<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 9, 1996
REGISTRATION STATEMENT NO. 333-06885
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BROOKTROUT TECHNOLOGY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MASSACHUSETTS 04-2814792
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
410 FIRST AVENUE
NEEDHAM, MA 02194
(617) 449-4100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
ERIC R. GILER
PRESIDENT
BROOKTROUT TECHNOLOGY, INC.
410 FIRST AVENUE
NEEDHAM, MA 02194
(617) 449-4100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
WITH COPIES TO:
<TABLE>
<S> <C>
THOMAS P. STORER, P.C. KENNETH R. LAMB, ESQ.
GOODWIN, PROCTER & HOAR LLP GIBSON, DUNN & CRUTCHER LLP
EXCHANGE PLACE ONE MONTGOMERY STREET, TELESIS TOWER
BOSTON, MA 02109-2881 SAN FRANCISCO, CA 94104-4505
(617) 570-1000 (415) 393-8200
</TABLE>
------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
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, other than securities offered only in connection with dividend or interest
reinvestment plans, 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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
The sole purpose for the filing of this Amendment No. 1 to the Registration
Statement (File No.
333-06885) is to put on file three exhibits to the Registration Statement, as
indicated in Part II hereof, and to complete Item 14 of Part II of the
Registration Statement. No changes to Part I of the Registration Statement are
to be effected by this Amendment No. 1 and Part I is therefore omitted from this
Amendment No. 1.
<PAGE> 3
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
The following table sets forth an itemized statement of all expenses
expected to be incurred in connection with the issuance and distribution of the
securities being registered (all of which are estimated, other than the filing
fee of the Securities and Exchange Commission):
<S> <C>
Securities and Exchange Commission filing fee............................. $ 19,852
NASD Fee.................................................................. 6,257
NASDAQ Listing Fee........................................................ 17,500
Legal fees and expenses................................................... 175,000
Accounting fees and expenses.............................................. 60,000
Printing expenses......................................................... 75,000
Blue sky fees and expenses................................................ 10,000
Miscellaneous............................................................. 36,391
--------
$400,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Massachusetts corporation. Reference is made to Chapter
156B, Section 13 of the Massachusetts Business Corporation Law (the "MBCL"),
which enables a corporation in its original articles of organization or an
amendment thereto to eliminate or limit the personal liability of a director for
monetary damages for violations of the director's fiduciary duty, except (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Sections
61 and 62 of the MBCL (providing for liability of directors for authorizing
unauthorized distributions and for making loans to directors, officers and
certain shareholders) or (iv) for any transaction from which a director derived
an improper personal benefit.
Reference also is made to Chapter 156B, Section 67 of the MBCL, which
provides that a corporation may indemnify directors, officers, employees and
other agents and persons who serve at its request as directors, officers,
employees or other agents of another organization or who serve at its request in
any capacity with respect to any employee benefit plan, to the extent specified
or authorized by the articles of organization, a by-law adopted by the
stockholders or a vote adopted by the holders of a majority of the shares of
stock entitled to vote on the election of directors. Such indemnification may
include payment by the corporation of expenses incurred in defending a civil or
criminal action or proceeding in advance of the final disposition of such action
or proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated to be not entitled to indemnification
under Section 67 which undertaking may be accepted without reference to the
financial ability of such person to make repayment. Any such indemnification may
be provided although the person to be indemnified is no longer an officer,
director, employee or agent of the corporation or of such other organization or
no longer serves with respect to any such employee benefit plan. No
indemnification shall be provided, however, for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation or to the extent that such matter relates to service
with respect to an employee benefit plan, in the best interest of the
participants or beneficiaries of such employee benefit plan.
Article VI.D of the Restated Articles of Organization of the Company
provides that, except under certain circumstances, directors of the Company
shall not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duties as a director.
II-1
<PAGE> 4
Article IV of the By-laws of the Company provides for indemnification of
the officers and directors of the Company to the full extent provided by
applicable law.
ITEM 16. EXHIBITS.
<TABLE>
Unless otherwise indicated, all exhibits were filed with the Registration
Statement on Form S-3 on June 26, 1996.
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
*1.1 Form of Underwriting Agreement.
*5.1 Opinion of Goodwin, Procter & Hoar LLP regarding the legality of the securities being
registered.
11.1 Statement regarding computation of per share earnings
*23.1 Consent of Goodwin, Procter & Hoar LLP (included in its opinion filed as Exhibit 5).
*23.2 Independent Auditors' Consent -- Deloitte & Touche LLP.
24.1 Power of Attorney (included in signature page of Registration Statement filed on June
26, 1996).
27 Financial Data Schedule.
<FN>
- ---------------
* Filed herewith.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) 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 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.
(b) 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 provisions described under Item 15 above, 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.
(c) 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> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boston, Commonwealth of Massachusetts,
on July 9, 1996.
BROOKTROUT TECHNOLOGY, INC.
By: /s/ ROBERT C. LEAHY
------------------------------------
Robert C. Leahy
Vice President of Finance and
Operations, and Treasurer
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to this Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ----------------------------------- --------------
<C> <S> <C>
* President, Chief Executive Officer July 9, 1996
- ---------------------------------------- and Director (Principal Executive
Eric R. Giler Officer)
* Vice President of Research and July 9, 1996
- ---------------------------------------- Development, Clerk and Director
David W. Duehren
/s/ ROBERT C. LEAHY Vice President of Finance and July 9, 1996
- ---------------------------------------- Operations, and Treasurer
Robert C. Leahy (Principal Financial and Accounting
Officer)
* Vice President of Advanced Product July 9, 1996
- ---------------------------------------- Engineering and Director
Patrick T. Hynes
* Director July 9, 1996
- ----------------------------------------
Robert G. Barrett
* Director July 9, 1996
- ----------------------------------------
David L. Chapman
* Director July 9, 1996
- ----------------------------------------
W. Brooke Tunstall
</TABLE>
*By /s/ ROBERT C. LEAHY
-----------------------------
Robert C. Leahy
Attorney-in-fact
<PAGE> 1
GD&C DRAFT OF 7/2/96
BROOKTROUT TECHNOLOGY, INC.
2,250,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
----------------------
July __, 1996
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
TUCKER ANTHONY INCORPORATED
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Dear Sirs:
Brooktrout Technology, Inc., a Massachusetts corporation (the "Company")
and the Stockholders of the Company named in Schedule 2 hereto (collectively,
the "Selling Securityholders") hereby confirm their agreement with the several
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom you have
been duly authorized to act as representatives (in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. SECURITIES. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to the several Underwriters an aggregate of
1,445,029 shares of the Company's Common Stock, par value $.01 per share
("Common Stock"), and the Selling Securityholders propose to sell to the several
Underwriters 804,971 shares of Common Stock (collectively with the shares of
Common Stock to be issued and sold by the Company, the "Firm Securities"). The
Company also proposes to issue and sell to the several Underwriters not more
than 337,500 additional shares of Common Stock if requested by the
Representatives as provided in Section 3 of this Agreement. Any and all shares
of Common Stock to be purchased by the
- ---------------
(1) Plus an option to purchase from Brooktrout Technology, Inc. up to 337,500
additional shares to cover over-allotments.
<PAGE> 2
Underwriters pursuant to such option are referred to herein as the "Option
Securities", and the Firm Securities and any Option Securities are collectively
referred to herein as the "Securities".
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SECURITYHOLDERS.
(a) The Company represents and warrants to and agrees with each of the
several Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"). A registration
statement on such Form (File No. 333-06885) with respect to the
Securities, including a prospectus subject to completion, has been
filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Act, and one or more amendments to such
registration statement may have been so filed. After the execution of
this Agreement, the Company will file with the Commission either (A)
if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (1)
if the Company relies on Rule 434 under the Act, a Term Sheet (as
hereinafter defined) relating to the Securities, that shall identify
the Preliminary Prospectus (as hereinafter defined) that it
supplements and, if required to be filed pursuant to Rules 434(c)(2)
and 424(b), an Integrated Prospectus (as hereinafter defined), in
either case, containing such information as is required or permitted
by Rule 434, 430A and 424(b) under the Act or (2) if the Company does
not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or,
if no such amendment shall have been filed, in such registration
statement), with such changes or insertions as are required by Rule
430A under the Act or permitted by Rule 424(b) under the Act, and in
the case of clause (A)(1) or (A)(2) of this sentence as have been
provided to and approved by the Representatives prior to the execution
of this Agreement, or (B) if such registration statement, as it may
have been amended, has not been declared by the Commission to be
effective under the Act, an amendment to such registration statement,
including a form of prospectus, a copy of which amendment has been
furnished to and approved by the Representatives prior to the
execution of this Agreement. The Company may also file a related
registration statement with the Commission pursuant to Rule 462(b)
under the Act for the purpose of registering certain additional
Securities, which registration shall be effective upon filing with the
Commission.
As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including (A) all financial schedules and exhibits thereto, (B) all documents
incorporated by reference therein filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and (C) any information omitted therefrom
pursuant to Rule 430A under the Act and included in the Prospectus (as
hereinafter defined) or, if required to be filed pursuant to Rule 434(c)(2) and
424(b), in the Integrated Prospectus; the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or
2
<PAGE> 3
Prospectus incorporated therein at the time such Registration Statement becomes
effective); the term "Registration Statement" includes both the Original
Registration Statement and any Rule 462(b) Registration Statement; the term
"Preliminary Prospectus" means each prospectus subject to completion filed with
such registration statement or any amendment thereto (including the prospectus
subject to completion, if any, included in the Registration Statement or any
amendment thereto at the time it was or is declared effective), including all
documents incorporated by reference therein filed under the Exchange Act; the
term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant to Rule
424(b)(7) under the Act, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the
prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and if
no prospectus is required to be filed pursuant to Rule 424(b) under
the Act, the prospectus included in the Registration Statement,
including, in the case of clauses (A), (B) or (C) of this sentence,
all documents incorporated by reference therein filed under the
Exchange Act; the term "Integrated Prospectus" means a prospectus
first filed with the Commission pursuant to Rules 434(c)(2) and 424(b)
under the Act; and the term "Term Sheet" means any abbreviated term
sheet that satisfies the requirements of Rule 434 under the Act. Any
reference in this Agreement to an "amendment or supplement" to any
Preliminary Prospectus, the Prospectus or any Integrated Prospectus or
an "amendment" to any registration statement (including the
Registration Statement) shall be deemed to include any document
incorporated by reference therein that is filed with the Commission
under the Exchange Act after the date of such Preliminary Prospectus,
Prospectus, Integrated Prospectus or registration statement, as the
case may be; any reference herein to the "date" of a Prospectus that
includes a Term Sheet shall mean the date of such Term Sheet. For
purposes of the preceding sentence, any reference to the "effective
date" of an amendment to a registration statement shall, if such
amendment is effected by means of the filing with the Commission under
the Exchange Act of a document incorporated by reference in such
registration statement, be deemed to refer to the date on which such
document was so filed with the Commission.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus and any amendment or supplement thereto was filed with the
Commission, it (A) contained all statements required to be stated therein
in accordance with, and complied in all material respects with the
requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder, and (B) did not include any
untrue statement of
3
<PAGE> 4
a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration Statement or
any amendment thereto was or is declared effective, it (A) contained or
will contain all statements required to be stated therein in accordance
with, and complied or will comply in all material respects with the
requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (B) did not or will not
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading.
When the Prospectus or any Term Sheet that is a part thereof or any
Integrated Prospectus or any amendment or supplement thereto is filed with
the Commission pursuant to Rule 424(b) (or, if the Prospectus or part
thereof or such amendment or supplement is not required to be so filed,
when the Registration Statement or the amendment thereto containing such
amendment or supplement to the Prospectus was or is declared effective),
on the date when the Prospectus is otherwise amended or supplemented and
on the Firm Closing Date and any Option Closing Date (both as hereinafter
defined), each of the Prospectus, and, if required to be filed pursuant to
Rules 434(c)(2) and 424(b) under the Act, the Integrated Prospectus as
amended or supplemented at any such time, (A) contained or will contain
all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements of,
the Act, the Exchange Act and the respective rules and regulations of the
Commission thereunder and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing provisions of
this paragraph (ii) do not apply to statements or omissions made in any
Preliminary Prospectus or any amendment or supplement thereto, the
Registration Statement or any amendment thereto, the Prospectus or, if
required to be filed pursuant to Rules 434(c)(2) and 424(b) and the Act,
the Integrated Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for
use therein.
(iii) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective (A) the
Company has filed a Rule 462(b) Registration Statement in compliance with
and that is effective upon filing pursuant to Rule 462(b) and has received
confirmation of its receipt and (B) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection
with the filing of the Rule 462(b) Registration Statement, in compliance
with Rule 111 promulgated under the Act or the Commission has received
payment of such filing fee.
(iv) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations in good standing under
the laws of their respective jurisdictions of incorporation and are duly
qualified to transact business as foreign corporations and are in good
standing under the laws of all other jurisdictions where the ownership or
leasing of their respective properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified does not
4
<PAGE> 5
amount to a material liability or disability to the Company and its
subsidiaries, taken as a whole.
(v) The Company and each of its subsidiaries have full power
(corporate and other) to own or lease their respective properties and
conduct their respective businesses as described in the Registration
Statement, each of the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus); and the Company has full power
(corporate and other) to enter into this Agreement and to carry out all the
terms and provisions hereof to be carried out by it.
(vi) The issued shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and, except for directors' qualifying shares and as
otherwise set forth in the Registration Statement, each of the Prospectus
and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus), are owned beneficially by the Company free and clear of any
security interests, liens, encumbrances, equities or claims.
(vii) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement, each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus). All of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable. The Firm Securities and the Option Securities have been duly
authorized and at the Firm Closing Date or the related Option Closing Date
(as the case may be), after payment therefor in accordance herewith, will
be validly issued, fully paid and nonassessable. No holders of outstanding
shares of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Securities, and no
holder of securities of the Company has any right which has not been fully
exercised or waived to require the Company to register the offer or sale of
any securities owned by such holder under the Act in the public offering
contemplated by this Agreement.
(viii) The capital stock of the Company conforms to the
description thereof contained in the Registration Statement, each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(ix) Except as disclosed in the Registration Statement, each of
the Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), there are no outstanding (A) securities or
obligations of the Company or any of its subsidiaries convertible into or
exchangeable for any capital stock of the Company or any such subsidiary,
(B) warrants, rights or options to subscribe for or purchase from the
Company or any such subsidiary any such capital stock or any such
convertible or exchangeable
5
<PAGE> 6
securities or obligations, or (C) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or
options.
(x) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Registration
Statement, each of the Prospectus and any Integrated Prospectus (or, if
each of the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus), fairly present the
financial position of the Company and its consolidated subsidiaries and the
results of operations and changes in financial condition as of the dates
and periods therein specified. Such financial statements and schedules have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise
noted therein). The selected financial data set forth under the caption
"Selected Supplemental Consolidated Financial Information" in each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), and in the Company's Annual Report on Form 10-K/A
for the fiscal year ended December 31, 1995, fairly present, on the basis
stated in each of the Prospectus and any Integrated Prospectus (or such
Preliminary Prospectus) and such Annual Report, as amended, the information
included therein.
(xi) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their report with respect to the audited consolidated financial statements
and schedules included in the Registration Statement, each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), are independent public accountants as required by
the Act, the Exchange Act and the related published rules and regulations
thereunder.
(xii) The execution and delivery of this Agreement have been duly
authorized by the Company and this Agreement has been duly executed and
delivered by the Company, and is the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
(xiii) No legal or governmental proceedings are pending to which
the Company or any of its subsidiaries is a party or to which the property
of the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement, each of the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus),
and no such proceedings have been threatened against the Company or any of
its subsidiaries or with respect to any of their respective properties, and
no contract or other document is required to be described in the
Registration Statement, the Prospectus or any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus) or to be filed as an exhibit to the
Registration Statement that is not described therein or filed as required.
6
<PAGE> 7
(xiv) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except such as have been obtained,
such as may be required under state securities or blue sky laws and, if the
registration statement filed with respect to the Securities (as amended) is
not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the
Act, or (B) conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of their respective properties are bound,
or the charter documents or by-laws of the Company or any of its
subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Company or any of its subsidiaries.
(xv) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus or any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus
are not in existence, the most recent Preliminary Prospectus), neither the
Company nor any of its subsidiaries has sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding and there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise), management, business prospects, net
worth, or results of operations of the Company or any of its subsidiaries,
except in each case as described in or contemplated by each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(xvi) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus or any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus
are not in existence, the most recent Preliminary Prospectus) (A) the
Company and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction
not in the ordinary course of business; (B) the Company has not purchased
any of its outstanding capital stock, nor declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock; and (C)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its consolidated subsidiaries,
except in each case as described in or contemplated by each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(xvii) The Company has not, directly or indirectly, (A) taken any
action designed to cause or to result in, or that has constituted or which
might reasonably be
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<PAGE> 8
expected to constitute, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities or (B) since the filing of the Registration Statement (1) sold,
bid for, purchased, or paid anyone any compensation for soliciting
purchases of, the Securities or (2) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company (except for the sale of Securities by the Selling Securityholders
under this Agreement).
(xviii) None of the Company, its subsidiaries or any employee of
the Company or its subsidiaries has made any payment of funds of the
Company or its subsidiaries prohibited by any applicable law and no funds
of the Company or its subsidiaries have been set aside to be used for any
payment prohibited by any such law.
(xix) (A) The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses except where the failure to possess any such item
would not result in a material adverse change in the condition (financial
or otherwise), business prospects, net worth or results of operations of
the Company and its subsidiaries, and (B) neither the Company nor any such
subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a material adverse change in
the condition (financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries, except as
described in or contemplated by each of Prospectus or any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus
are not in existence, the most recent Preliminary Prospectus).
(xx) The Company is not an investment company under the
Investment Company Act of 1940, as amended, and this transaction will not
cause the Company to become an investment company subject to registration
under such Act.
(xxi) The Company and its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or have
requested extensions thereof (except in any case in which the failure so to
file would not have a material adverse effect on the Company and its
subsidiaries taken as a whole) and have paid all taxes required to be paid
by them and any other assessment, fine or penalty levied against them, to
the extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in good
faith or as described in or contemplated by each of Prospectus or any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(xxii) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to
occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials and the Company and its
subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state occupational safety and
health and environmental laws
8
<PAGE> 9
and regulations to conduct their respective businesses, and the Company and
each such subsidiary is in compliance with all terms and conditions of any
such permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals which would not, singly or in the aggregate,
result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, except as described in or contemplated by
each of Prospectus or any Integrated Prospectus (or, if the Prospectus and
any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(xxiii) Except for (A) the shares of capital stock of each of the
subsidiaries owned by the Company and (B) the Company's ownership of shares
of common stock and warrants to purchase common stock of Claflin & Clayton,
Inc., neither the Company nor any such subsidiary owns any shares of stock
or any other equity securities of any corporation or has any equity
interest in any firm, partnership, association or other entity, except as
described in or contemplated by the Prospectus or any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xxiv) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with management's general
or specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (C)
access to assets is permitted only in accordance with management's general
or specific authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxv) Except as described in the Registration Statement and each
of the Prospectus and any Integrated Prospectus, no default exists, and no
event has occurred which, with notice or lapse of time or both, would
constitute a default, in the due performance and observance of any term,
covenant or condition of any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or any of their respective properties is bound or may be affected, in any
respect that is materially adverse with regard to the property, business or
operations of the Company and its subsidiaries.
(xxvi) The Company has not distributed and, prior to the later of
(A) the Closing Date and (B) the completion of the distribution of the
Securities, will not distribute any offering material in connection with
the offering and sale of the Securities other than the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus and any Integrated Prospectus or Term Sheet or any amendment or
supplement thereto, or other materials, if any, permitted by the Act.
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<PAGE> 10
(xxvii) Neither the Company nor its subsidiaries own any items of
real property and each of them has marketable title to all tangible
personal property owned by each of them, in each case free and clear of any
security interests, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect the value of
such property and do not interfere with the use made or proposed to be made
of such property by the Company or such subsidiary, and any real property
and buildings held under lease by the Company or any such subsidiary are
held under valid, subsisting and enforceable leases, with such exceptions
as are not material and do not interfere with the use made or proposed to
be made of such property and buildings by the Company or such subsidiary,
in each case except as described in or contemplated by each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(xxviii) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the Company's and the Selling
Securityholders' knowledge, is threatened or imminent that could result in
a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company and
its subsidiaries, except as described in or contemplated by each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(xxix) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are reasonably considered by the Company to be
prudent and customary in the businesses in which they are engaged; neither
the Company nor any subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company nor any subsidiary has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not materially and adversely affect the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, except as described in or
contemplated by each of the Prospectus and any Integrated Prospectus (or,
if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(xxx) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's property or assets to
the Company or any other subsidiary of the Company, except as described in
or contemplated by each of the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(xxxi) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters pursuant
to this Agreement shall be
10
<PAGE> 11
deemed to be a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
(xxxii) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information (collectively, the
"Intellectual Property") currently employed by them in connection with
their respective businesses, and neither the Company nor any such
subsidiary has received any notice of infringement of or conflict with
asserted rights of any third party with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a material adverse change in
the condition (financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries, except as
described in or contemplated by each of the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus
are not in existence, the most recent Preliminary Prospectus).
(xxxiii) All patents, patent applications, trademark
registrations, trademark applications and registered copyrights which are
owned by the Company and its subsidiaries have been duly registered in,
filed in or issued by the United States Patent and Trademark Office, the
United States Register of Copyrights, or the corresponding offices of other
jurisdictions, and have been properly maintained and renewed in accordance
with all applicable provisions of law and administrative regulations of the
United States and each such jurisdiction.
(xxxiv) All licenses or other agreements under which the Company
or its subsidiaries are granted rights in Intellectual Property are in full
force and effect, except for those licenses or other agreements which are
not material to the Company or its subsidiaries and there is no default by
any party thereto which default could reasonably be expected to result in
a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company and
its subsidiaries. To the Company's and the Selling Securityholders'
knowledge, the licensors under said licenses and other agreements have and
had all requisite power and authority to grant the rights purported to be
conferred thereby, to the extent material with respect to the Company and
its subsidiaries. All licenses or other agreements under which the Company
or its subsidiaries have granted rights to others in Intellectual Property
owned or licensed by the Company or its subsidiaries are in full force and
effect, except for those licenses or other agreements which are not
material to the Company or its subsidiaries and there is no default by any
party thereto which default could reasonably be expected to result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries.
(xxxv) The Company and its subsidiaries have taken reasonable
steps in accordance with sound business practice to establish and preserve
its ownership of all material Intellectual Property rights with respect to
its products, services and technology. Except for those instances which
could not reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), business prospects, net worth or
11
<PAGE> 12
results of operations of the Company and its subsidiaries, the Company and
its subsidiaries have required all employees having access to non-public
information of the Company and its subsidiaries to execute agreements under
which such employees are required to convey to the Company ownership of all
inventions and developments conceived or created by them in the course of
their employment and to maintain the confidentiality of all such
information of the Company. Except for those instances which could not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, the Company and its
subsidiaries have not made any such information available to any person
other than employees of the Company or its subsidiaries except pursuant to
written agreements requiring the recipients to maintain the confidentiality
of such information and appropriately restricting the use thereof. The
Company has no knowledge of any infringement by others of any Intellectual
Property rights of the Company or its subsidiaries which infringement could
reasonably be expected to result in a material adverse change in the
condition (financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries.
(b) Each of the Selling Securityholders represents and warrants to,
and agrees with, each of the several Underwriters that:
(i) Such Selling Securityholder has full legal right and power to
enter into this Agreement and to sell, assign, transfer and deliver to the
Underwriters the Securities to be sold by such Selling Securityholder
hereunder in accordance with the terms of this Agreement; and this
Agreement has been duly executed and delivered by such Selling
Securityholder, and is the valid and binding agreement of such Selling
Securityholder, enforceable against such Selling Securityholder in
accordance with its terms.
(ii) Such Selling Securityholder has duly executed and delivered
a power of attorney and custody agreement (with respect to such Selling
Securityholder, the "Power-of-Attorney" and the "Custody Agreement",
respectively), each in the form heretofore delivered to the
Representatives, appointing Eric R. Giler and Robert C. Leahy as such
Selling Securityholder's attorneys-in-fact (the "Attorneys-in-Fact") with
authority to execute, deliver and perform this Agreement on behalf of such
Selling Securityholder and appointing Fleet National Bank as custodian
thereunder (the "Custodian"). Certificates in negotiable form, endorsed in
blank or accompanied by blank stock powers duly executed, with signatures
appropriately guaranteed, representing the Securities to be sold by such
Selling Securityholder hereunder, have been deposited with the Custodian
pursuant to the Custody Agreement for the purpose of delivery pursuant to
this Agreement. Such Selling Securityholder has full legal right and power
to enter into the Custody Agreement and the Power-of-Attorney and to
perform its obligations under the Custody Agreement. The Custody Agreement
and the Power-of-Attorney have been duly executed and delivered by such
Selling Securityholder and, assuming due authorization, execution and
delivery by the Custodian, are the legal, valid, binding and enforceable
instruments of such Selling Securityholder. Such Selling Securityholder
agrees that each of the Securities represented by the certificates on
deposit with the Custodian is subject to
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<PAGE> 13
the interests of the Underwriters hereunder, that the arrangements made for
such custody, the appointment of the Attorneys-in-Fact and the right, power
and authority of the Attorneys-in-Fact to execute and deliver this
Agreement, to agree on the price at which the Securities (including such
Selling Securityholder's Securities) are to be sold to the Underwriters,
and to carry out the terms of this Agreement, are to that extent
irrevocable and that the obligations of such Selling Securityholder
hereunder shall not be terminated, except as provided in this Agreement or
the Custody Agreement, by any act of such Selling Securityholder, by
operation of law or otherwise, whether in the case of any individual
Selling Securityholder by the death or incapacity of such Selling
Securityholder, in the case of a trust or estate by the death of the
trustee or trustees or the executor or executors or the termination of such
trust or estate, or in the case of a corporate or partnership Selling
Securityholder by its liquidation or dissolution, or by the occurrence of
any other event. If any individual Selling Securityholder, trustee or
executor should die or become incapacitated or any such trust should be
terminated, or any corporate or partnership Selling Securityholder shall
liquidate or dissolve, or if any other event should occur, before the
delivery of such Securities hereunder, the certificates for such Securities
deposited with the Custodian shall be delivered by the Custodian in
accordance with the respective terms and conditions of this Agreement as if
such death, incapacity, termination, liquidation or dissolution or other
event had not occurred, regardless of whether or not the Custodian or the
Attorneys-in-Fact shall have received notice thereof.
(iii) Such Selling Securityholder is the lawful owner of the
Securities to be sold by the such Selling Securityholder hereunder and upon
sale and delivery of, and payment for, such Securities, as provided herein,
such Selling Securityholder will convey good and marketable title to such
Securities, free and clear of any security interests, liens, encumbrances,
equities or claims.
(iv) Such Selling Securityholder has not, directly or indirectly
(except for the sale of Securities by such Selling Securityholder under
this Agreement), (A) taken any action designed to cause or result in, or
that has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B) since the
filing of the Registration Statement (1) sold, bid for, purchased, or paid
anyone any compensation for soliciting purchases of, the Securities or (2)
paid or agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
(v) Such Selling Securityholder has not distributed and, prior to
the later of (A) the Closing Date and (B) the completion of the
distribution of the Securities, will not distribute any offering material
in connection with the offering and sale of the Securities other than the
Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus and any Integrated Prospectus or any amendment
or supplement thereto, or other materials, if any, permitted by the Act.
(vi) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of 1986,
as amended,
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<PAGE> 14
with respect to the transactions herein contemplated, such Selling
Securityholder agrees to deliver to you prior to or on the Firm Closing
Date, as hereinafter defined, a properly completed and executed United
States Treasury Department Form W-8 or W-9 (or other applicable form of
statement specified by Treasury Department regulations in lieu thereof).
(vii) Such Selling Securityholder has reviewed the Prospectus,
any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus) and the Registration Statement, and the information regarding
such Selling Securityholder set forth therein under the caption "Principal
and Selling Stockholders" is complete and accurate.
(viii) The sale by such Selling Securityholder of Securities
pursuant hereto is not prompted by any adverse information concerning the
Company that is not set forth in the Registration Statement, the Prospectus
or any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(ix) The sale of the Securities by such Selling Securityholder
pursuant to this Agreement, the compliance by such Selling Securityholder
with the other provisions of this Agreement, the Custody Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except such as have been obtained,
such as may be required under state securities or blue sky laws and, if the
registration statement filed with respect to the Securities (as amended) is
not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the
Act, or (B) conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
such Selling Securityholder is a party or by which such Selling
Securityholder or any of such Selling Securityholder's properties are
bound, or any statute or any judgment, decree, order, rule or regulation of
any court or other governmental authority or any arbitrator applicable to
such Selling Securityholder.
(x) The representations and warranties of the Company contained
in Section 2(a) of this Agreement are true and correct.
3. Purchase, Sale and Delivery of the Securities.
---------------------------------------------
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company and the Selling Securityholders agree, severally and not
jointly, to issue and sell to each of the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company and
the Selling Securityholders, at a purchase price of $____ per share, the number
of Firm Securities set forth opposite the name of such Underwriter in Schedule 1
hereto. The Company agrees to issue and sell to the Underwriters 1,445,029 Firm
Securities and each Selling Securityholder agrees to sell to the Underwriters
the number of Firm Securities set forth opposite
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<PAGE> 15
such Selling Securityholder's name on Schedule 2 hereto. One or more
certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company and the Selling
Securityholders to the Representatives for the respective accounts of the
Underwriters, against payment by or on behalf of the Underwriters of the
respective aggregate purchase prices therefor by wire transfer in same-day funds
(the "Wired Funds") to the respective accounts of the Company and the Selling
Securityholders. Such delivery of and payment for the Firm Securities shall be
made at the offices of Goodwin, Procter & Hoar LLP, Exchange Place, Boston,
Massachusetts, at 9:30 A.M., New York City time, on , 1996, or at such other
place, time or date as the Representatives, the Company and the Selling
Securityholders may agree upon or as the Representatives may determine pursuant
to Section 9 hereof, such time and date of delivery against payment being herein
referred to as the "Firm Closing Date". The Company and the Selling
Securityholders will make such certificate or certificates for the Firm
Securities available for checking and packaging by the Representatives at the
offices in New York, New York of the Company's transfer agent or registrar or of
Prudential Securities Incorporated at least 24 hours prior to the Firm Closing
Date.
(b) For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Securities as contemplated by the Prospectus,
the Company hereby grants to the several Underwriters an option to purchase,
severally and not jointly, the Option Securities. The purchase price to be paid
for any Option Securities shall be the same price per share as the price per
share for the Firm Securities set forth above in paragraph (a) of this Section
3, plus if the purchase and sale of any Option Securities takes place after the
Firm Closing Date and after the Firm Securities are trading "ex-dividend", an
amount equal to the dividend payable on such Option Securities. The option
granted hereby may be exercised as to all or any part of the Option Securities
from time to time within thirty days after the date of the Prospectus (or, if
such 30th day shall be a Saturday or Sunday or a holiday, on the next business
day thereafter when the New York Stock Exchange is open for trading). The
Underwriters shall not be under any obligation to purchase any of the Option
Securities prior to the exercise of such option. The Representatives may from
time to time exercise the option granted hereby by giving notice in writing or
by telephone (confirmed in writing) to the Company setting forth the aggregate
principal amount of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment for
such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and the
Company may agree upon or as the Representatives may determine pursuant to
Section 9 hereof, is herein called the "Option Closing Date" with respect to
such Option Securities. Upon exercise of the option as provided herein, the
Company shall become obligated to sell to each of the several Underwriters, and,
subject to the terms and conditions herein set forth, each of the Underwriters
(severally and not jointly) shall become obligated to purchase from the Company,
the same percentage of the total number of the Option Securities as to which the
several Underwriters are then exercising the option as such Underwriter is
obligated to purchase of the aggregate number of Firm Securities,
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<PAGE> 16
as adjusted by the Representatives in such manner as they deem advisable to
avoid fractional shares. If the option is exercised as to all or any portion of
the Option Securities, one or more certificates in definitive form for such
Option Securities, and payment therefor, shall be delivered on the related
Option Closing Date in the manner, and upon the terms and conditions, set forth
in paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company and the Selling Securityholders hereby acknowledge that the
wire transfer by or on behalf of the Underwriters of the purchase price for any
Securities does not constitute closing of a purchase and sale of the Securities.
Only execution and delivery of a receipt for Securities by the Underwriters
indicates completion of the closing of a purchase of the Securities from the
Company or the Selling Securityholders, as the case may be. Furthermore, in the
event that the Underwriters wire funds to the Company or any Selling
Securityholder prior to the completion of the closing of a purchase of
Securities, the Company and the Selling Securityholders hereby acknowledge that
until the Underwriters execute and deliver a receipt for the Securities, by
facsimile or otherwise, the Company and any Selling Securityholder, as the case
may be, will not be entitled to the wired funds and shall return the wired funds
to the Underwriters as soon as practicable (by wire transfer of same-day funds)
upon demand. In the event that the closing of a purchase of Securities is not
completed and the wired funds are not returned by the Company and any Selling
Securityholder, as the case may be, to the Underwriters on the same day the
wired funds were received by the Company or such Selling Securityholder, the
Company and any Selling Securityholder, as the case may be, agree to pay to the
Underwriters in respect of each day the wired funds are not returned by it, in
same-day funds, interest on the amount of such wired funds in an amount
representing the Underwriters' cost of financing as reasonably determined by
Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as one of the
Representatives, may (but shall not be obligated to) make payment on behalf of
any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such Underwriter
or Underwriters from any of its or their obligations hereunder.
4. OFFERING BY THE UNDERWRITERS. Upon your authorization of the release of
the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. COVENANTS OF THE COMPANY AND THE SELLING SECURITYHOLDERS.
(a) The Company covenants and agrees with each of the Underwriters that:
(i) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and
any amendments thereto to become effective as promptly as possible. If
required, the Company will file each of the Prospectus and any Integrated
Prospectus and any amendment or supplement thereto or any Term Sheet that
constitutes a part thereof with
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<PAGE> 17
the Commission in the manner and within the time period required by Rule
434 and 424(b) under the Act. During any time when a prospectus relating to
the Securities is required to be delivered under the Act, the Company (A)
will comply with all requirements imposed upon it by the Act, the Exchange
Act and the Trust Indenture Act and the respective rules and regulations of
the Commission thereunder to the extent necessary to permit the continuance
of sales of or dealings in the Securities in accordance with the provisions
hereof and of each of the Prospectus and any Integrated Prospectus, as then
amended or supplemented, and (B) will not file with the Commission the
prospectus or the amendment referred to in the third sentence of Section
2(a) hereof, any amendment or supplement to such prospectus or any
amendment to the Registration Statement or any Rule 462(b) Registration
Statement of which the Representatives shall not previously have been
advised and furnished with a copy for a reasonable period of time prior to
the proposed filing and as to which filing the Representatives shall not
have given their consent. The Company will prepare and file with the
Commission, in accordance with the rules and regulations of the Commission,
promptly upon reasonable request by the Representatives or counsel for the
Underwriters, any amendments to the Registration Statement or amendments or
supplements to the Prospectus and any Integrated Prospectus that may be
necessary or advisable in connection with the distribution of the
Securities by the several Underwriters, and will use its best efforts to
cause any such amendment to the Registration Statement to be declared
effective by the Commission as promptly as possible. The Company will
advise the Representatives, promptly after receiving notice thereof, of the
time when the Registration Statement or any amendment thereto has been
filed or declared effective or the Prospectus and any Integrated Prospectus
or any amendment or supplement thereto has been filed and will provide
evidence satisfactory to the Representatives of each such filing or
effectiveness.
(ii) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (A) the issuance by the
Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
post-effective amendment thereto or any order directed at any document
incorporated by reference in the Registration Statement or if the
Prospectus and any required Integrated Prospectus are or any amendment or
supplement thereto or any order preventing or suspending the use of any
Preliminary Prospectus with the Prospectus and any Integrated Prospectus or
any amendment or supplement thereto, (B) the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
(C) the institution, threatening or contemplation of any proceeding for any
such purpose or (D) any request made by the Commission for amending the
Original Registration Statement or any Rule 462(b) Registration Statement,
for amending or supplementing any Preliminary Prospectus, the Prospectus
and any Integrated Prospectus or for additional information. The Company
will use its best efforts to prevent the issuance of any such stop order
and, if any such stop order is issued, to obtain the withdrawal thereof as
promptly as possible.
(iii) The Company will arrange for the qualification of the Securities
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as
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<PAGE> 18
may be necessary to complete the distribution of the Securities; provided,
however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to execute a general consent to service
of process in any jurisdiction.
(iv) If, at any time prior to the later of (A) the final date when a
prospectus relating to the Securities is required to be delivered under the
Act or (B) the Option Closing Date, any event occurs as a result of which
the Prospectus or any Integrated Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if for any other reason it is necessary at any time to amend
or supplement each of the Prospectus and any Integrated Prospectus to
comply with the Act, the Exchange Act or the respective rules or
regulations of the Commission thereunder, the Company will promptly notify
the Representatives thereof and, subject to Section 5(a) hereof, will
prepare and file with the Commission, at the Company's expense, an
amendment to the Registration Statement or an amendment or supplement to
the Prospectus or any Integrated Prospectus that corrects such statement or
omission or effects such compliance.
(v) The Company will, without charge, provide (A) to the
Representatives and to counsel for the Underwriters a signed copy of the
registration statement originally filed with respect to the Securities and
each amendment thereto (in each case including exhibits thereto) and any
Rule 462(b) Registration Statement, certified by the Secretary or an
Assistant Secretary of the Company to be true and complete copies thereof
as filed with the Commission by electronic transmission, (B) to each other
Underwriter, a conformed copy of such registration statement and any Rule
462(b) Registration Statement and each amendment thereto (in each case
without exhibits thereto) and (C) so long as a prospectus relating to the
Securities is required to be delivered under the Act, as many copies of
each Preliminary Prospectus, the Prospectus or any Integrated Prospectus or
any amendment or supplement thereto as the Representatives may reasonably
request; without limiting the application of clause (C) of this sentence,
the Company, not later than (1) 6:00 P.M., New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 10:00 A.M., New York City time on such date or (2)
2:00 P.M., New York City time, on the business day following the date of
determination of the public offering price, if such determination occurred
after 10:00 A.M., New York City time, on such date, will deliver to the
Underwriters, without charge, as many copies of the Prospectus and any
amendment or supplement thereto as the Representatives may reasonably
request for purposes of confirming orders that are expected to settle on
the Firm Closing Date.
(vi) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives a consolidated
earnings statement of the Company and its subsidiaries that satisfies the
provisions of Section 11(a) of the Act and Rule 158 thereunder. It is
understood that the Company's timely filing of its next Form 10-Q or 10-K
report containing the information required by such provisions shall
constitute compliance with this paragraph (vi).
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<PAGE> 19
(vii) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus or any
Integrated Prospectus.
(viii) The Company will not, directly or indirectly, without the prior
written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, grant any
option to purchase or otherwise sell or dispose of (or announce any offer,
sale, offer of sale, contract of sale, grant of any option to purchase or
other sale or disposition) any shares of Common Stock or other capital
stock of the Company or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock or other capital stock of the
Company, for a period of 120 days after the date hereof, except pursuant to
this Agreement and except for grants of employee stock options under the
Company's 1992 Stock Incentive Plan and sales to employees under the
Company's Employee Stock Purchase Plan.
(ix) The Company will not, directly or indirectly, (A) take any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities or (B) (1) sell, bid for, purchase, or pay anyone any
compensation for soliciting purchases of, the Securities or (2) pay or
agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Company (except for the sale of
Securities by the Selling Securityholders under this Agreement).
(x) The Company will obtain the agreements described in Section 7(f)
hereof prior to the Firm Closing Date.
(xi) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing Date,
any rumor, publication or event relating to or affecting the Company shall
occur as a result of which in your opinion the market price of the Common
Stock has been or is likely to be materially affected (regardless of
whether such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus and any Integrated Prospectus), the Company
will, after written notice from you advising the Company to the effect set
forth above, forthwith prepare, consult with you concerning the substance
of, and disseminate a press release or other public statement, reasonably
satisfactory to you, responding to or commenting on such rumor, publication
or event.
(xii) If the Company elects to rely on Rule 462(b), the Company shall
both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with
Rule 111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern
time on the date of this Agreement and (ii) the time confirmations are sent
or given, as specified by Rule 462(b)(2).
(xiii) The Company will cause the Securities to be duly included for
quotation on the Nasdaq Stock Market's National Market (the "Nasdaq
National Market")
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<PAGE> 20
prior to the Firm Closing Date. The Company will use its best efforts to
ensure that the Securities remain included for quotation on the Nasdaq
National Market following the Firm Closing Date.
(b) Each of the Selling Securityholders covenants and agrees with each of
the Underwriters that:
(i) Such Selling Securityholder will not, directly or indirectly,
without the prior written consent of Prudential Securities Incorporated, on
behalf of the Underwriters, offer, sell, offer to sell, contract to sell,
pledge, grant any option to purchase or otherwise sell or dispose of (or
announce any offer, sale, offer of sale, contract of sale, pledge, grant of
any option to purchase or other sale or disposition) any shares of Common
Stock or other capital stock of the Company legally or beneficially owned
by such Selling Securityholder or any securities convertible into, or
exchangeable or exercisable for, any shares of Common Stock or other
capital stock of the Company, for a period of 120 days after the date
hereof.
(ii) Such Selling Securityholder will not, directly or indirectly, (A)
take any action designed to cause or result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities or (B) (1) sell, bid for, purchase, or pay
anyone any compensation for soliciting purchases of, the Securities or (2)
pay or agree to pay to any person any compensation for soliciting another
to purchase any other securities of the Company (except for the sale of
Securities by such Selling Securityholder under this Agreement).
6. EXPENSES. The Company will pay all costs and expenses incident to the
performance of the obligations of the Company and the Selling Securityholders
under this Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 11 hereof,
including all costs and expenses incident to (i) the printing or other
production of documents with respect to the transactions, including any costs of
printing the registration statement originally filed with respect to the
Securities and any amendment thereto, any Rule 462(b) Registration Statement,
any Preliminary Prospectus, the Prospectus and any Integrated Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel,
accountants and any other experts or advisors retained by the Company and the
Selling Securityholders, (iv) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Securities, including transfer
agent's and registrar's fees, (v) the qualification of the Securities under
state securities and blue sky laws, including filing fees and fees and
disbursements of counsel for the Underwriters relating thereto, (vi) the filing
fees of the Commission and the National Association of Securities Dealers, Inc.
relating to the Securities, (vii) the quotation of the Securities on the Nasdaq
National Market, (viii) any meetings with prospective investors in the
Securities (other than as shall have been specifically approved by the
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<PAGE> 21
Representatives to be paid for by the Underwriters) and (ix) all advertising
relating to the offering of the Securities that is ordered or approved by the
Company (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters). If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because this Agreement is terminated pursuant to Section 11 hereof or because of
any failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder other than by reason of a default by any of the Underwriters, the
Company will reimburse and indemnify the Underwriters severally upon demand for
all of their out-of-pocket expenses (including counsel fees and disbursements)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. The Company shall not in any event be liable to any
of the Underwriters for the loss of anticipated profits from the transactions
covered by this Agreement.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Selling Securityholders
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Securityholders of their respective
covenants and agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto filed
prior to the Firm Closing Date has not been declared effective as of the time of
execution hereof, the Original Registration Statement or such amendment and, if
the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have been declared effective not later than the earlier of (i)
11:00 A.M., New York City time, on the date on which the amendment to the
registration statement originally filed with respect to the Securities or to the
Registration Statement, as the case may be, containing information regarding the
initial public offering price of the Securities has been filed with the
Commission and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original Registration Statement, or such
later time and date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part thereof and
any Integrated Prospectus and any amendment or supplement thereto shall have
been filed with the Commission in the manner and within the time period required
by Rule 434 and 424(b) under the Act; no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto and no
order directed at any document incorporated by reference in the Registration
Statement, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto shall have been issued and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the Company or
the Representatives, shall be contemplated by the Commission; and the Company
shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement, the Prospectus or any
Integrated Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Goodwin, Procter & Hoar LLP, counsel for the Company and the
Selling Securityholders, to the effect that:
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<PAGE> 22
(i) the Company and each of its subsidiaries listed in Schedule 3
hereto have been duly incorporated and are validly existing as corporations
in good standing under the laws of their respective jurisdictions of
incorporation and are duly qualified to transact business as foreign
corporations and are in good standing under the laws of all other
jurisdictions where the ownership or leasing of their respective properties
or the conduct of their respective businesses requires such qualification,
except where the failure to be so qualified does not amount to a material
liability or disability to the Company and the subsidiaries, taken as a
whole;
(ii) the Company and each of the subsidiaries have corporate power to
own or lease their respective properties and conduct their respective
businesses as described in the Registration Statement, the Prospectus and
any Integrated Prospectus, and the Company has corporate power to enter
into this Agreement and to carry out all the terms and provisions hereof
and thereof to be carried out by it;
(iii) the issued shares of capital stock of each of the subsidiaries
have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company free and clear of
any perfected security interests or, to the best knowledge of such counsel,
any other security interests, liens, encumbrances, equities or claims;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in each of the Prospectus and any Integrated
Prospectus; all of the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and
nonassessable, have been issued in compliance with all applicable federal
and state securities laws and were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase
securities; the Firm Securities have been duly authorized by all necessary
corporate action of the Company and, when issued and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be validly issued,
fully paid and nonassessable; the Securities have been duly included for
trading on the Nasdaq National Market; no holders of outstanding shares of
capital stock of the Company are entitled as such to any preemptive or
other rights to subscribe for any of the Securities; and no holders of
securities of the Company are entitled to have such securities registered
under the Registration Statement whose securities are not so registered
under the Registration Statement;
(v) the statements set forth under the heading "Description of Capital
Stock" in the Prospectus or any Integrated Prospectus, insofar as such
statements purport to summarize certain provisions of the capital stock of
the Company, provide a fair summary of such provisions; and the statements
set forth under the heading "Legal Proceedings" in each of the Prospectus
or any Integrated Prospectus, and the statements set forth under the
heading "Legal Proceedings" in the Company's Annual Report on Form 10-K/A
for the fiscal year ended December 31, 1995, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, provide a fair summary of such legal matters,
documents and proceedings,
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<PAGE> 23
(vi) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the Company;
(vii) no legal or governmental proceedings are known by such counsel
to be pending to which the Company or any of its subsidiaries is a party or
to which the property of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement, the
Prospectus or any Integrated Prospectus and are not described therein, and,
to the knowledge of such counsel, no such proceedings have been threatened
against the Company or any of its subsidiaries or with respect to any of
their respective properties; and to the knowledge of such counsel no
contract or other document is required to be described in the Registration
Statement, the Prospectus or any Integrated Prospectus or to be filed as an
exhibit to the Registration Statement that is not described therein or
filed as required;
(viii) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except such as have been obtained
and such as may be required under state securities or blue sky laws, or (B)
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, lease or other agreement or instrument, known to such counsel and
which is material to the Company, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or any of their respective properties are bound, or the charter documents
or by-laws of the Company or any of its subsidiaries, or any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to the Company or any of its subsidiaries;
(ix) the Registration Statement is effective under the Act; any
required filing of the Prospectus, or any Term Sheet that constitutes a
part thereof and any Integrated Prospectus pursuant to Rules 434 and 424(b)
has been made in the manner and within the time period required by Rules
434 and 424(b); and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no order
directed at any document incorporated by reference in the Registration
Statement, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto has been issued, and no proceedings for that purpose
have been instituted or threatened or, to the best knowledge of such
counsel, are contemplated by the Commission; and
(x) the Registration Statement originally filed with respect to the
Securities and each amendment thereto and any Rule 462(b) Registration
Statement, the Prospectus and any Integrated Prospectus (in each case,
including the documents incorporated by reference therein but not including
the financial statements and other financial information contained therein,
as to which such counsel need express no opinion)
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<PAGE> 24
comply as to form in all material respects with the applicable requirements
of the Act, the Exchange Act and the respective rules and regulations of
the Commission thereunder.
(xi) if the Company elects to rely on Rule 434, the Prospectus is not
"materially different", as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time of its
effectiveness or any effective post-effective amendment thereto (including
such information that is permitted to be omitted pursuant to Rule 430A).
(xii) assuming legal capacity, each Selling Securityholder has full
power (corporate or otherwise) to enter into this Agreement, the Custody
Agreement and the Power-of-Attorney and to sell, transfer and deliver the
Securities being sold by such Selling Securityholder hereunder in the
manner provided in this Agreement and to perform its obligations under the
Custody Agreement; this Agreement, the Custody Agreement and the
Power-of-Attorney have been duly executed and delivered by each Selling
Securityholder; assuming due authorization, execution and delivery by the
Custodian, the Custody Agreement and the Power-of-Attorney are the legal,
valid, binding and enforceable instruments of the each Selling
Securityholder, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(xiii) assuming that the Underwriters are "bona fide purchasers" under
applicable provisions of the Uniform Commercial Code, the delivery by each
Selling Securityholder to the several Underwriters of certificates for the
Securities being sold hereunder by such Selling Securityholder against
payment therefor as provided herein, will convey good and marketable title
to such Securities to the several Underwriters, free and clear of all
security interests, liens, encumbrances, equities, claims or other defects,
other than any such security interests, liens, encumbrances, equities,
claims or other defects created by the Underwriters; and
(xiv) the sale of the Securities to the Underwriters by each Selling
Securityholder pursuant to this Agreement, the compliance by each Selling
Securityholder with the other provisions of this Agreement, the Custody
Agreement and the consummation of the other transactions herein
contemplated do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except
such as have been obtained and such as may be required under state
securities or blue sky laws, or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default
under any indenture, mortgage, deed of trust, lease or other agreement or
instrument to which any Selling Securityholder is a party or by which any
Selling Securityholder or any of their respective properties are bound, so
far as is known to such counsel, or any statute, judgment, decree, order,
rule or regulation of any court or other governmental authority or any
arbitrator applicable to any Selling Securityholder.
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<PAGE> 25
Such counsel shall also state that they have no reason to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus or any Integrated Prospectus, as of their respective dates or the
date of such opinion, included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials.
References to the Registration Statement, the Prospectus and any Integrated
Prospectus in this paragraph (b) shall include any amendment or supplement
thereto at the date of such opinion.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Gibson, Dunn & Crutcher LLP, counsel for the Underwriters, with
respect to the issuance and sale of the Firm Securities, the Registration
Statement, the Prospectus and any Integrated Prospectus, and such other related
matters as the Representatives may reasonably require, and the Company and the
Selling Securityholders shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Representatives shall have received from Deloitte & Touche LLP a
letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company and
its consolidated subsidiaries within the meaning of the Act, the Exchange
Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited supplemental consolidated financial
statements and schedules examined by them and included in the Registration
Statement, the Prospectus and any Integrated Prospectus comply in form in
all material respects with the applicable accounting requirements of the
Act, the Exchange Act and the related published rules and regulations
thereunder;
(iii) on the basis of a reading of the latest available interim
unaudited supplemental consolidated condensed financial statements of the
Company and its consolidated subsidiaries, carrying out certain specified
procedures (which do not constitute an examination made in accordance with
generally accepted auditing standards) that would not necessarily reveal
matters of significance with respect to the comments set forth in this
paragraph (iii), a reading of the minute books of the shareholders, the
board of directors and any committees thereof of the Company and each of
its consolidated subsidiaries, and inquiries of certain officials of the
Company and its consolidated
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<PAGE> 26
subsidiaries who have responsibility for financial and accounting matters,
nothing came to their attention that caused them to believe that:
(A) the unaudited supplemental consolidated condensed financial
statements of the Company and its consolidated subsidiaries included
in the Registration Statement, the Prospectus and any Integrated
Prospectus do not comply in form in all material respects with the
applicable accounting requirements of the Act, the Exchange Act and
the related published rules and regulations thereunder, or are not in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited supplemental
consolidated financial statements included in the Registration
Statement, the Prospectus and any Integrated Prospectus, or
(B) at a specific date not more than five business days prior to
the date of such letter, there were any changes in the capital stock
or long-term debt of the Company and its consolidated subsidiaries or
any decreases in net current assets or stockholders' equity of the
Company and its consolidated subsidiaries, in each case compared with
amounts shown on the unaudited March 31, 1996 supplemental
consolidated balance sheet included in the Registration Statement, the
Prospectus and any Integrated Prospectus, or for the period from April
1, 1996 to such specified date there were any decreases, as compared
with the corresponding period beginning April 1, 1995, in sales, net
revenues, net income before income taxes or total or per share amounts
of net income of the Company and its consolidated subsidiaries, except
in all instances for changes, decreases or increases set forth in such
letter; and
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting records
of the Company and its consolidated subsidiaries and are included in the
Registration Statement, the Prospectus and any Integrated Prospectus, in
Exhibit II to the Registration Statement and in the Exchange Act reports
incorporated by reference in the Registration Statement, the Prospectus and
any Integrated Prospectus, and have compared such amounts, percentages and
financial information with such records of the Company and its consolidated
subsidiaries and with information derived from such records and have found
them to be in agreement, excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any such changes,
decreases or increases, it shall be a further condition to the obligations of
the Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
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<PAGE> 27
References to the Registration Statement, the Prospectus and any Integrated
Prospectus in this paragraph (d) with respect to either letter referred to above
shall include any amendment or supplement thereto at the date of such letter.
(e) The Representatives shall have received a certificate, dated the Firm
Closing Date, of Eric R. Giler and Robert C. Leahy in their capacities as the
principal executive officer and the principal financial or accounting officer,
respectively, of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing
Date; the Registration Statement, as amended as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading,
the Prospectus and any Integrated Prospectus, as amended or supplemented as
of the Firm Closing Date, do not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company has performed all covenants and
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto and no order directed at
any document incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the
best of the Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information is
given in the Registration Statement, the Prospectus and any Integrated
Prospectus, neither the Company nor any of its subsidiaries has sustained
any material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material adverse
change, or any development involving a prospective material adverse change,
in the condition (financial or otherwise), management, business prospects,
net worth or results of operations of the Company or any of its
subsidiaries, except in each case as described in or contemplated by the
Prospectus or any Integrated Prospectus.
(f) The Representatives shall have received a certificate, dated the
Closing Date, from the Attorney-in-Fact on behalf of each Selling
Securityholder, to the effect that:
(i) the representations and warranties of such Selling Securityholder
in this Agreement are true and correct as if made on and as of the Closing
Date;
(ii) such Selling Securityholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior to the
Closing Date; and
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<PAGE> 28
(iii) such Selling Securityholder has reviewed the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus is not in existence, the most recent Preliminary Prospectus) and
the Registration Statement, and the information regarding such Selling
Securityholder set forth therein under the caption "Principal and Selling
Stockholders" is complete and accurate.
(g) The Representatives shall have received from each person who is a
director or officer of the Company an agreement to the effect that such person
will not, directly or indirectly, without the prior written consent of
Prudential Securities Incorporated, on behalf of the Underwriters, offer, sell,
offer to sell, contract to sell, grant any option to purchase or otherwise sell
or dispose (or announce any offer, sale, offer of sale, contract of sale grant
of an option to purchase or other sale or disposition) of any shares of Common
Stock or any securities convertible into, or exchangeable or exercisable for,
shares of Common Stock for a period of 120 days after the date of this
Agreement.
(h) On or before the Firm Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
(i) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading on the Nasdaq National Market.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each of the Selling Securityholders, jointly and
severally (subject to the provisos in this Section 8(a) and in Sections 8(e),
8(f) and 8(g) hereof), agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
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<PAGE> 29
(i) any untrue statement or alleged untrue statement made by the
Company or any of the Selling Securityholders in either of Section 2(a) or
Section 2(b) of this Agreement,
(ii) any untrue statement or alleged untrue statement of any material
fact contained in (A) the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any Integrated Prospectus or
any amendment or supplement thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the Company
or any Selling Securityholder or based upon written information furnished
by or on behalf of the Company or any Selling Securityholder filed in any
jurisdiction in order to qualify the Securities under the securities or
blue sky laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any Integrated Prospectus or any amendment or supplement
thereto, or any Application a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
(iv) any untrue statement or alleged untrue statement of any material
fact contained in any audio or visual materials used in connection with the
marketing of the Securities, including without limitation, slides, videos,
films, tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company and the Selling
Securityholders will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto, or any Application in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein. This indemnity agreement will be
in addition to any liability which the Company and the Selling Securityholders
may otherwise have. Neither the Company nor any Selling Securityholder will,
without the prior written consent of the Underwriter or Underwriters purchasing,
in the aggregate, more than fifty percent (50%) of the Securities, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not any such Underwriter or any person who controls
any such Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an unconditional release
of all of the Underwriters and such controlling persons from all liability
arising out of such claim, action, suit or proceeding.
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<PAGE> 30
(b) Each Underwriter will, severally and not jointly, indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement, the Selling Securityholders and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to which
the Company, the Selling Securityholders or any such director, officer or
controlling person of the Company may become subject under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any Integrated Prospectus or any amendment or supplement thereto,
or any Application or (ii) the omission or the alleged omission to state therein
a material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus or any amendment or supplement thereto, or any Application or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein; and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by the Company, the
Selling Securityholders or any such director, officer or controlling person of
the Company in connection with investigating or defending any such loss, claim,
damage, liability or any action in respect thereof. This indemnity agreement
will be in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent that
the indemnifying party is prejudiced as a result thereof. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; PROVIDED, HOWEVER,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i)
30
<PAGE> 31
the indemnified party shall have employed separate counsel in accordance with
the proviso to the next preceding sentence (it being understood, however, that
in connection with such action the indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to local counsel) in
any one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel reasonably satisfactory to the indemnified party (it being
understood that Goodwin, Procter & Hoar LLP shall be deemed reasonably
satisfactory as counsel to be retained by the Company and/or the Selling
Securityholders in any case) or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 8 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Securities or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Securityholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company and the Selling Securityholders bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault of
the parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Securityholders or the Underwriters, the parties' relative
intents, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Company, the Selling Securityholders and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (d). Notwithstanding any other provision of
this paragraph (d), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the total public offering price of the
Securities purchased by such Underwriter under this Agreement,
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<PAGE> 32
less the aggregate amount of any damages that such Underwriter has otherwise
been required to pay in respect of the same or any substantially similar claim,
and 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 hereunder are several in proportion to their
respective underwriting obligations and not joint, and contributions among
Underwriters shall be governed by the provisions of the Prudential Securities
Incorporated Master Agreement Among Underwriters. For purposes of this paragraph
(d), each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
(e) A Selling Securityholder's liability for any claim under this Agreement
(except to the extent that such claim is based upon an untrue statement or
alleged untrue statement made by any Selling Securityholder in any of Sections
2(b)(i) through Sections 2(b)(ix), for which this limitation shall not apply)
shall not exceed such Selling Securityholder's "pro rata share" of the total
amount of the Underwriters' losses, claims, damages or liabilities and related
expenses including attorney's fees for which the Company and the Selling
Securityholders are liable under this Agreement, with respect to the facts,
circumstances, transaction or occurrence giving rise to such claim; with "pro
rata share" defined as that fraction which is equal to the number of Securities
sold by such Selling Securityholder in the offering divided by the aggregate
number of Securities sold by the Company and all Selling Securityholders in the
offering;
(f) No Underwriter or controlling person may obtain any remedies from any
Selling Securityholder for any specific claim under this Agreement (except for
any claim based upon an untrue statement or alleged untrue statement made by any
Selling Securityholder in any of Sections 2(b)(i) through Sections 2(b)(ix) to
which this restriction shall not apply), until such Underwriter or controlling
person has first used its best efforts to pursue and exhaust all remedies
(including the enforcement and collection of judgments or claims against the
Company) it may have against the Company with respect to such specific claim.
Without limiting the generality of the foregoing, an Underwriter or controlling
person shall be deemed to have used its best efforts to pursue and exhaust all
remedies it may have against the Company with respect to such specific claim,
and may pursue any remedies it may have against the Selling Securityholder, if
(A) such Underwriter or controlling person is in the process of pursuing
remedies against the Company and any of the following events occurs, or,
immediately prior to the time at which such Underwriter or controlling person
commences the process of pursuing remedies against the Company, any of the
following events has occurred and is continuing: (1) the Company files a
petition, answer or any pleading seeking or acquiescing in any reorganization,
liquidation or other relief under chapter 7 or 11 of the Bankruptcy Code; (2)
the Company seeks or acquiesces in the appointment of a trustee (other than a
trustee appointed solely for the purposes of facilitating the issuance of any
debt securities of the Company), receiver or liquidator of all or part of its
assets; or (3) the Company makes a general assignment for the benefit of its
creditors, (B) a court of competent jurisdiction: (1) appoints a trustee,
receiver or liquidator of all or part of the Company's assets; or (2) determines
in any action, suit or proceeding that the Company is insolvent (in the
accounting,
32
<PAGE> 33
bankruptcy, equity or legal definitions), or (C) a court or arbitration panel of
competent jurisdiction enters an order in any such action, suit or proceeding by
such Underwriter or controlling person against the Company that is adverse to
such Underwriter or controlling person. Notwithstanding the foregoing, if, in
the reasonable judgment of any Underwriter or controlling person, the applicable
statute of limitations for any potential action, suit or proceeding by such
Underwriter or controlling person for indemnification against the Selling
Securityholder will expire, such Underwriter or controlling person may name the
Selling Securityholder in any action, suit or proceeding to which the Company is
also a party solely for purposes of preserving any rights such Underwriter or
controlling person may have to seek indemnification from the Selling
Securityholder after having used its best efforts to pursue and exhaust all
remedies it may have against the Company.
(g) The aggregate liability of each Selling Securityholder under all
provisions of this Agreement shall not exceed the amount equal to the aggregate
proceeds received by such Selling Securityholder for the Securities sold by such
Selling Securityholder to the Underwriters.
9. DEFAULT OF UNDERWRITERS. If one or more Underwriters default in their
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof. In the event of any default by one or more Underwriters as
described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 3 hereof for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. SURVIVAL. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers, the
Selling Securityholders and the several Underwriters set forth in this Agreement
or made by or on behalf
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<PAGE> 34
of them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the Company,
any of its officers or directors, any Underwriter or any controlling person
referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
11. TERMINATION.
(a) This Agreement may be terminated with respect to the Firm Securities or
any Option Securities in the sole discretion of the Representatives by notice to
the Company given prior to the Firm Closing Date or the related Option Closing
Date, respectively, in the event that the Company or any Selling Securityholder
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its or their respective part to be performed or satisfied
hereunder at or prior thereto or, if at or prior to the Firm Closing Date or
such Option Closing Date, respectively,
(i) the Company or any of its subsidiaries shall have, in the sole
judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any material adverse change, or any
development involving a prospective material adverse change (including
without limitation a change in management or control of the Company), in
the condition (financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries, except in each
case as described in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto);
(ii) trading in the Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities generally
on the New York Stock Exchange or the Nasdaq National Market shall have
been suspended or minimum or maximum prices shall have been established on
either such exchange or market system;
(iii) a banking moratorium shall have been declared by Massachusetts,
New York or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or material
adverse change in general economic, political or financial conditions
having an effect on the U. S. financial markets that, in the sole judgment
of the Representatives, makes it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by
the Registration Statement, as amended as of the date hereof.
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<PAGE> 35
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Section
10 hereof.
12. INFORMATION SUPPLIED BY UNDERWRITERS. The statements set forth in (i)
the last paragraph on the front cover page, (ii) under the heading
"Underwriting" in any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus and (iii) on page 2 in any Preliminary Prospectus, the Prospectus or
any Integrated Prospectus pertaining to stabilization (to the extent such
statements relate to the Underwriters) constitute the only information furnished
by any Underwriter through the Representatives to the Company for the purposes
of Sections 2(a)(i) and 8 hereof. The Underwriters confirm that such statements
(to such extent) are correct.
13. NOTICES. All communications hereunder shall be in writing and, if sent
to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, One New York Plaza, New York, New York 10292, Attention: Equity
Transactions Group; and if sent to the Company, shall be delivered or sent by
mail, telex or facsimile transmission and confirmed in writing to the Company at
410 First Avenue, Needham, Massachusetts 02194, Attention: Chief Executive
Officer; and if sent to any Selling Securityholder shall be delivered or sent by
mail, telex or facsimile transmission and confirmed in writing to the Selling
Securityholders at c/o _________________.
14. SUCCESSORS. This Agreement shall inure to the benefit of and shall be
binding upon the several Underwriters, the Company, the Selling Securityholders
and their respective successors and legal representatives, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that (i) the indemnities of the Company and certain Selling Securityholders
contained in Section 8 of this Agreement shall also be for the benefit of any
person or persons who control any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act and (ii) the indemnities of the
Underwriters contained in Section 8 of this Agreement shall also be for the
benefit of the directors of the Company, the officers of the Company who have
signed the Registration Statement and any person or persons who control the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Securities from any Underwriter shall be deemed a
successor because of such purchase.
15. APPLICABLE LAW. The validity and interpretation of this Agreement, and
the terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
16. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, the Company and each Selling
Securityholder accept for itself and in connection with their respective
properties, generally and unconditionally, the nonexclusive jurisdiction of the
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<PAGE> 36
aforesaid courts and waives any defense of forum non conveniens and irrevocably
agree to be bound by any judgment rendered thereby in connection with this
Agreement. The Company designates and appoints _____________, and the Selling
Securityholders designate and appoint _____________ and such other persons as
may hereafter be selected by the Company or any Selling Securityholder
irrevocably agreeing in writing to so serve, as their respective agents to
receive on their behalf service of all process in any such proceedings in any
such court, such service being hereby acknowledged by the Company and the
Selling Securityholders to be effective and binding service in every respect. A
copy of any such process so served shall be mailed by registered mail to Company
and/or the Selling Securityholders, as applicable, at their respective addresses
provided in Section 13 hereof; PROVIDED, HOWEVER, that, unless otherwise
provided by applicable law, any failure to mail such copy shall not affect the
validity of service of such process. If any agent appointed by the Company or
the Selling Securityholders refuses to accept service, the Company and the
Selling Securityholders hereby agree that service of process sufficient for
personal jurisdiction in any action against the Company and any such Selling
Securityholder in the State of New York may be made by registered or certified
mail, return receipt requested, to the Company and/or any such Selling
Securityholder, as applicable, at their respective addresses provided in Section
13 hereof, and the Company and the Selling Securityholder hereby acknowledge
that such service shall be effective and binding in every respect. Nothing
herein shall affect the right to serve process in any other manner permitted by
law or shall limit the right of any Underwriter to bring proceedings against the
Company or the Selling Securityholders in the courts of any other jurisdiction.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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<PAGE> 37
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company, the Selling
Securityholders and each of the several Underwriters.
Very truly yours,
BROOKTROUT TECHNOLOGY, INC.
By _____________________________________
Eric R. Giler
President and Chief Executive Officer
SELLING SECURITYHOLDERS:
*
-----------------------------------
David L. Chapman
*
-----------------------------------
David W. Duehren
MURPHY/DUEHREN 1996 CHARITABLE
REMAINDER TRUST
By: *
--------------------------------
_________________, Trustee
*
-----------------------------------
Beverly Fox
*
-----------------------------------
Andrew Fox
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<PAGE> 38
*
-----------------------------------
Robert U. Friedman
*
-----------------------------------
Eric R. Giler
*
-----------------------------------
Patrick T. Hynes
*
-----------------------------------
Stephen A. Ide
*
-----------------------------------
Robert C. Leahy
*
-----------------------------------
David B. Lowe
*
-----------------------------------
R. Andrew O'Brien
*
-----------------------------------
Jonathan J. Sirota
*
-----------------------------------
W. Brooke Tunstall
*By:_____________________________
__________, Attorney-in-Fact
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<PAGE> 39
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
TUCKER ANTHONY INCORPORATED
By: PRUDENTIAL SECURITIES
INCORPORATED
By: __________________________
Jean-Claude Canfin
Director
For itself and on behalf of the Representatives.
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SCHEDULE 1
UNDERWRITERS
Number of Firm
Underwriter Securities to be Purchased
- ----------- --------------------------
Prudential Securities Incorporated..........
Smith Barney Inc............................
Tucker Anthony Incorporated.................
Total....................................... 2,250,000
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SCHEDULE 2
SELLING SECURITYHOLDERS
Number of Firm
Selling Securityholders Securities to be Sold
- ----------------------- ---------------------
David L. Chapman............................... 7,500
David W. Duehren............................... 94,500
Murphy/Duehren 1996 Charitable Remainder
Trust....................................... 18,000
Beverly Fox.................................... 122,279
Andrew Fox..................................... 122,279
Robert U. Friedman............................. 104,810
Eric R. Giler.................................. 75,000
Patrick T. Hynes............................... 75,000
Stephen A. Ide................................. 21,103
Robert C. Leahy................................ 52,500
David B. Lowe.................................. 3,000
R. Andrew O'Brien.............................. 45,000
Jonathan J. Sirota............................. 49,500
W. Brooke Tunstall............................. 14,500
-------
Total..................................... 804,971
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SCHEDULE 3
SUBSIDIARIES
JURISDICTION OF
SUBSIDIARY INCORPORATION
- ---------- -------------
Technically Speaking, Inc Massachusetts
Brooktrout Networks Group, Inc. Massachusetts
Brooktrout Securities Corporation Massachusetts
Brooktrout Technology (Europe) Limited (U.K.)
Brooktrout Technology Europe, Ltd. Massachusetts
42
<PAGE> 1
EXHIBIT 5.1
July 9, 1996
Brooktrout Technology, Inc.
410 First Avenue
Needham, MA 02194
Ladies and Gentlemen:
Re: Registration Statement on Form S-3
----------------------------------
This opinion is delivered in our capacity as counsel to Brooktrout
Technology, Inc. (the "Company") in connection with the preparation and filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, of Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement") relating to 2,250,000 shares of Common Stock, par
value $.01 per share (the "Registered Shares"), including 337,500 shares which
the underwriters have an option to purchase solely for the purpose of covering
over-allotments. Of the 2,250,000 Registered Shares, 1,445,029 are to be sold
by the Company (the "Primary Shares"), 804,971 are to be sold by certain Selling
Stockholders (the "Selling Stockholder Shares") and 337,500 may be sold by the
Company pursuant to the over-allotment option (collectively with the Primary
Shares, the "Company Shares") to underwriters (the "Underwriters") of which
Prudential Securities Incorporated, Smith Barney Inc. and Tucker Anthony
Incorporated are the representatives (the "Representatives") pursuant to an
Underwriting Agreement (the "Underwriting Agreement") between the Company and
the Representatives of the Underwriters.
As counsel for the Company, we have examined the form of the proposed
Underwriting Agreement being filed as an exhibit to the Registration Statement,
the Restated Articles of Organization and the Company's Amended and Restated
By-laws, each as presently in effect, and such records, certificates and other
documents of the Company as we have deemed necessary or appropriate for the
purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts and certain other jurisdictions. We express no opinion concerning
the laws of any jurisdictions other than the laws of the United States of
America and The Commonwealth of Massachusetts, and also express no opinion with
respect to the blue sky or securities laws of any state, including
Massachusetts.
Based on the foregoing, we are of the opinion that (A) when the
Underwriting Agreement is completed (including the insertion therein of pricing
terms) and executed by the Company and on behalf of the Underwriters, and the
Company Shares are sold to the Underwriters and paid for pursuant to the terms
of the Underwriting Agreement, the Company Shares will be duly authorized,
legally issued, fully paid and non-assessable by the Company under the Business
Corporation Law of The Commonwealth of Massachusetts (the "MBCL"), and (B) the
Selling Stockholder Shares are duly authorized, legally issued, fully paid and
non-assessable by the Company under the MBCL.
We hereby consent to being named as counsel to the Company in the
Registration Statement, to the references therein to our firm under the caption
"Legal Matters," and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Goodwin, Procter & Hoar LLP
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 1 to Registration Statement No.
333-06885 of Brooktrout Technology, Inc. on Form S-3 of our report dated June
20, 1996 on the supplemental consolidated financial statements of Brooktrout
Technology, Inc. as of December 31, 1995 and 1994 and for each of the three
years in the period ended December 31, 1995 (which includes explanatory
paragraphs relating to the restatement of the consolidated financial statements
for a pooling-of-interests and a change in accounting for income taxes),
appearing in the Prospectus, which is part of this Registration Statement.
We also consent to the incorporation by reference in this Amendment No. 1
to Registration Statement No. 333-06885 of our report dated February 2, 1996
(except for Note 1, Stock Split, as to which the date is February 27, 1996)
(which includes an explanatory paragraph relating to a change in accounting for
income taxes) appearing in the Annual Report on Form 10-K/A of Brooktrout
Technology, Inc. for the year ended December 31, 1995, relating to the
historical financial statements of Brooktrout Technology, Inc., and of our
report dated March 8, 1996 (which includes an explanatory paragraph relating to
the acquisition of TSI by Brooktrout Technology, Inc.), appearing in the Proxy
Statement for the Annual Meeting of Stockholders held on May 29, 1996 of
Brooktrout Technology, Inc., related to the historical financial statements of
Technically Speaking, Inc.
We also consent to the references to our firm under the heading "Experts"
in the Prospectus, which is part of such Registration Statement.
DELOITTE & TOUCHE LLP
Boston, Massachusetts
July 9, 1996
