation of the transactions herein
contemplated and the issue and sale of the Securities and the
compliance by the Company with all the provisions of this
Agreement will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge,
claim or encumbrance upon, any of the property or assets of
the Company or any subsidiary pursuant to, the terms of any
indenture, mortgage, deed of trust, loan agreement or other
material agreement or material instrument known to such
counsel to which the Company or any subsidiary is a party or
by which the Company or any subsidiary is bound or to which
any of the property or assets of the Company or any subsidiary
is subject, or to the best knowledge of such counsel any
statute or any order, rule or regulation (other than the
federal and foreign securities laws or blue sky laws of the
various states, as to which such counsel need express no
opinion) known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any
subsidiary or any of their properties, nor will such action
result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any subsidiary;
(vii) To the best of such counsel's knowledge,
neither the Company nor any subsidiary is currently (A) in
violation of its Certificate of Incorporation or By-laws (or
similar corporate constituent documents), in each case as
amended to the date hereof; or (B) in default under any
indenture, mortgage, deed of trust, lease, bank loan or credit
agreement or any material other agreement or material
instrument of which such counsel has knowledge to which the
Company or any subsidiary is a party or by which any of them
or any of their property may be bound, or in violation of any
law, ordinance, rule or regulation applicable to the Company
or any of its subsidiaries, or of any decree of any court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries (except for such defaults
or violations, either individually or in the aggregate, which
will not have a material adverse effect on the business,
properties, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a
whole);
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<PAGE>
(viii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any Securities pursuant to the
Company's Certificate of Incorporation or By-Laws, in each
case as amended to the date hereof, or any agreement or other
instrument known to such counsel; and, to such counsel's
knowledge, no holders of securities of the Company (other than
the Selling Shareholder) have rights to the registration
thereof under the Registration Statement or, if any such
holders have such rights, such holders have waived such
rights;
Such counsel shall also state that nothing has come to such counsel's
attention that would lead such counsel to believe that either the Registration
Statement or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom), at the time such Registration Statement or amendment or supplement
became effective, or the Prospectus or any amendment or supplement thereto
(except for the financial statements and other financial or statistical data
included therein or omitted therefrom), as of its date and as of the Time of
Delivery, contains or contained any untrue statement of material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
In rendering their opinions set forth in Section 7(e) above, such
counsel may (a) rely as to factual matters, upon certificates of public
officials and officers of the Company, and (b) state that they express no
opinion as to the laws of any jurisdiction other than the law of the State of
New York and the federal laws of the United States;
(f) Borden & Elliot, counsel to the Company, shall have furnished to
you their written opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Canadian Hardinge Machine Tools Ltd. has been duly and
validly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is
qualified to do business and is in good standing in each jurisdiction
in which its ownership or leasing of properties requires such
qualification or the conduct of its business requires such
qualification (except where the failure to so qualify would not have a
material adverse effect on the business, properties, condition
(financial or otherwise), prospects or results of operations of the
Company and its subsidiaries, taken as a whole), and has all necessary
corporate power and all material government authorizations, permits and
approvals required to own, lease and operate its properties and to
conduct its business as currently being conducted;
(ii) all the outstanding shares of capital stock of Canadian
Hardinge Machine Tools Ltd. have been duly authorized and are validly
issued and
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<PAGE>
outstanding, are fully paid and non-assessable and are owned by the
Company of record and to the best knowledge of such counsel, (A)
beneficially and (B) free and clear of all liens, encumbrances,
equities, security interests or claims of any nature whatsoever; to the
knowledge of such counsel, there are no outstanding options, warrants
or other rights calling for the issuance of, and there are no
commitments, plans or arrangements to issue, any shares of capital
stock thereof.
In rendering their opinions set forth in Section 7(f) above, such
counsel may rely, to the extent deemed advisable by such counsel, (a) as to
factual matters, upon certificates of public officials and officers of Canadian
Hardinge Machine Tools Ltd., and (b) as to the laws of any jurisdiction other
than Canada and jurisdictions in which they are admitted;
(g) Linklaters & Paines, counsel to the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) Hardinge Machine Tools Ltd. has been duly and
validly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation and is qualified to do business and is in good
standing in each jurisdiction in which its ownership or
leasing of properties requires such qualification or the
conduct of its business requires such qualification (except
where the failure to so qualify would not have a material
adverse effect on the business, properties, condition
(financial or otherwise), prospects or results of operations
of the Company and its subsidiaries, taken as a whole), and
has all necessary corporate power and all material government
authorizations, permits and approvals required to own, lease
and operate its properties and to conduct its business as
currently being conducted;
(ii) All the outstanding shares of capital stock of
Hardinge Machine Tools Ltd. have been duly authorized and are
validly issued and outstanding, are fully paid and
non-assessable and are owned by the Company of record and to
the best knowledge of such counsel, (A) beneficially and (B)
free and clear of all liens, encumbrances, equities, security
interests or claims of any nature whatsoever; to the knowledge
of such counsel, there are no outstanding options, warrants or
other rights calling for the issuance of, and there are no
commitments, plans or arrangements to issue, any shares of
capital stock thereof.
In rendering their opinions set forth in Section 7(g) above, such
counsel may rely, to the extent deemed advisable by such counsel, (a) as to
factual matters, upon certificates of public officials and officers of Hardinge
Machine Tools Ltd., and (b) as
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<PAGE>
to the laws of any jurisdiction other than England and jurisdictions in which
they are admitted;
(h) With respect to the Selling Shareholder, Hancock &
Estabrook, counsel for the Selling Shareholder, shall have furnished to
you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you and to Fulbright & Jaworski L.L.P. to the
effect that:
(i) The Selling Shareholder has the full legal right,
power and authority to enter into this Agreement, the Custody
Agreement and the Power-of-Attorney and to sell, transfer and
deliver the Securities being sold by the Selling Shareholder
hereunder in the manner provided in this Agreement and to
perform its obligations under the Custody Agreement and the
Power-of-Attorney; this Agreement has been duly authorized,
executed and delivered by the Selling Shareholder or on behalf
of the Selling Shareholder by the Attorney-in-Fact; the
Custody Agreement and the Power-of-Attorney have been duly
authorized, executed and delivered by the Selling Shareholder;
this Agreement, the Custody Agreement and the
Power-of-Attorney constitute the legal, valid and binding
obligations of the Selling Shareholder, enforceable in
accordance with their respective terms, except as enforcement
of the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally and subject, as to enforceability,
to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(ii) upon delivery of and payment for the Securities
being sold by the Selling Shareholder, the several
Underwriters will receive good and valid title to such
Securities, free and clear of all liens, encumbrances,
equities, security interests, claims or other defects;
(iii) the sale of the Securities to the Underwriters
by the Selling Shareholder pursuant to this Agreement, the
compliance by the Selling Shareholder with the other
provisions of this Agreement, the Custody Agreement and the
Power-of-Attorney and the consummation of the other
transactions herein and therein contemplated do not (i)
conflict with, or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge,
claim or encumbrance on any property of the Selling
Shareholder under, any indenture, mortgage, deed of trust,
lease or other agreement or instrument known to such counsel
to which the Selling Shareholder is a party or by which the
Selling Shareholder or any of the Selling Shareholder's
property is bound, or the certificate of incorporation or
by-laws or similar organizational documents of the Selling
Shareholder, or any statute or any judgment, decree, order,
rule or regulation of any court or other governmental
authority or any arbitrator applicable to the
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<PAGE>
Selling Shareholder, or (ii) require the consent, approval,
authorization, order, registration or qualification of or with
any governmental authority, except such as have been obtained
and such as may be required under the Act and such as may be
required under state or foreign securities, Blue Sky laws, or
the by-laws of the NASD in connection with the purchase and
distribution of such Securities by the Underwriters; and
(iv) there are no stock transfer taxes (other than
income taxes) known to such counsel payable in connection with
the sale and delivery of the Securities by the Selling
Shareholder to the several Underwriters or all such taxes have
been fully paid in connection with such sale and delivery.
In rendering such opinion, such counsel may rely, to the extent deemed
advisable by such counsel, (a) as to factual matters, upon certificates of
public officials and the Selling Shareholder and (b) upon certificates of state
officials.
(i) Fulbright & Jaworski L.L.P., counsel to the Underwriters,
shall have furnished to you their written opinion or opinions, dated
the Time of Delivery, in form and substance satisfactory to you, with
respect to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and other
related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(j) At the time this Agreement is executed and also at the
Time of Delivery, Ernst & Young LLP shall have furnished to you a
letter or letters, dated the date of this Agreement and the Time of
Delivery, in form and substance satisfactory to you, to the effect,
that:
(i) They are independent accountants with respect to
the Company and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion the consolidated financial
statements of the Company and its subsidiaries (including the
related schedules and notes) included or incorporated by
reference in the Registration Statement and Prospectus and
covered by their reports included or incorporated by reference
therein comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange
Act, as applicable and the published rules and regulations
thereunder;
(iii) On the basis of specified procedures as of a
specified date not more than five days prior to the date of
their letter (which procedures do not constitute an
examination made in accordance with generally accepted
auditing standards), consisting of a reading of the latest
available
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unaudited interim consolidated financial statements of the
Company and its subsidiaries, a reading of the latest
available minutes of any meeting of the Board of Directors and
shareholders of the Company and its subsidiaries since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries who have
responsibility for financial and accounting matters, and such
other procedures or inquiries as are specified in such letter,
nothing came to their attention that caused them to believe
that:
(A) The unaudited consolidated financial
statements of the Company and its subsidiaries
included in the Prospectus do not comply as to form
in all material respects with the applicable
accounting requirements of the Act and the rules and
regulations promulgated thereunder or are not
presented in conformity with generally accepted
accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements included in the
Registration Statement and the Prospectus;
(B) as of a specified date not more than
five days prior to the date of their letter, there
was any change in the capital stock, or the long-term
debt or short-term debt of the Company and its
subsidiaries on a consolidated basis, or any decrease
in total assets, net current assets, net assets or
shareholders' equity or other items specified by the
Representatives, of the Company and its subsidiaries
on a consolidated basis, each as compared with the
amounts shown on the March 31, 1995 consolidated
balance sheet included in the Registration Statement
and the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses
have occurred or may occur or such other changes,
decreases or increases which are described in their
letter and which do not, in the sole judgment of the
Representatives, make it impractical or inadvisable
to proceed with the purchase and delivery of the
Securities as contemplated by the Registration
Statement; and
(C) for the period from April 1, 1995 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 of the
preceding fiscal year, in the following consolidated
amounts: net sales, income from operations, income
before provision for income taxes, net income or net
income per share of the Company and its subsidiaries
except in all instances for decreases which the
Registration Statement discloses have occurred or may
occur; or such other decreases which are described in
their letter and which
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do not, in the sole judgment of the Representatives,
make it impractical or inadvisable to proceed with
the purchase and delivery of the Securities as
contemplated by the Registration Statement; and
(iv) in addition to the examination referred to in
their reports included in the Registration Statement and the
Prospectus and the limited procedures referred to in clause
(iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by
the Representatives, which are derived from the general
accounting records of the Company and its subsidiaries which
appear in the Prospectus, or in Part II of, or in exhibits and
schedules to, (a) the Registration Statement, (b) the
Company's Annual Report on Form 10-K for the year ended
December 31, 1994 (including the information from the
Company's 1995 Proxy Statement incorporated by reference
therein), and (c) the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1995, and have compared such
amounts and financial information with the accounting records
of the Company and its subsidiaries, and have found them to be
in agreement and have proved the mathematical accuracy of
certain specified percentages.
(k) Neither the Company nor any of the subsidiaries shall have
sustained since December 31, 1994, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, which loss or interference is
material to the Company and its subsidiaries, taken as a whole, other
than as set forth or contemplated in the Prospectus; and since the
respective dates as of which information is given in the Prospectus,
there shall not have been any change in the capital stock (other than
shares issued in connection with the Reclassification and Permitted
Shares) or short-term debt or long-term debt of the Company or any of
its subsidiaries (other than borrowings under its credit facilities
which facilities are disclosed in the Prospectus) nor any change or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case is in your judgment so material and adverse as
to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus;
(l) Between the date hereof and the Time of Delivery there
shall have been no declaration of war by the Government of the United
States; at the Time of Delivery there shall not have occurred any
material adverse change in the financial or securities markets in the
United States or in political, financial or
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economic conditions in the United States or any outbreak or material
escalation of hostilities or other calamity or crisis, the effect of
which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the
resale of Securities and no event shall have occurred resulting in (i)
trading in securities generally on the New York Stock Exchange or in
the Common Stock on the principal securities exchange or market in
which the Common Stock is listed or quoted being suspended or limited
or minimum or maximum prices being generally established on such
exchange[s] or market, or (ii) additional material governmental
restrictions, not in force on the date of this Agreement, being imposed
upon trading in securities generally by the New York Stock Exchange or
in the Common Stock on the principal securities exchange or market in
which the Common Stock is listed or quoted or by order of the
Commission or any court or other governmental authority, or (iii) a
general banking moratorium being declared by either Federal or New York
authorities;
(m) The Company and the Selling Shareholder shall have
furnished or caused to be furnished to you at the Time of Delivery
certificates signed by the chief executive officer and the chief
financial officer, on behalf of the Company, and by the Selling
Shareholder or the Attorney-in-Fact on behalf of the Selling
Shareholder, satisfactory to you as to such matters as you may
reasonably request and as to (i) the accuracy of its and their
respective representations and warranties herein at and as of the Time
of Delivery and (ii) the performance by the Company and the Selling
Shareholder of all their respective obligations hereunder to be
performed at or prior to the Time of Delivery; the Company shall have
furnished or caused to be furnished to you at the Time of Delivery a
certificate signed by the chief executive officer and the chief
financial officer, on behalf of the Company, as to (i) the fact that
they have carefully examined the Registration Statement and Prospectus
and, (a) as of the Effective Date, the statements contained or
incorporated by reference in the Registration Statement and the
Prospectus were true and correct and neither the Registration Statement
nor the Prospectus omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading and (b) since the Effective Date, no event has occurred that
is required by the Act or the rules and regulations of the Commission
thereunder to be set forth in an amendment of, or a supplement to, the
Prospectus that has not been set forth in such an amendment or
supplement; and (ii) the matters set forth in subsection (a) of this
Section 7;
(n) Each director, officer, Selling Shareholder and Other
Shareholder shall have delivered to you an agreement not to offer,
sell, contract to sell or otherwise dispose of any shares of capital
stock of the Company (or securities convertible into, or exchangeable
for, capital stock of the Company), directly or indirectly, for a
period of 180 days after the date of this Agreement, without the prior
written consent of Wertheim Schroder & Co. Incorporated, except for the
transfer of Common Stock by gift subject to the condition that the
donee of such
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Common Stock agrees to be bound by the restrictions on transfer
described above; and
(o) The Company shall have delivered to you evidence that the
Securities have been authorized for quotation on the Nasdaq National
Market as of the Effective Date.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained or incorporated by reference in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or in any Blue Sky application or other document executed by
the Company specifically for that purpose or based upon information furnished by
the Company filed in any state or other jurisdiction in order to qualify any or
all of the Securities under the securities laws thereof or filed with the
Commission or any securities association or securities exchange (each, an
"Application"), or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements made or
incorporated by reference therein not misleading, or (ii) the employment by the
Company of any device, scheme or artifice to defraud, or the engaging by the
Company in any act, practice or course of business which operates or would
operate as a fraud or deceit, or any conspiracy with respect thereto, in which
the Company shall participate, in connection with the issuance and sale of any
of the Securities, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating, preparing to defend, defending or appearing as a third-party
witness in connection with any such action or claim; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission relating to an
Underwriter made in any Preliminary Prospectus, the Registration Statement, the
Prospectus or such amendment or supplement or any Application in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through you expressly for use therein; provided, further, that the
indemnity agreement contained in this Section 8(a) with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or any
persons controlling such Underwriter) on account of any losses, claims, damages,
liabilities or litigation arising from the sale of Securities to any person, if
such Underwriter fails to send or give a copy of the Prospectus, as the same may
be then supplemented or amended, to such person, within the time required by the
Act and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus, unless such failure is the result of noncompliance
by the Company with Section 5(a)(iii) hereof.
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<PAGE>
(b) The Selling Shareholder will indemnify and hold harmless
each Underwriter and the Company against any losses, claims, damages or
liabilities to which such Underwriter or the Company may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained or
incorporated by reference in the Preliminary Prospectus, the Registration
Statement, or the Prospectus, or any amendment or supplement thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements made or incorporated by
reference therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Preliminary Prospectus, the Registration
Statement, the Prospectus or such amendment or supplement in reliance upon and
in conformity with information furnished to such Underwriter or the Company by
the Selling Shareholder expressly for use therein, or (ii) any untrue statement
or alleged untrue statement made by the Selling Shareholder in Section 1B of
this Agreement, and will reimburse such Underwriter or the Company for any legal
or other expenses incurred by such Underwriter or the Company in connection with
investigating, preparing to defend, defending or appearing as a third-party
witness in connection with any such action or claim; provided, however, the
indemnity agreement contained in this Section 8(b) with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or any
persons controlling such Underwriter) on account of any losses, claims, damages,
liabilities or litigation arising form the sale of Securities to any person, if
such Underwriter fails to send or give a copy of the Prospectus, as the same may
be then supplemented or amended, to such person within the time required by the
Act and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus, unless such failure is the result of noncompliance
by the Company with Section 5(a)(iii) hereof. The obligations of the Selling
Shareholder to indemnify the Underwriters and the Company under this Section
8(b) shall be limited to the net proceeds received by the Selling Shareholder
hereunder for the sale of Securities to the Underwriters.
(c) In addition to any obligations of the Company and the
Selling Shareholder under Section 8(a) and 8(b), the Company and the Selling
Shareholder agree that they shall perform their indemnification obligations
under Section 8(a) and Section 8(b) (as modified by the last paragraph of this
Section 8(c)) with respect to counsel fees and expenses and other expenses
reasonably incurred by making payments within 45 days to the Underwriter in the
amount of the statements of the Underwriter's counsel or other statements which
shall be forwarded by the Underwriter, and that it shall make such payments
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the obligation to reimburse the Underwriters for such expenses
and the possibility that such payments might later be held to have been improper
by a court until such time as a court orders return of such payments.
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<PAGE>
The indemnity agreements in Section 8(a) and Section 8(b) shall be in
addition to any liability which the Company or the Selling Shareholder may
otherwise have and shall extend upon the same terms and conditions to each
person, if any, who controls any Underwriter within the meaning of the Act or
the Exchange Act.
(d) Each Underwriter will indemnify and hold harmless the
Company and the Selling Shareholder against any losses, claims, damages or
liabilities to which the Company or such Selling Shareholder may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or any Application, 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 such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration Statement, the Prospectus or
such amendment or supplement or any Application in reliance upon and in
conformity with written information furnished to the Company or the Selling
Shareholder by such Underwriter relating to such Underwriter through you
expressly for use therein, and will reimburse the Company and the Selling
Shareholder for any legal or other expenses reasonably incurred by the Company
and the Selling Shareholder in connection with investigating, preparing to
defend or defending any such action or claim.
The indemnity agreement in this Section 8(d) shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company or of the Selling Shareholder and to each person, if any, who controls
the Company or the Selling Shareholder within the meaning of the Act or the
Exchange Act.
(e) Promptly after receipt by an indemnified party under
Section 8(a), 8(b) or 8(d) of notice of the commencement of any action
(including any governmental investigation), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, promptly notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
under Section 8(a), 8(b) or 8(d) except to the extent it was unaware of such
action and has been prejudiced in any material respect by such failure or from
any liability which it may have to any indemnified party otherwise than under
such Section 8(a), 8(b) or 8(d). In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such
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<PAGE>
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. If, however, (i) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party or (ii) an indemnified party
shall have reasonably concluded that representation of such indemnified party
and the indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them and the indemnified party so notifies the
indemnifying party, then the indemnified party shall be entitled to employ
counsel different from counsel for the indemnifying party at the expense of the
indemnifying party and the indemnifying party shall not have the right to assume
the defense of such indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
local counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same set of allegations or circumstances. The counsel with respect to which
fees and expenses shall be so reimbursed shall be designated in writing by
Wertheim Schroder & Co. Incorporated in the case of parties indemnified pursuant
to Section 8(a) and Section 8(b) and by the Company in the case of parties
indemnified pursuant to Section 8(d).
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 on claims that are the subject matter of such proceeding. An
indemnifying party shall not be liable for any settlement of any claim effected
without its prior written consent (which consent shall not be unreasonably
withheld).
(f) In order to provide for just and equitable contribution
under the Act in any case in which (i) any Underwriter (or any person who
controls any Underwriter within the meaning of the Act or the Exchange Act)
makes claim for indemnification pursuant to Section 8(a) or Section 8(b) hereof,
but is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that Section 8(a) or Section 8(b)
provides for indemnification in such case or (ii) contribution under the Act may
be required on the part of any Underwriter or any such controlling person in
circumstances for which indemnification is provided under Section 8(d), then,
and in each such case, each indemnifying party shall contribute to the aggregate
losses, claims, damages or liabilities to which it may be subject as an
indemnifying party hereunder (after contribution from others) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Selling Shareholder on the one hand and the Underwriters on the other from
the offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required
-34-
<PAGE>
under Section 8(e) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Shareholder on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholder on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by the Company and the Selling
Shareholder bear to the total underwriting discounts and commissions received by
the Underwriters with respect to the Securities purchased under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Selling Shareholder on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Selling Shareholder and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(f) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8(f). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section
8(f) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(f), (x) no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission and (y)
the Selling Shareholder shall not be required to contribute an amount in excess
of the net proceeds received by the Selling Shareholder hereunder for the sale
of Securities to the Underwriters. No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 8(f) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(g) Promptly after receipt by any party to this Agreement of
notice of the commencement of any action, suit or proceeding, such party will,
if a claim for contribution in respect thereof is to be made against another
party (the "contributing party"), notify the contributing party of the
commencement thereof; but the omission so to notify the contributing party will
not relieve it from any liability which it may have to any other party for
contribution under the Act except to the extent it was
-35-
<PAGE>
unaware of such action and has been prejudiced in any material respect by such
failure or from any liability which it may have to any other party other than
for contribution under the Act. In case any such action, suit or proceeding is
brought against any party, and such party notifies a contributing party of the
commencement thereof, the contributing party will be entitled to participate
therein with the notifying party and any other contributing party similarly
notified.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Firm Securities on the terms contained herein. If the aggregate number of Firm
Securities as to which Underwriters default is more than one-eleventh of the
aggregate number of all the Firm Securities and within 36 hours after such
default by any Underwriter you do not arrange for the purchase of such Firm
Securities, then the Company and the Selling Shareholder shall be entitled to a
further period of 36 hours within which to procure another party or other
parties satisfactory to you to purchase such Firm Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company
and the Selling Shareholder that you have so arranged for the purchase of such
Firm Securities, or the Company and the Selling Shareholder notifies you that
they have so arranged for the purchase of such Firm Securities, you or the
Company shall have the right to postpone the Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Firm Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Securities of such defaulting Underwriter or Underwriters
by you or the Company and the Selling Shareholder or both as provided in
subsection (a) above, the aggregate number of such Firm Securities which remain
unpurchased does not exceed one- eleventh of the aggregate number of all the
Firm Securities, then the Company and the Selling Shareholder shall have the
right to require each non-defaulting Underwriter to purchase the number of the
Firm Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Firm Securities which such Underwriter agreed to
purchase hereunder) of the Firm Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Securities of a defaulting Underwriter or Underwriters by
you or the Company and the Selling Shareholder as provided in subsection (a)
above, the aggregate number of such Firm Securities which remain unpurchased
exceeds one-eleventh of the
-36-
<PAGE>
aggregate number of all the Firm Securities, or if the Company and the Selling
Shareholder shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate
without liability on the part of any non-defaulting Underwriter, the Company or
any Selling Shareholder, except for the expenses to be borne by the Company and
the Selling Shareholder and the Underwriters as provided in Section 6 hereof and
the indemnity agreement in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Shareholder and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or an officer or director or controlling person of
the Company, or the Selling Shareholder, or any controlling person of the
Selling Shareholder, and shall survive delivery of and payment for the
Securities.
11. This Agreement shall become effective (a) if the Registration
Statement has not heretofore become effective, at the earlier of 12:00 Noon, New
York City time, on the first full business day after the Registration Statement
becomes effective, or at such time after the Registration Statement becomes
effective as you may authorize the sale of the Securities to the public by
Underwriters or other securities dealers, or (b) if the Registration Statement
has heretofore become effective, at the earlier of 24 hours after the filing of
the Prospectus with the Commission or at such time as you may authorize the sale
of the Securities to the public by Underwriters or securities dealers, unless,
prior to any such time you shall have received notice from the Company that it
elects that this Agreement shall not become effective, or you, or through you
such of the Underwriters as have agreed to purchase in the aggregate fifty
percent or more of the Firm Securities hereunder, shall have given notice to the
Company that you or such Underwriters elect that this Agreement shall not become
effective; provided, however, that the provisions of this Section 11 and
Sections 6 and Section 8 hereof shall at all times be effective.
If this Agreement shall be terminated pursuant to Section 9 hereof, or
if this Agreement, by election of you or the Underwriters, shall not become
effective pursuant to the provisions of this Section, the Company and the
Selling Shareholder shall not then be under any liability to any Underwriter
except as provided in Sections 6 and Section 8 hereof, but if this Agreement
becomes effective and is not so terminated but the Securities are not delivered
by or on behalf of the Company or the Selling Shareholder as provided herein
because the Company or the Selling Shareholder has been unable for any reason
beyond its control and not due to any default by it to comply with the terms and
conditions hereof, the Company will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you,
-37-
<PAGE>
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities, but the Company and the Selling Shareholder shall then be under no
further liability to any Underwriter except as provided in Sections 6 and
Section 8 hereof.
12. The statements set forth in the last paragraph on the front cover
page of the Prospectus and the second paragraph under the caption "Underwriting"
in the Prospectus constitute the only information furnished by any Underwriter
through the Representatives to the Company for purposes of Sections 1(b), 1(c)
and 8 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Wertheim Schroder & Co. Incorporated on behalf of you
as the Representatives, and in all dealings with the Selling Shareholder
hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement furnished in writing by or on behalf of
such Selling Shareholder or made or given by the Attorney-in-Fact for such
Selling Shareholder.
All statements, requests, notices and agreements hereunder, unless
otherwise specified in this Agreement, shall be in writing and, if to the
Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission (subsequently confirmed by delivery or by letter sent by mail) to
you as the Representatives in care of Wertheim Schroder & Co. Incorporated,
Equitable Center, 787 Seventh Avenue, New York, New York 10019, Attention:
Syndicate Department; and if to the Company or the Selling Shareholder, shall be
delivered or sent by letter sent by mail, telex or facsimile transmission
(subsequently confirmed by delivery or by letter sent by mail) to the address of
the Company set forth in the Registration Statement, Attention: Chief Executive
Officer; provided, however, that any notice to any Underwriter pursuant to
Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission (subsequently confirmed by delivery or by letter sent by mail) to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Shareholder and, to
the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and each person who controls the Company, the Selling
Shareholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
-38-
<PAGE>
15. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. This Agreement shall be construed in accordance with the laws of
the State of New York, without giving effect to the conflicts of laws principles
thereof.
-39-
<PAGE>
This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Shareholder. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement Among Underwriters, manually or facsimile
executed counterparts of which, to the extent practicable and upon request,
shall be submitted to the Company for examination, but without warranty on your
part as to the authority of the signers thereof.
Very truly yours,
HARDINGE INC.
By:__________________________________
Name:
Title:
SELLING SHAREHOLDER
By:_________________________________
As Attorney-in-Fact for the Selling
Shareholder listed in Schedule II
Accepted as of the date hereof:
WERTHEIM SCHRODER & CO. INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
as Representatives of the several Underwriters
By: WERTHEIM SCHRODER & CO. INCORPORATED
By:__________________________________
Managing Director
-40-
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Underwriter Number of Firm Securities
<S> <C>
Wertheim Schroder & Co. Incorporated...........................
Prudential Securities Incorporated.............................
Total.......................................................... ___________
2,250,000
</TABLE>
-41-
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Number of Firm
Selling Shareholder Securities to be Sold
<S> <C>
Marine Midland Bank, N.A., 32,000
Joseph C. Littleton, Robert G.
Pronchnow and William J. Gunnell, III,
as Trustees
Total.......................................................... ___________
32,000
</TABLE>
-42-
<PAGE>
SCHEDULE III
Other Shareholders
-43-
Exhibit 5
<PAGE>
DRAFT of May 22, 1995
May ___, 1995
Hardinge Inc.
One Hardinge Drive
Elmira, New York 14902
Ladies and Gentlemen:
We have acted as counsel for Hardinge Inc., a New York corporation (the
"Company"), in connection with the filing by the Company with the Securities and
Exchange Commission (the "Commission") of a Registration Statement on Form S-2
(No. 33-91644) (the "Registration Statement") and the prospectus contained in
the Registration Statement (the "Prospectus"), covering the registration under
the Securities Act of 1933, as amended (the "Act"), of 2,250,000 shares of the
Company's common stock, par value $.01 per share, to be issued and sold by the
Company (plus up to an additional 342,300 shares to cover over-allotments) and
32,000 shares to be sold by the Selling Shareholder referred to in the
Registration Statement (collectively, the "Shares").
In connection with the foregoing, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents and
corporate and public records as we have deemed necessary as a basis for the
opinion hereinafter expressed. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents presented to us
as originals, the conformity to the originals of all documents presented to us
as copies, and the authenticity of the originals of such documents. In rendering
our opinion, we have relied as to factual matters upon certificates of public
officials and certificates and representations of officers of the Company.
Based upon the foregoing and having regard for such legal considerations as
we deem relevant, we are of the opinion that the Shares have been duly
authorized by the Company and that the Shares to be sold by the Selling
Shareholder are, and the Shares to be issued and sold by the Company will be,
when issued and paid for in the manner and at the price set forth in the
Prospectus, validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement and to the use of our name under the caption "Legal
Matters" contained in the Prospectus. In giving this consent, we do not thereby
concede that we come within the category of persons whose consent is required by
the Act or the General Rules and Regulations promulgated thereunder.
Very truly yours,
Exhibit 10.17
<PAGE>
CHEMUNG CANAL TRUST COMPANY
Master Note
$5,000,000.00 Elmira, New York
September 19, 1994
For value received, the undersigned, HARDINGE BROTHERS, INC., ("Borrower")
promises to pay to the order of Chemung Canal Trust Company ("Lender"), on
demand or when due as provided herein, at its office at One Chemung Canal
Plaza, Elmira, New York, or at any other office designated by Lender, the
principal sum of Five Million and 00/100 ($5,000,000.00) Dollars or so much
thereof as shall equal the unpaid principal amount of all advances made by
Lender to Borrower, plus interest on the principal amount outstanding from
time to time.
This note shall be evidence of Indebtedness and shall constitute the terms of
payment by the Borrower to the Lender of principal which may be borrowed,
repaid, and reborrowed from time to time, it being understood that the Lender
may, in its sole discretion, decline in whole or in part to make any advance
requested by Borrower. The excess of borrowing over repayments shall be the
principal balance due hereunder from time to time and at any time.
The Lender may, in its sole discretion, make an advance to the Borrower upon
oral request. Each oral request shall be conclusively presumed to have been
made by a person authorized by Borrower to do so, and any credit by the
Lender of any advance to or for the account of the Borrower shall establish
the Borrower's obligation to repay the same in accordance with the terms of
this note. The Lender shall incur no liability to any party by reason of
making an advance upon an oral request. The Lender will endeavor (but shall
be under no obligation) to send to the Borrower written confirmation of the
date and amount of such advance, but its failure to do so will not relieve
the Borrower of its obligations hereunder, including its obligation to repay
the advance when due.
Each advance made to Borrower shall be deposited in Borrower's account at
Chemung Canal Trust Company, identified below. Any advance made hereunder
shall be in an amount of not less than $2,500.00
Interest shall accrue at a rate equal to the sum of (i) the Prime Rate in
effect from time to time plus (ii) 0% per annum. Prime Rate, as used herein,
shall mean the annual rate of interest announced by Chase Manhattan Bank at
its principal office in New York, New York, as the Chase Manhattan Prime
Rate. The rate of interest payable hereunder shall change on each date on
which a change in the Prime Rate becomes effective. Interest will be
calculated for the actual number of days on a 365-day year basis.
Interest will be payable monthly and it shall be due on the same day of each
month until the principal amount is paid in full; provided, however, that if
demand is made for payment of the entire principal balance, all interest due
shall be payable at the same time, and if all or any part of the principal
balance is paid at any time, all interest accrued and unpaid to the date of the
payment will be due with such payment.
Lender may, at its sole option, declare the entire balance of principal and
accrued interest due and payable at any time, and in that event, the Borrower
will immediately pay the entire balance in full.
All or any part of the indebtedness evidenced by this note may be paid
without penalty at any time.
Any payment not received within ten (10) business days after it becomes due
may, at the option of the Lender, be subject to a late charge equal to 2.0%
thereof or $25, whichever is greater.
All payments shall be in lawful money of the United States in immediately
available funds.
If the Lender demands and accepts partial payments, such demand or acceptance
shall not be construed as a waiver of the right to demand the entire unpaid
balance due hereunder at any time in accordance with the terms hereof. Any
delay by the Lender in exercising any rights hereunder shall not operate as a
waiver of such rights.
To secure payment of the indebtedness evidenced by this note from time to
time, the Borrower has transferred, pledged, and delivered to the Lender and
has granted to the Lender a security interest or mortgage in the following
property: not applicable, together with all proceeds thereof and all
dividends and other distributions of any kind with respect thereto and all
substitutions and exchanges therefor and additions thereto.
The provisions of any separate Security Agreement or mortgage executed by the
Borrower shall become a part of the terms of this Master Note.
If this item is checked , notwithstanding any other provision of this
note, the Borrower agrees that for a period of consecutive days during
each of Borrower's fiscal years, there shall be no principal balance and
accrued interest outstanding under this Master Note.
Borrower, and endorsers and guarantors hereof, waive any demand, presentment
for payment, protest and notice of protest for non-payment of this note. This
note shall be governed by the laws of the State of New York.
Borrower agrees to pay all reasonable costs and expenses, including
attorneys' fees and disbursements incurred by Lender in enforcing this note.
HARDINGE BROTHERS, INC.
By: /s/ Robert E. Agan
------------------------------
Robert E. Agan Its President
135-00-145-3
------------------------------
Borrower's Account Number
By: Hardinge Brothers, Inc.
------------------------------
Its
One Hardinge Drive
------------------------------
Street and Number
Elmira, NY 14902-1507
City State Zip
