<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 3, 1996
REGISTRATION NO. 333-04077
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 2
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
PAR TECHNOLOGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 16-1434688
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NO.)
PAR TECHNOLOGY PARK
8383 SENECA TURNPIKE
NEW HARTFORD, NEW YORK 13413-4991
(315) 738-0600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
JOHN W. SAMMON, JR.
CHAIRMAN OF THE BOARD AND PRESIDENT
PAR TECHNOLOGY CORPORATION
PAR TECHNOLOGY PARK
NEW HARTFORD, NEW YORK 13413-4991
(315) 738-0600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
TIMOTHY C. MAGUIRE, ESQ. STEVEN R. FINLEY, ESQ.
TESTA, HURWITZ & THIBEAULT, LLP GIBSON, DUNN & CRUTCHER LLP
HIGH STREET TOWER 200 PARK AVENUE
125 HIGH STREET NEW YORK, NY 10166
BOSTON, MASSACHUSETTS 02110 (212) 351-3920
(617) 248-7000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after 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: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please 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 THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses (other than underwriting discounts and commissions), all
of which will be borne by the Registrant, payable in connection with the sale
of the Common Stock offered hereby are as follows:
<TABLE>
<S> <C>
Registration Fee................................................... $ 17,504
NASD Filing Fee.................................................... 5,576
Printing and Engraving Expenses.................................... 80,000
Legal Fees and Expenses............................................ 175,000
Accounting Fees and Expenses....................................... 25,000
Blue Sky Fees and Expenses (including legal fees).................. 15,000
Miscellaneous...................................................... 56,920
--------
Total............................................................ $375,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware empowers a
corporation to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that the or she is or was a director, officer, employee or
agent of the corporation or another enterprise if serving at the request of
the corporation. Depending on the character of the proceeding, a corporation
may indemnify against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding if the person indemnified acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct
was unlawful. In the case of an action by or in the right of the corporation,
no indemnification may be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine that despite the adjudication
of liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses that the court
shall deem proper. Section 145 further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to above, or in defense of any claim, issue or
matter therein, he or she shall be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him or her in connection
therewith.
The Registrant's Certificate of Incorporation provides that the Registrant
shall, to the fullest extent permitted by law, indemnify all directors,
officers, employees and agents of the company. The Certificate of
Incorporation also contains a provision eliminating the liability of directors
of the Registrant to the Registrant or its stockholders for monetary damage,
except under certain circumstances. The Certificate of Incorporation also
permits the Registrant to maintain insurance to protect itself and any
director, officer, employee or agent against any liability with respect to
which the Corporation would have the power to indemnify such persons under the
Delaware General Corporation Law. The Registrant maintains an insurance policy
insuring its directors and officers against certain liabilities.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
3.1* Certificate of Incorporation, as amended.
3.2 Form of Certificate of Amendment to the Certificate of Incorporation.
3.3* By-laws, as amended.
4* Specimen Certificate representing the Common Stock.
5 Opinion of Testa, Hurwitz & Thibeault, LLP.
10.1+* Agreement between Taco Bell Corporation and PAR Microsystems
Corporation, dated
December 18, 1995.
10.2+* Service Integration Agreement between Taco Bell and PAR Microsystems
Corporation, dated September 12, 1995.
11* Statement re: Computation of Earnings per Share.
23.1* Consent of Price Waterhouse LLP.
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5).
24* Power of Attorney (see page II-3).
</TABLE>
- --------
* Previously filed.
+ Confidential treatment requested as to certain portions.
ITEM 17. UNDERTAKINGS.
The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where appropriate, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement or amendment thereto to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
Hartford, New York on June 3, 1996.
PAR TECHNOLOGY CORPORATION:
/s/ Gregory T. Cortese
By:__________________________________
GREGORY T. CORTESE
VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
POWER OF ATTORNEY AND SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE(S) DATE
/s/ John W. Sammon* Chairman of the
- ------------------------------------- Board of Directors June 3, 1996
DR. JOHN W. SAMMON, JR. and President
/s/ Charles A. Constantino* Executive Vice
- ------------------------------------- President and June 3, 1996
CHARLES A. CONSTANTINO Director
/s/ J. Whitney Haney* President, PAR
- ------------------------------------- Microsystems and June 3, 1996
J. WHITNEY HANEY Director
/s/ Sangwoo Ahn* Director
- ------------------------------------- June 3, 1996
SANGWOO AHN
/s/ James C. Castle* Director
- ------------------------------------- June 3, 1996
DR. JAMES C. CASTLE
/s/ Gregory T. Cortese
*By: ________________________________
GREGORY T. CORTESE
ATTORNEY-IN-FACT
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS PAGE
-------- ----
<C> <S> <C>
1.1 Form of Underwriting Agreement.
3.1* Certificate of Incorporation, as amended.
3.2 Form of Certificate of Amendment to the Certificate of
Incorporation.
3.3* By-laws, as amended.
4* Specimen Certificate representing the Common Stock.
5 Opinion of Testa, Hurwitz and Thibeault, LLP.
10.1+* Agreement between Taco Bell Corporation and PAR Microsystems
Corporation, dated December 18, 1995.
10.2+* Service Integration Agreement between Taco Bell and PAR
Microsystems Corporation, dated September 12, 1995.
11* Statement re: Computation of Earnings per Share.
23.1* Consent of Price Waterhouse LLP.
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5).
24* Power of Attorney (See page II-3).
</TABLE>
- --------
* Previously filed.
+ Confidential treatment requested as to certain parties.
<PAGE>
Proof of May 23, 1996
PAR TECHNOLOGY CORPORATION
COMMON STOCK
($0.02 Par Value)
UNDERWRITING AGREEMENT
____________, 1996
<PAGE>
UNDERWRITING AGREEMENT
____________, 1996
Dillon, Read & Co. Inc.
535 Madison Avenue
New York, New York 10022
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Tenth Floor, South Tower
Atlanta, Georgia 30326
Volpe, Welty & Company
One Maritime Plaza, 11th Floor
San Francisco, CA 94111
as Managing Underwriters
Dear Sirs:
PAR Technology Corporation, a Delaware corporation (the "Company"),
proposes to sell, and the persons named in Schedule B (the "Selling
Stockholders") propose to sell, to the underwriters named in Schedule A (the
"Underwriters") an aggregate of 2,825,000 shares (the "Firm Shares") of Common
Stock, par value $0.02 per share (the "Common Stock"), of the Company, of which
1,450,000 shares are to be sold by the Company and an aggregate of 1,375,000
shares are to be sold by the Selling Stockholders in the respective amounts set
forth opposite their names in Schedule B. In addition, solely for the purpose
of covering overallotments, the Selling Stockholders indicated on Schedule B
propose to sell, at the Underwriters' option, up to 423,750 additional shares of
the Common Stock (the "Additional Shares"). The Additional Shares and the Firm
Shares are collectively referred to as the "Shares." The Shares are described
in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-2, including a prospectus,
relating to the Shares, which incorporates by reference documents that the
Company has filed in accordance with the provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the "Exchange Act"). The Company has furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary prospectuses and
all documents incorporated by reference therein (collectively, the "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement as in effect at the time of execution of
this Agreement or, if the registration statement is not yet effective, as
amended when it becomes effective, including all documents filed as a part
thereof or incorporated by
2
<PAGE>
reference therein, and including any registration statement filed pursuant to
Rule 462(b) under the Act increasing the size of the offering registered under
the Act and any information contained in a prospectus subsequently filed with
the Commission pursuant to Rule 424(b) under the Act and deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Act, is herein called the "Registration Statement", and the
prospectus, including all documents incorporated therein by reference, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act or, if no such filing is required, in the form of final prospectus included
in the Registration Statement at the time it became effective, is herein called
the "Prospectus".
The Company, the Selling Stockholders and the Underwriters agree as
follows:
1. Sale and Purchase. On the basis of the representations and
-----------------
warranties and the other terms and conditions herein set forth, the Company and
each Selling Stockholder, severally and not jointly, agree to sell to the
respective Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company and each Selling Stockholder the respective
number of Firm Shares (subject to such adjustment as you may determine to avoid
fractional shares) which bears the same proportion to the number of Firm Shares
to be sold by the Company or by that Selling Stockholder, as the case may be, as
the number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A bears to the total number of Firm Shares to be sold by the Company
and the Selling Stockholders, in each case at a purchase price of $____ per
Share. You may release the Firm Shares for public sale promptly after this
Agreement becomes effective. You may from time to time increase or decrease the
public offering price after the initial public offering to such extent as you
may determine.
In addition, on the basis of the representations and warranties and
the other terms and conditions herein set forth, the Selling Stockholders
indicated on Schedule B hereto hereby grant to the several Underwriters an
option to purchase, and the Underwriters shall have the right to purchase,
severally and not jointly, from such Selling Stockholders, all or a portion of
the Additional Shares as may be necessary to cover overallotments made in
connection with the offering of the Firm Shares, at the same purchase price per
share to be paid by the several Underwriters to the Company and the Selling
Stockholders for the Firm Shares. This option may be exercised in whole or in
part at any time or from time to time on or before the thirtieth day following
the date hereof, by written notice to the Company and the Attorney-in-Fact for
the Selling Stockholders referred to in Section 4(d) (the "Attorney-in-Fact").
Any such notice shall set forth the aggregate number of Additional Shares as to
which the option is being exercised, and the date and time when the Additional
Shares are to be delivered (any such date and time being herein referred to as
an "additional time of purchase"); provided, however, that no additional time of
purchase shall occur earlier than the time of purchase (as defined below) nor
earlier than the second business day* after the date on which the option shall
have been exercised nor later than the eighth business day after the date on
which the option shall have been exercised. The number of Additional Shares to
be sold to each Underwriter at an additional time of purchase shall be the
number which bears the same proportion to the aggregate number of Additional
Shares being purchased at such additional time of purchase as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule A bears to
the total number of Firm Shares (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares).
- -------------------------
* As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
3
<PAGE>
2. Payment and Delivery. Payment of the purchase price for the Firm
--------------------
Shares shall be made to the Company and to the Attorney-in-Fact on behalf of the
Selling Stockholders by certified or official bank checks, in New York Clearing
House funds, at the office of Dillon, Read & Co. Inc. in New York City, against
delivery of the certificates for the Firm Shares to you for the respective
accounts of the Underwriters. Such payment and delivery shall be made at 9:30
A.M., New York City time, on ____________, 1996 (unless another time shall be
agreed to by you, the Company and the Selling Stockholders or unless postponed
in accordance with the provisions of Section 10). The time at which such
payment and delivery are actually made is called the "time of purchase."
Certificates for the Firm Shares shall be delivered to you in definitive form in
such names and in such denominations as you shall specify on the second business
day preceding the time of purchase. For the purpose of expediting the checking
of the certificates for the Firm Shares by you, the Company and the Selling
Stockholders agree to make such certificates available to you for such purpose
at least one full business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall
be delivered to you in definitive form in such names and in such denominations
as you shall specify on the second business day preceding the additional time of
purchase. For the purpose of expediting the checking of the certificates for
the Additional Shares by you, the Company and the Selling Stockholders agree to
make such certificates available to you for such purpose at least one full
business day preceding the additional time of purchase.
3. Representations and Warranties of the Company, Dr. John W. Sammon,
------------------------------------------------------------------
Jr. and Charles A. Constantino. The Company and each of Dr. John W. Sammon, Jr.
- ------------------------------
and Charles A. Constantino, jointly and severally, represent and warrant to each
of the Underwriters that:
(a) Each Preliminary Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act; when the Registration
Statement becomes or became effective and at all times subsequent thereto
up to the time of purchase and the additional time of purchase, the
Registration Statement and the Prospectus, and any supplements or
amendments thereto, complied and will comply in all material respects with
the provisions of the Act; and the Registration Statement at all such times
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, and the Prospectus at all such times
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, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company, Dr. Sammon and
Mr. Constantino make no representation or warranty with respect to any
statement contained in the
4
<PAGE>
Registration Statement or the Prospectus in reliance upon and in conformity
with information concerning the Underwriters and furnished in writing by or
on behalf of any Underwriter through you to the Company expressly for use
in the Registration Statement or the Prospectus and set forth in the
section of the Registration Statement and the Prospectus entitled
"Underwriting"; the documents incorporated by reference in the Prospectus,
at the time they were filed with the Commission, complied in all material
respects with the requirements of the Exchange Act, and do 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 light of the circumstances under which they were made, not misleading.
(b) As of March 31, 1996, the Company had an authorized
capitalization as set forth under the column entitled "March 31, 1996
Actual" in the section of the Registration Statement and the Prospectus
entitled "Capitalization" and, as of the time of purchase, the
capitalization of the Company will be as set forth under the column
entitled "March 31, 1996 As Adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization" except as disclosed
in the section of the Registration Statement and Prospectus entitled
"Description of Capital Stock"; and all of the issued and outstanding
shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and are free of statutory
and contractual preemptive rights.
(c) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full power and authority to (i) own its properties and
conduct its business as described in the Registration Statement and the
Prospectus and (ii) execute and deliver this Agreement and to sell and
deliver the Shares as herein contemplated.
(d) All of the issued and outstanding shares of capital stock
of each of the subsidiaries of the Company, except for ISSI Corp. with
respect to which the Company makes this representation as to the 51% of the
issued and outstanding shares of capital stock owned by it (collectively,
the "Subsidiaries"), and all of the shares of Phoenix Systems and
Technologies, Inc. ("Phoenix") representing the Company's 44% interest
therein; are owned directly by the Company, all of such shares have been
duly authorized and validly issued and are fully paid and nonassessable
and, except as described in the Prospectus, are owned free and clear of any
pledge, lien, encumbrance, security interest or other claim; and there are
no outstanding rights, subscriptions, warrants, calls, preemptive rights,
options or other agreements of any kind with respect to the capital stock
of any of the Subsidiaries.
(e) Each of the Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation, with full corporate power and
authority to own its respective properties and to conduct its respective
businesses.
(f) Each of the Company and each of the Subsidiaries is duly
qualified or licensed by and is in good standing in each jurisdiction in
which it owns or leases property or conducts its business and in each other
jurisdiction in which the failure, individually or in the aggregate, to be
so qualified or licensed
5
<PAGE>
could have a material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the
Company and the Subsidiaries taken as a whole; each of the Company and each
of the Subsidiaries is in compliance in all material respects with the
laws, orders, rules, regulations and directives issued or administered by
each such jurisdiction.
(g) Neither the Company nor any of the Subsidiaries is in
breach of, or in default under (nor has any event occurred which with
notice, lapse of time or both would constitute a breach of, or default
under), its charter or bylaws, or in the performance or observance of any
obligation, agreement, covenant or condition contained in any license,
indenture, lease, mortgage, deed of trust, bank loan or credit agreement,
material supply agreement or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of them may
be bound or affected and which breach or default could have a material
adverse effect on the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole. The execution, delivery and performance of
this Agreement, the issuance of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, or result in any
breach of, or constitute a default under (nor constitute any event which
with notice, lapse of time or both would constitute a breach of, or default
under), the charter or bylaws of the Company or any of the Subsidiaries or
under any provision of any material license, indenture, material lease,
mortgage, deed of trust, bank loan or credit agreement, material supply
agreement or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or their properties may
be bound or affected, or under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the
Company or any of the Subsidiaries.
(h) The Firm Shares and the Additional Shares, when delivered
to and paid for by the Underwriters as contemplated hereby, will be duly
authorized and validly issued and fully paid and nonassessable, free and
clear of any pledge, lien, encumbrance, security interest, preemptive right
or other claim.
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(j) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained in
the Registration Statement and the Prospectus; and the certificates for the
Shares are in due and proper form.
(k) No approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection with
the issuance and sale of the Shares as contemplated hereby, other than
registration of the Shares under the Act, clearance of the offering of the
Shares with the National Association of Securities Dealers, Inc. (the
"NASD") and any necessary qualification under the securities or blue sky
laws of the various jurisdictions in which the Shares are being offered by
the Underwriters.
6
<PAGE>
(l) No person has the right, contractual or otherwise, to
cause the Company to issue to it, or to register pursuant to the Act, any
securities of the Company in consequence of the issue and sale of the
Shares to the Underwriters hereunder, nor does any person have preemptive
rights, rights of first refusal or other rights to purchase any of the
Shares.
(m) Price Waterhouse LLP, whose reports on the consolidated
financial statements of the Company and the Subsidiaries are included or
incorporated by reference in the Registration Statement and the Prospectus,
are independent public accountants with respect to the Company as required
by the Act and the applicable published rules and regulations thereunder.
(n) All legal or governmental proceedings, contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required.
(o) There is no action, suit or proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of the
Subsidiaries or any of their properties, at law or in equity, or before or
by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency that could reasonably be
expected to result in a judgment, decree or order having a material adverse
effect on the properties, assets, operations, business, business prospects
or condition (financial or other) of the Company and the Subsidiaries taken
as a whole.
(p) The audited and unaudited financial statements included in
the Registration Statement and the Prospectus present fairly the
consolidated financial condition of the Company and the Subsidiaries as of
the dates indicated and the consolidated results of operations and cash
flows of the Company and the Subsidiaries for the periods specified; and
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the
periods involved.
(q) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, and except as
may be otherwise stated in the Registration Statement or the Prospectus,
there has not been: (i) any material adverse change in the properties,
assets, operations, business, business prospects or condition (financial or
other), present or prospective, of the Company and the Subsidiaries taken
as a whole; (ii) any transaction, that is material to the Company and the
Subsidiaries taken as a whole, contemplated or entered into by the Company
or any of the Subsidiaries; or (iii) any obligation, contingent or
otherwise, directly or indirectly incurred by the Company or any of the
Subsidiaries that is material to the Company and the Subsidiaries taken as
a whole.
(r) The Company has obtained the agreement of all of the
stockholders listed on Schedule C, constituting all of the executive
officers and directors of the Company that are not Selling Stockholders,
not to offer, sell, contract to sell, grant any option to sell, transfer or
otherwise dispose of, directly or indirectly, any shares of Common Stock,
or securities convertible into or exchangeable for Common Stock or warrants
or other rights to purchase Common
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Stock for a period of 90 days from the date of the Prospectus without the
prior written consent of Dillon, Read & Co. Inc.
(s) Neither the Company nor any of the Subsidiaries has
violated 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 ("Environmental
Laws"), nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable federal or state
wages and hours laws, nor any provisions of the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder, which
could reasonably be expected to result in any material adverse effect on
the properties, assets, operations, business, business prospects or
condition (financial or other) of the Company or any of the Subsidiaries.
(t) The Company and the Subsidiaries have such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including without limitation under any applicable
regulations of the United States Food and Drug Administration, as are
necessary to own, lease and operate their respective properties and to
conduct their businesses; the Company and the Subsidiaries have fulfilled
and performed all of their material obligations with respect to such
permits and, to the knowledge of the Company, no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit; and, except as described in the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or the Subsidiaries.
(u) In the ordinary course of its business, the Company
conducts such review of the effect of Environmental Laws on the business,
operations and properties of each of the Company and the Subsidiaries as is
reasonable under the circumstances. On the basis of such review, the
Company reasonably has concluded that such associated costs and
liabilities, singly or in the aggregate, would not have a material adverse
effect on the properties, assets, operations, business, business prospects
or condition (financial or other) of the Company or any of the
Subsidiaries.
(v) To the knowledge of the Company, Dr. Sammon and Mr.
Constantino, neither the Company nor any of the Subsidiaries, nor any
employee of the Company or any of the Subsidiaries, has made any payment of
funds of the Company or any of the Subsidiaries prohibited by law, and no
funds of the Company or any of the Subsidiaries have been set aside to be
used for any payment prohibited by law.
(w) The Company and the Subsidiaries have filed all federal or
state income or franchise tax returns required to be filed and have paid
all taxes shown thereon as due, and there is no material tax deficiency
which has been or, to the knowledge of the Company, Dr. Sammon and Mr.
Constantino, could reasonably be expected to be asserted against the
Company or any of the Subsidiaries; and all material tax liabilities are
adequately provided for on the books of the Company and the Subsidiaries.
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(x) The Company and the Subsidiaries have good title to all
properties and assets owned or leased by them, in each case free and clear
of all liens, security interests, pledges, charges, encumbrances, mortgages
and defects (except such as are described or referred to in the Prospectus
and the financial statements and the notes thereto contained therein or
such as do not interfere with the current and proposed use to be made of
such property by the Company and the Subsidiaries).
(y) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or is subject to regulation under such Act.
4. Representations and Warranties of the Selling Stockholders. Each
------------------------------------- --------------------
Selling Stockholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) Such Selling Stockholder is and at the time of delivery of
the Shares to be sold by such Selling Stockholder will be the lawful owner
of the number of Shares or securities convertible into or warrants
exercisable for the number of Shares to be sold by such Selling Stockholder
pursuant to this Agreement and, at the time of delivery thereof, will have
valid and marketable title to such Shares, and upon delivery of and payment
for such Shares the Underwriters will acquire valid and marketable title to
such Shares free and clear of any claim, lien, encumbrance, security
interest, community property right, restriction on transfer or other defect
in title, assuming each of the Underwriters has purchased the Shares
purchased by it in good faith and without notice of any adverse claim.
(b) Such Selling Stockholder has and at the time of delivery
of such Shares will have full legal right, power and capacity, and any
approval required by law to sell, assign, transfer and deliver such Shares
in the manner provided in this Agreement.
(c) This Agreement has been duly authorized, executed and
delivered by such Selling Stockholder. The Power of Attorney executed by
the Selling Stockholders (the "Power of Attorney") and the Custody
Agreement among the Selling Stockholders and ______________ (the "Custody
Agreement") have been duly executed and delivered by such Selling
Stockholder and are legal, valid and binding agreements of such Selling
Stockholder, enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(d) Such Selling Stockholder has duly and irrevocably
authorized the Attorney-in-Fact (as defined in the Power of Attorney), on
behalf of such Selling Stockholder, to execute and deliver this Agreement
and any other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the Shares to be sold by
such Selling Stockholder and receive payment therefor pursuant hereto.
(e) The sale of the Shares by such Selling Stockholder
pursuant hereto is not prompted by any material adverse information
concerning the
9
<PAGE>
Company; and all information furnished in writing by or on behalf of such
Selling Stockholder specifically for use in the Registration Statement and
the Prospectus, and any supplement or amendment thereto, is and will be
when the Registration Statement became effective and at all times
subsequent thereto up to the time of purchase and the additional time of
purchase, true and correct and complete and at all such times did not and
will not contain any untrue statement of material fact or omit 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.
(f) The consummation of the transactions contemplated hereby
and by the Power of Attorney and by the Custody Agreement and the
fulfillment of the terms hereof and thereof will not constitute a breach or
violation of or default under any trust, indenture, agreement or other
instrument to which any such Selling Stockholder is a party or by which any
such Selling Stockholder is bound.
(g) Such Selling Stockholder has no knowledge of any breach by
the Company of any of its representations and warranties in this Agreement.
5. Certain Covenants of the Company. The Company hereby agrees:
--------------------------------
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale under
the securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect as long as required for the
distribution of the Shares, provided that the Company shall not be required
to qualify as a foreign corporation or to consent to the service of process
under the laws of any such state (except service of process with respect to
the offering and sale of the Shares); and promptly to advise you of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to use
its best efforts to obtain the withdrawal of any order of suspension at the
earliest practicable moment upon your reasonable request;
(b) to make available to you in New York City, as soon as
practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies
of the Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendment or supplement thereto after the
effective date of the Registration Statement) as the Underwriters may
reasonably request for the purposes contemplated by the Act;
(c) to advise you promptly and (if requested by you) to
confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes
effective and (ii) when the Prospectus is filed with the Commission
pursuant to Rule 424(b) under the Act, if required under the Act (which the
Company agrees to file in a timely manner under such Rule);
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
10
<PAGE>
Registration Statement or the Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best efforts to
obtain the lifting or removal of such order as soon as possible; to advise
you promptly of any proposal to amend or supplement the Registration
Statement or the Prospectus, including by filing any document that would be
incorporated therein by reference, and to file no such amendment or
supplement to which you shall object in writing prior to the filing of any
such amendment or supplement;
(e) to furnish to you and, upon request to each of the other
Underwriters, for a period of three years from the date of this Agreement
(i) copies of all reports or other communications that the Company shall
send to its stockholders or from time to time shall publish or publicly
disseminate and (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar form as may be designated by the Commission, and any other document
filed by the Company pursuant to Section 12, 13, 14 or 15(d) of the
Exchange Act;
(f) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act that, in
the reasonable judgment of the Company, would require the making of any
change in the Prospectus then being used, or in the information
incorporated therein by reference, so that the Prospectus, as then
supplemented, would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading
and, during such time, promptly to prepare and furnish, at the Company's
expense, to the Underwriters such amendments or supplements to such
Prospectus as may be necessary to reflect any such change in such
quantities as requested by the Underwriters, and to furnish to you a copy
of such proposed amendment or supplement before filing any such amendment
or supplement with the Commission;
(g) to make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which need not be
audited and which will satisfy the provisions of Section 11(a) of the Act
including, at the option of the Company, Rule 158) covering a period of 12
months beginning after the effective date of the Registration Statement but
ending not later than 15 months after the date of the Registration
Statement, as soon as is reasonably practicable after the termination of
such 12-month period;
(h) to furnish to you four signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto and documents incorporated by
reference therein) and sufficient conformed copies of the foregoing (other
than exhibits) for distribution of a copy to each of the other
Underwriters;
(i) upon your request, to furnish to you as early as
practicable prior to the time of purchase and the additional time of
purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available
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<PAGE>
unaudited interim consolidated financial statements, if any, of the Company
and the Subsidiaries that have been read by the Company's independent
certified public accountants as stated in their letter to be furnished
pursuant to Section 8(b);
(j) to apply the net proceeds from the sale of the Shares sold
by the Company in the manner set forth under the caption "Use of Proceeds"
in the Registration Statement and the Prospectus;
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement otherwise becomes effective or
is terminated, to pay all expenses, fees and taxes (other than (x) any
transfer taxes and (y) fees and disbursements of your counsel except as set
forth under Section 7 and clauses (iii) and (iv) below) in connection with
(i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus and any amendment or supplement
thereto, and the printing and furnishing of copies of each thereof to you
and to dealers (including costs of mailing and shipment), (ii) the
issuance, sale and delivery of the Shares, (iii) the word processing or
printing of this Agreement and any dealer agreements, and the reproduction
or printing and furnishing of copies of each thereof to you and to dealers
(including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state laws as aforesaid (including legal
fees and filing fees and other disbursements of your counsel) and the
printing and furnishing of copies of any blue sky surveys to you and to
dealers, (v) any listing of the Shares on any securities exchange and any
registration thereof under the Exchange Act, (vi) any filing for review of
the public offering of the Shares by the NASD and (viii) the performance of
the Company's and the Selling Stockholders' other obligations hereunder;
(l) not to offer, sell, contract to sell, grant any option to
sell, transfer or otherwise dispose of, directly or indirectly, any shares
of Common Stock or securities convertible into or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or permit the
registration under the Act of any shares of Common Stock, for a period
commencing on the date hereof and continuing for 90 days after the date of
the Prospectus, without the prior written consent of Dillon, Read & Co.
Inc., except for: (i) shares of Common Stock issued pursuant to the
exercise of outstanding options, (ii) the granting of options to its
employees, officers and directors under its existing employee stock option
plans so long as none of such options become exerciseable during said 90
day period and (iii) the registration of the Shares and the sales to you
pursuant to this Agreement; and
(m) to refrain from investing the proceeds from the sale of
the Shares in a manner to cause the Company or any of the Subsidiaries to
become an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
6. Certain Covenants of the Selling Stockholders. Each Selling
---------------------------------------------
Stockholder (including those that may only sell Additional Shares, whether or
not such Additional Shares are sold) agrees with each Underwriter that such
Selling Stockholder will not offer, sell, contract to sell, grant any option to
sell, transfer or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock,
12
<PAGE>
except for the sales to you pursuant to this Agreement, for a period commencing
on the date hereof and continuing for 180 days after the date of the Prospectus,
without the prior written consent of Dillon, Read & Co. Inc.
7. Reimbursement of Underwriters' Expenses. If the Firm Shares or
---------------------------------------
the Additional Shares are not delivered for any reason, other than the failure
of the Underwriters to purchase the Firm Shares or the Additional Shares as
provided herein (unless such failure is permitted under the provisions of
Section 8 or Section 9(b) of this Agreement), the Company will reimburse the
Underwriters for all of their out-of-pocket expenses, including the fees and
disbursements of their counsel.
8. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Stockholders on the
date hereof and at the time of purchase (and the several obligations of the
Underwriters at the additional time of purchase are subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Stockholders on the date hereof and at the time of purchase and at the
additional time of purchase, as the case may be), the performance by each of the
Company and the Selling Stockholders of its and their obligations hereunder and
to the following conditions:
(a) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion of
Testa, Hurwitz & Thibeault, counsel for the Company and the Selling
Stockholders, addressed to the Underwriters, and dated the time of purchase
or the additional time of purchase, as the case may be, with reproduced
copies for each of the other Underwriters and in form satisfactory to
Gibson, Dunn & Crutcher LLP, counsel for the Underwriters, stating 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 Delaware, with full corporate power and authority (A) to own
its properties and conduct its business as described in the
Registration Statement and the Prospectus and (B) to execute and
deliver this Agreement and to issue, sell and deliver the Shares as
herein contemplated;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) (a) the Shares, when delivered to and paid for by the
Underwriters, will be duly authorized, validly issued, fully paid and
nonassessable, and will be free of any pledge, lien, encumbrance,
claim or preemptive right; and (b) the certificates for the Shares,
assuming that they are in the form filed with the Commission, are in
due and proper form;
(iv) (a) the Company had an authorized capitalization as of
March 31, 1996 as set forth under the heading "Capitalization" in the
Registration Statement and the Prospectus and, as of the time of
purchase, the capitalization of the Company will be as set forth under
the column entitled "March 31, 1996 As Adjusted" in the section of the
Registration Statement and the Prospectus entitled "Capitalization"
except as disclosed
13
<PAGE>
in the section of the Registration Statement and Prospectus entitled
"Description of Capital Stock", and (b) the outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, and based on such counsel's knowledge of the facts set forth
in an officer's certificate, are fully paid, nonassessable, and are
free of statutory and contractual preemptive rights;
(v) the capital stock of the Company, including the
Shares, conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus;
(vi) the Registration Statement and the Prospectus (except
as to the financial statements and schedules contained or incorporated
by reference therein as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act;
(vii) the Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under the
Act;
(viii) no approval, authorization, consent or order of or
filing with any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency is required in
connection with the issuance or sale of the Shares as contemplated
hereby other than registration of the Shares under the Act (except
such counsel need express no opinion as to any necessary qualification
under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters);
(ix) the execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby do not and will not conflict with, or result in
any breach of, or constitute a default under (nor constitute any event
which with notice, lapse of time or both would constitute a breach of
or default under), the charter or bylaws of the Company or any of the
Subsidiaries, or under any provision of any license, indenture, lease,
mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company is a party or by which
the Company or its properties are bound or affected and which is filed
as an Exhibit to the Registration Statement (or incorporated by
reference therein) , or under any federal, state or local law,
regulation or rule, or any decree, judgment or order applicable to the
Company and of which such counsel has knowledge;
(x) all contracts or documents, of which such counsel has
knowledge, of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed;
(xi) except as described in the Registration Statement and
the Prospectus, there are no actions, suits or proceedings of which
such counsel has knowledge, pending or threatened against the Company
or any
14
<PAGE>
of the Subsidiaries, or any of their respective properties, at
law or in equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency that individually or in the aggregate could reasonably be
expected to result in a judgment, decree or order having a material
adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company
and the Subsidiaries taken as a whole;
(xii) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed (or, if an
amendment with respect to any such document was filed, when such
amendment was filed), complied as to form in all material respects
with the Exchange Act (except as to the financial statements and
schedules and other financial and statistical data contained or
incorporated by reference therein, as to which such counsel need
express no opinion);
(xiii) the statements in the Registration Statement and the
Prospectus under the caption "Description of Capital Stock" insofar as
they are descriptions of laws, regulations and rules, of legal and
governmental proceedings or of contracts, agreements, leases and other
legal documents, or refer to statements of law or legal conclusions,
have been reviewed by such counsel and are accurate in all material
respects;
(xiv) neither the Company nor any of the Subsidiaries is
an "investment company" or a person "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
(xv) this Agreement, the Power of Attorney and the
Custody Agreement have been duly executed and delivered by each of the
Selling Stockholders; and the Power of Attorney and the Custody
Agreement are legal, valid and binding agreements of each of the
Selling Stockholders enforceable in accordance with their respective
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of
equity;
(xvi) to the knowledge of such counsel, each of the
Selling Stockholders has full legal authority and power, and has
obtained any authorization or approval required by law (other than
those imposed by the Act and the securities or blue sky laws of
certain jurisdictions), to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder in the manner provided
in this Agreement;
(xvii) upon the issuance and delivery to the Underwriters
of the Shares pursuant to the Underwriting Agreement, assuming the
Underwriters are acting in good faith and do not have knowledge of any
"adverse claim," as such term is used in Section 8-302 of the Uniform
Commercial Code, the Underwriters will acquire such Shares free and
clear of any adverse claim;
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<PAGE>
(xviii) to the best of such counsel's knowledge, the
consummation of the transactions contemplated hereby and by the Power
of Attorney and the Custody Agreement and the fulfillment of the terms
hereof and thereof will not constitute a breach or violation of or
default under any trust, indenture, agreement or other instrument to
which any of the Selling Stockholders is a party or by which any of
the Selling Stockholders is bound;
(xix) the Attorney-in-Fact has been duly authorized by
each Selling Stockholder to execute and deliver on behalf of each
Selling Stockholder this Agreement and any other document necessary or
desirable in connection with the transactions contemplated hereby and
to deliver the Shares to be sold by the Selling Stockholder and
receive payment therefor pursuant hereto; and
(xx) to the knowledge of such counsel, no approval,
authorization, consent or order of or filing with any federal, state
or local governmental or regulatory commission, board, body, authority
or agency is required in connection with the sale of the Shares to be
sold by the Selling Stockholders as contemplated hereby other than
registration of the Shares under the Act (except such counsel need
express no opinion as to any necessary qualification under the state
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters);
In addition, such counsel shall state that such counsel has
participated in conferences with officials and other representatives of the
Company, the Underwriters, counsel to the Underwriters and the independent
certified public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and related
matters were discussed, and although they have not verified the accuracy or
completeness of the statements contained in the Registration Statement or
the Prospectus, nothing has come to the attention of such counsel that
causes them to believe that the Registration Statement or any amendment
thereto, at the time such Registration Statement or amendment became
effective, 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 not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such supplement, and
at all times up to and including the time of purchase 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 (it being
understood that such counsel need express no opinion with respect to the
financial statements and schedules included in the Registration Statement
or Prospectus).
(b) The Company shall furnish to you at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of Gregory T. Cortese, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with
16
<PAGE>
reproduced copies for each of the other Underwriters and in form
satisfactory to Gibson, Dunn & Crutcher LLP, counsel for the Underwriters,
stating that:
(i) each of the Subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the state in which such Subsidiary is incorporated, with full
corporate power and authority to own its properties and to conduct its
business as described in the Registration Statement and the
Prospectus;
(ii) each of the Company and each of the Subsidiaries is
duly qualified or licensed to do business by and is in good standing
as a foreign corporation in each jurisdiction in which it conducts
business or owns property and in which the failure, individually or in
the aggregate, to be so licensed or qualified could have a material
adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company
and the Subsidiaries taken as a whole;
(iii) all of the issued and outstanding shares of capital
stock of each of the Subsidiaries, except for ISSI Corp. with respect
to which counsel opines as to the 51% of the issued and outstanding
shares of capital stock owned by it, and all of the shares of Phoenix
representing the Company's 44% interest therein, are owned directly by
the Company, all of such shares have been duly authorized and validly
issued and are fully paid and nonassessable and, except as set forth
in the Prospectus, are owned, directly or indirectly, by the Company
free and clear of any pledge, lien, encumbrance, security interest,
preemptive right or other claim; and there are no rights, warrants,
options or other agreements to acquire or instruments convertible into
or exchangeable for any shares of capital stock or other equity
interest of any Subsidiary, except as set forth in the Prospectus;
(iv) to the best of such counsel's knowledge, neither the
Company nor any of the Subsidiaries is in breach of or in default
under (nor has any event occurred which with notice, lapse of time or
both would constitute a breach of or default under) any license,
indenture, lease, mortgage, deed of trust, bank loan or credit
agreement or any other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries or their properties are bound or affected or under
any law, regulation or rule or any decree, judgment or order
applicable to the Company or any of the Subsidiaries, except for such
matters as could not, individually or in the aggregate, have a
material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the
Company and the Subsidiaries taken as a whole;
(v) to the best of such counsel's knowledge, after due
inquiry, the Company has not violated any Environmental Laws, nor any
federal or state law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable federal or state
wages and hours laws, nor any provisions of the Employee Retirement
Income Security Act or the rules and regulations promulgated
thereunder, which in each case could reasonably be expected to result
in any material adverse effect on the
17
<PAGE>
properties, assets, operations, business, business prospects or
condition (financial or other) of the Company;
(vi) the Company and the Subsidiaries have such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including without limitation under any
applicable regulations of the United States Food and Drug
Administration, as are necessary to own, lease and operate their
properties and to conduct their businesses in the manner described in
the Prospectus in all material respects; to the best of such counsel's
knowledge, after due inquiry, the Company and the Subsidiaries have
fulfilled and performed all of their material obligations with respect
to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the
holder of any such permit, subject in each case to such qualification
as may be set forth in the Prospectus; and, except as described in the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or the Subsidiaries;
(vii) to the best of such counsel's knowledge, no person
has the right, contractual or otherwise, to cause the Company to issue
to it, or to register pursuant to the Act, any securities of the
Company in consequence of the issue and sale of the Shares to the
Underwriters hereunder; and
(viii) the execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby do not and will not conflict with, or result in
any breach of, or constitute a default under (nor constitute any event
which with notice, lapse of time or both would constitute a breach of
or default under), the charter or bylaws of the Company or any of the
Subsidiaries, or under any provision of any license, indenture, lease,
mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries or their properties are bound or affected and which is
filed as an Exhibit to the Registration Statement (or incorporated by
reference therein) , or under any federal, state or local law,
regulation or rule, or any decree, judgment or order applicable to the
Company or any of the Subsidiaries and of which such counsel has
knowledge.
(c) You shall have received from Price Waterhouse LLP
letters dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and addressed
to the Underwriters (with reproduced copies for each of the Underwriters)
in form and substance satisfactory to the Managing Underwriters.
(d) You shall have received at the time of purchase and
at the additional time of purchase, as the case may be, opinions from
Gibson, Dunn & Crutcher LLP in form and substance satisfactory to you.
(e) No amendment or supplement to the Registration
Statement or the Prospectus, including documents deemed to be incorporated
by reference
18
<PAGE>
therein, shall be filed prior to the time the Registration
Statement becomes effective to which you shall have objected in writing.
(f) The Registration Statement shall become effective at
or before 5:00 P.M., New York City time, on the date of this Agreement and,
if Rule 430A under the Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act at or before 5:00
P.M., New York City time, on the second full business day after the date of
this Agreement; provided, however, that the Company, the Selling
Stockholders and you and any group of Underwriters, including you, who have
agreed hereunder to purchase in the aggregate at least 50% of the Firm
Shares from time to time may agree in writing or by telephone, confirmed in
writing, on a later date.
(g) Prior to the time of purchase or the additional time
of purchase, as the case may be: (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall 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; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall 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 light of the
circumstances under which they were made, not misleading.
(h) Between the time of execution of this Agreement and
the time of purchase or the additional time of purchase, as the case may
be, there has not been: (i) any material and adverse change, present or
prospective, in the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole, other than as described in the Registration
Statement and the Prospectus; (ii) any transaction that is material to the
Company and the Subsidiaries taken as a whole contemplated or entered into
by the Company or any of the Subsidiaries, other than as described in the
Registration Statement and the Prospectus; or (iii) any obligation,
contingent or otherwise, directly or indirectly, incurred by the Company or
any of the Subsidiaries that is material to the Company and the
Subsidiaries taken as a whole, other than as described in the Registration
Statement and the Prospectus.
(i) The Company, at the time of purchase or additional
time of purchase, as the case may be, will deliver to you a certificate of
two of its executive officers to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of each such date and the conditions set forth in Section 8(f)
and Section 8(g) have been met.
(j) You shall have received a signed letter, dated the
date of this Agreement, from each of the stockholders listed in Schedule C
to the effect that such persons shall not sell, contract to sell, grant any
option to sell, transfer or otherwise dispose of, directly or indirectly,
any shares of Common Stock or securities convertible into or exchangeable
for Common Stock or warrants or
19
<PAGE>
other rights to purchase Common Stock for a period of 90 days from the date
of the Prospectus without the prior written consent of Dillon, Read & Co.
Inc.
(k) The Company and the Selling Stockholders shall have
furnished to you such other documents and certificates as to the accuracy
and completeness of any statement in the Registration Statement or the
Prospectus as of the time of purchase and the additional time of purchase,
as the case may be, as you reasonably may request.
(l) The Company and the Selling Stockholders shall have
performed such of their respective obligations under this Agreement as are
to be performed by the terms hereof at or before the time of purchase and
at or before the additional time of purchase, as the case may be.
(m) The Shares shall have been approved for listing on
the New York Stock Exchange.
(n) The Attorney-in-Fact, at the time of purchase or
additional time of purchase, as the case may be, shall have delivered to
you a certificate to the effect that the Attorney-in-Fact is not aware that
any of the representations and warranties of the Selling Stockholders as
set forth in this Agreement are not true and correct as of such date.
9. Effective Date of Agreement; Termination.
----------------------------------------
(a) This Agreement shall become effective (i) if Rule 430A under
the Act is not used, when you shall have received notification of the
effectiveness of the Registration Statement, or (ii) if Rule 430A under the Act
is used, when the parties hereto have executed and delivered this Agreement.
(b) The obligations of the several Underwriters hereunder shall
be subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange shall have been suspended or minimum prices shall have
been established on the New York Stock Exchange, or if a banking moratorium
shall have been declared either by the United States or New York State
authorities, or if the United States shall have declared war in accordance with
its constitutional processes or there shall have occurred any material outbreak
or escalation of hostilities or other national or international calamity or
crisis of such magnitude in its effect on, or any material adverse change in,
any financial market which, in each case, in your judgment, or in the judgment
of such group of Underwriters, makes it impracticable to market the Shares. If
you or any group of Underwriters elect to terminate this Agreement as provided
in this Section 9(b), the Company, the Selling Stockholders and each other
Underwriter shall be notified promptly by letter or telegram.
(c) If any Underwriter shall default in its obligation to take
up and pay for the Firm Shares to be purchased by it hereunder and if the number
of Firm Shares which all Underwriters so defaulting shall have agreed but failed
to take up and pay for does not exceed 10% of the total number of Firm Shares,
the non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate principal amount of Firm Shares
20
<PAGE>
they are obligated to purchase pursuant to Section 1) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all non-
defaulting Underwriters pro rata in proportion to the aggregate number of Firm
Shares set opposite the names of such non-defaulting Underwriters in Schedule A.
(d) If any Underwriter shall default in its obligation to take
up and pay for the Firm Shares to be purchased by it hereunder and if the number
of Firm Shares which all Underwriters so defaulting shall have agreed but failed
to take up and pay for exceeds 10% of the total number of Firm Shares, and
arrangements satisfactory to you and the Company are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter.
(e) Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Firm Shares hereunder unless all of the Firm Shares
are purchased by the Underwriters (or by substituted underwriters selected by
you with the approval of the Company or selected by the Company with your
approval pursuant to Section 9(d)). If a new Underwriter or Underwriters are
substituted for a defaulting Underwriter or Underwriters in accordance with
Section 9(d), the Company or you shall have the right to postpone the time of
purchase for a period not exceeding five business days in order that any
necessary change in the Registration Statement and the Prospectus and other
documents may be effected. The term Underwriter as used in this Agreement shall
refer to and include any Underwriter substituted under this Section 9 with like
effect as if such substituted Underwriter had originally been named in Schedule
A.
(f) If the purchase of the Shares by the Underwriters, as
contemplated by this Agreement, is not consummated for any reason permitted
under this Agreement or if such purchase is not consummated because the Company
or the Selling Stockholders, as the case may be, shall be unable to comply with
any of the terms of this Agreement, the Company or the Selling Stockholders, as
the case may be, shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5(l), 7 and 10), and the
Underwriters shall be under no obligation or liability to the Company and the
Selling Stockholders under this Agreement (except to the extent provided in
Section 10).
10. Indemnity by the Company, the Selling Stockholders and the
------------------------------------- --------------------
Underwriters.
- ------------
(a) The Company and each of the Selling Stockholders, jointly
and severally, agree to indemnify, defend and hold harmless each Underwriter,
each person that controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and each Underwriter's agents,
employees, officers and directors and the agents, employees, officers and
directors of any such controlling person (collectively, the "Underwriter
indemnified parties") from and against any and all losses, claims, damages,
judgments, liabilities and expenses (including the fees and expenses of counsel
and other expenses in connection with investigating, defending or settling any
such action or claim) which, jointly or severally, any Underwriter indemnified
party may incur as they are incurred (and regardless of whether such Underwriter
indemnified party
21
<PAGE>
is a party to the litigation, if any) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement relating to the Shares or the Prospectus or any
Preliminary Prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, judgments, liabilities or expenses arise out of, or are
based upon, any such untrue statement or omission or alleged untrue statement or
omission based upon and in conformity with information with respect to any
Underwriter furnished in writing by any Underwriter through you to the Company
expressly for use therein with reference to such Underwriter. This indemnity
agreement will be in addition to any liability the Company or the Selling
Stockholders otherwise may have.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Underwriter indemnified party, with respect to which indemnity may be sought
against the Company or a Selling Stockholder pursuant to this Section 10, such
Underwriter indemnified party shall promptly notify the Company and each Selling
Stockholder in writing, and the Company and the Selling Stockholders shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Underwriter indemnified party and payment of all fees and
expenses; provided that the omission so to notify the Company and the Selling
Stockholders shall not relieve them from any liability that they may have to any
Underwriter indemnified party. An Underwriter indemnified party shall have the
right to employ separate counsel in any such action or proceeding and to assume
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter indemnified party unless (i) the employment of such
counsel has been authorized in writing by the Company or the Selling
Stockholders, (ii) the Company and the Selling Stockholders have failed promptly
to assume the defense and employ counsel satisfactory to the Underwriter
indemnified party or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both the Underwriter indemnified party
and the Company or the Selling Stockholders and such Underwriter indemnified
party shall have reasonably concluded that there may be one or more legal
defenses available to it that are different from or additional to those
available to the Company and the Selling Stockholders (in which case the Company
and the Selling Stockholders shall not have the right to assume the defense of
such action on behalf of such Underwriter indemnified party), in any of which
events such fees and expenses shall be borne by the Company and the Selling
Stockholders and reimbursed as they are incurred. It is understood, however,
that the Company and the Selling Stockholders shall not, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Underwriter
indemnified parties, which firm shall be designated in writing by Dillon, Read &
Co. Inc., and that all such fees and expenses shall be reimbursed as they are
incurred. The Company and the Selling Stockholders shall not be liable for any
settlement of any such action effected without the written consent of the
Company or the Selling Stockholders (which consent shall not be unreasonably
withheld or delayed), but if settled with the written consent of the Company or
the Selling Stockholders, or if there is a final judgment with respect thereto,
the Company and the Selling Stockholders agree to indemnify and hold harmless
each Underwriter indemnified party from and against any loss or liability by
reason of such settlement or judgment.
22
<PAGE>
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement, and any person that controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (collectively, the
"Company indemnified parties") and each Selling Stockholder to the same extent
as the foregoing indemnity from the Company to the Underwriter indemnified
parties, but only with respect to information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use with respect to such Underwriter in the Registration
Statement, any Preliminary Prospectus or the Prospectus. In case any action
shall be brought against any Company indemnified party or any Selling
Stockholder based on the Registration Statement, any Preliminary Prospectus or
the Prospectus and in respect of which indemnity may be sought against any
Underwriter pursuant to this Section 10(c), such Underwriter shall have the
rights and duties given to the Company and the Selling Stockholders by Section
10(b) (except that if the Company and the Selling Stockholders shall have
assumed the defense thereof such Underwriter shall not be required to do so, but
may employ separate counsel therein and participate in the defense thereof,
provided that the fees and expenses of such separate counsel shall be at the
expense of such Underwriter), and the Company indemnified parties and the
Selling Stockholders shall have the rights and duties given to the Underwriter
indemnified parties by Section 10(b).
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless any Underwriter indemnified
party or any Company indemnified party or any Selling Stockholder, then the
party required to indemnify such indemnified party under this Section 10, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, judgments, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand from
the offering of the Shares, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholders on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue
statement 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, by the Selling Stockholders or by the Underwriters, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, judgments, liabilities and expenses
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any claim or action.
23
<PAGE>
The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
10(d) were determined by pro rata allocation or by any other method of
allocation (even if the Underwriters were treated as one entity for such
purpose) that does not take account of the equitable considerations referred to
in this Section 10(d). Notwithstanding the provisions of this Section 10(d), no
Underwriter indemnified party shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by such Underwriter indemnified party and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter
indemnified party otherwise has been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of 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 to contribute
pursuant to this Section 10 are several in proportion to their respective
underwriting commitments and are not joint.
The statements under the caption "Underwriting" in the Prospectus
(to the extent such statements relate to an Underwriter) and in the
stabilization language in the inside front cover of the Prospectus constitute
the only information furnished to the Company in writing by such Underwriter
expressly for use in the Registration Statement, any Preliminary Prospectus or
the Prospectus.
(e) The indemnity and contribution agreements contained in this
Section 10 and the representations, warranties and covenants of the Company and
the Selling Stockholders contained in this Agreement shall remain in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter indemnified party or by or on behalf of any Company indemnified
party or any Selling Stockholder, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. Subject to the provisions
of Section 10(b) and Section 10(c), the Company, each Selling Stockholder and
each Underwriter agree promptly to notify the other of the commencement of any
litigation or proceeding against it in connection with the issuance and sale of
the Shares or in connection with the Registration Statement or the Prospectus.
11. Notices. Except as otherwise herein provided, all
-------
statements, requests, notices and agreements shall be in writing or by
telegram and, if to the Underwriters, shall be sufficient in all respects if
delivered or sent to Dillon, Read & Co. Inc., 535 Madison Avenue, New York, New
York 10022, Attention: Syndicate Department; if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of
the Company at 8383 Seneca Turnpike, New Hartford, New York 13413-4991,
Attention: Chief Financial Officer; and if to the Selling Stockholders, shall be
sufficient in all respects, if delivered or sent to ____________.
12. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND
------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS
AGREEMENT HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT
A PART OF THIS AGREEMENT .
13. Parties at Interest. The Agreement herein set forth has been
-------------------
and is made solely for the benefit of the Underwriters, the Company, the Selling
Stockholders,
24
<PAGE>
the Underwriter indemnified parties and the Company indemnified parties, and
their respective successors, assigns, executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties
------------
in counterparts which together shall constitute one and the same agreement among
the parties.
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholders and the Underwriters, please so indicate in
the space provided below for such purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Company, the Selling
Stockholders and the Underwriters, severally.
Very truly yours,
PAR TECHNOLOGY CORPORATION
By: __________________________
Name:
Title:
THE SELLING STOCKHOLDERS NAMED
IN SCHEDULE B ATTACHED HERETO
By: _______________________
Attorney-in-Fact
Accepted and agreed to as of
the date first above written,
on behalf of themselves,
The Robinson-Humphrey Company, Inc.
and Volpe, Welty & Company,
and the other
several Underwriters named
in Schedule A
DILLON, READ & CO. INC., as
Managing Underwriter
25
<PAGE>
By: ___________________________
Name:
Title:
26
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Firm Shares
- ----------- ------------
<S> <C>
Dillon, Read & Co. Inc...................
The Robinson-Humphrey Company, Inc.......
Volpe, Welty & Company...................
------------
Total
===================================================
</TABLE>
<PAGE>
SCHEDULE B
SELLING STOCKHOLDERS
<TABLE>
<CAPTION>
Number of Firm
Selling Stockholder Shares to be Sold
- --------------------- ---------------------------
<S> <C>
John W. and Deanna D. Sammon, Charitable 600,000
Trust, John W. Sammon, Jr. and Deanna D.
Sammon trustees
Dr. John W. Sammon, Jr. 397,490
Charles A. Constantino 200,000
Deanna D. Sammon 177,510
TOTAL 1,375,000
Number of Additional
Selling Stockholder Shares to be Sold
- ---------------------- --------------------------
Dr. John W. Sammon, Jr. 268,750
Deanna D. Sammon, as custodian for 70,000 (35,000
two children each)
Charles A. Constantino 50,000
Dr. John W. Sammon, Jr. as trustee for Karen
Sammon pursuant to Trust
Agreement dated July 5, 1983 35,000
TOTAL 423,750
</TABLE>
28
<PAGE>
SCHEDULE C
STOCKHOLDERS WHO HAVE EXECUTED LOCK-UP AGREEMENTS
J. Whitney Haney
Sangwoo Ahn
Dr. James C. Castle
Albert Lane, Jr.
Dr. John P. Retelle, Jr.
Ronald J. Casciano
29
<PAGE>
EXHIBIT 3.2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
PAR Technology Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at a meeting duly held,
adopted a resolution proposing and declaring advisable the following amendment
to the Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of PAR Technology
Corporation be amended by changing Section 1. of the Fourth Article thereof
so that, as amended, said Section and Article shall be and read as follows:
The Corporation shall have authority to issue twenty million (20,000,000)
shares of stock, par value $.02 per share consisting of nineteen million
(19,000,000) shares of Common Stock and one million (1,000,000) shares of
Preferred Stock, par value $.02 per share.
SECOND: That in lieu of a meeting and vote of stockholders, the stockholders
have given unanimous written consent to said amendment in accordance with the
provisions Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Section 242 and 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, said PAR Technology Corporation has caused this certificate
to be signed by John W. Sammon, Jr. its President and Chairman of the Board of
Directors and attested by Gregory T. Cortese, its Secretary, this___day of
_______, 1996.
PAR Technology Corporation
By
--------------------------------------------
President & Chairman of the Board of Directors
ATTEST:
By
----------------------
Secretary
<PAGE>
TESTA, HURWITZ & THIBEAULT, LLP
High Street Tower, 125 High Street
Boston, Massachusetts 02110
June 3, 1996
PAR Technology Corporation
PAR Technology Park
8383 Seneca Turnpike
New Hartford, New York 13413-4991
RE: Registration Statement on Form S-2
Relating to 3,248,750 shares of Common Stock
--------------------------------------------
Dear Sir or Madam:
This opinion relates to an aggregate of 3,248,750 shares of Common Stock,
par value $.02 per share (the "Common Stock"), of PAR Technology Corporation
(the "Company"), which are the subject matter of a Registration Statement on
Form S-2 filed with the Securities and Exchange Commission on May 20, 1996, as
amended (the "Registration Statement").
The 3,248,750 shares of Common Stock covered by the Registration Statement
consist of 1,450,000 shares being sold by the Company, 1,375,000 shares being
sold by certain selling stockholders (the "Selling Stockholders") and an
additional 423,750 shares subject to an over-allotment option granted by the
Selling Stockholders to the underwriters named in the prospectus (the
"Prospectus") included in the Registration Statement.
Based upon such investigation as we have deemed necessary, we are of the
opinion that the shares of Common Stock being sold by the Company and the
Selling Stockholders will, when sold, be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our firm in the Prospectus under
the caption "Legal Matters."
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
Testa, Hurwitz & Thibeault, LLP
