<PAGE>
1,100,000 Shares
SUPREMA SPECIALTIES, INC.
Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
July __, 2000
HOBBS MELVILLE SECURITIES CORP.
As Representative of the several Underwriters
110 Wall Street
New York, New York 10005
Dear Sirs:
1. Introduction. Suprema Specialties, Inc., a New York corporation (the
"Company"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters"), for which Hobbs Melville Securities
Corp. is acting as representative (the "Representative"), an aggregate of
1,000,000 shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock"). The stockholders listed in Schedule II hereto (the "Selling
Stockholders") propose severally to sell to the several Underwriters an
aggregate of 100,000 outstanding shares of Common Stock. The 1,000,000 shares of
Common Stock to be sold by the Company and the 100,000 shares of Common Stock to
be sold by the Selling Stockholders are referred to herein as the "Firm Shares."
The Company also proposes to issue and sell to the several Underwriters an
aggregate of not more than 65,000 additional shares of Common Stock, if
requested by the Underwriters in accordance with Section 9 hereof. The Selling
Stockholders severally also propose to issue and sell to the several
Underwriters an aggregate of not more than 100,000 additional shares of Common
Stock, if requested by the Underwriters in accordance with Section 9 hereof. The
65,000 additional shares of Common Stock to be sold by the Company and the
100,000 additional shares of Common Stock to be sold by the Selling Stockholders
are collectively referred to herein as the "Additional Shares." The Firm Shares
and the Additional Shares are collectively referred to herein as the "Shares."
The words "you" and "your" refer to the Representative of the Underwriters.
<PAGE>
The Company and each of the Selling Stockholders hereby agree with the
several Underwriters as follows:
2. Representations and Warranties.
(a) The Company represents, warrants and agrees with each
of the Underwriters that:
(i) A registration statement on Form S-2 (File No.
333-36716) under the Securities Act of 1933, as amended (the "Act"),
with respect to the Shares and the Warrants and Warrant Shares (each as
defined in Section 3(e)), including a form of prospectus subject to
completion, has been prepared by the Company in conformity with the
requirements of the Act and the rules and regulations of the Securities
and Exchange Commission (the "Commission") thereunder (the "Rules and
Regulations"). Such registration statement has been filed with the
Commission under the Act, and one or more amendments to such
registration statement may also have been so filed. After the execution
of this Agreement, the Company shall 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, a
prospectus in the form most recently included in an amendment to such
registration statement filed with the Commission (or, if no such
amendment shall have been filed, in such registration statement), with
such insertions and changes as are required by Rule 430A under the Act
or permitted by Rule 424(b) under the Act as shall have been provided
to and approved by the Representative prior to the filing thereof, 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 Representative prior to the filing thereof. As used in
this Agreement, the term "Registration Statement" means such
registration statement, as amended at the time when it was or is
declared effective, including all financial schedules and exhibits
thereto and to documents incorporated therein by reference; the
Registration Statement shall be deemed to include any information
omitted therefrom pursuant to Rule 430A under the Act and included in
the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion contained in
such registration statement or any amendment thereto (including the
prospectus subject to completion, if any, included in the Registration
Statement or any amendment thereto or filed pursuant to Rule 424(a)
under the Act at the time it was or is declared effective); and the
term "Prospectus" means the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Act or, if no prospectus is required
to be filed pursuant to said Rule 424(b), such term means the
prospectus included in the Registration Statement. References herein to
any document or other information incorporated by reference in the
Registration Statement shall include documents or other information
incorporated by reference in the Prospectus (or, if the Prospectus is
not in existence, in the most recent Preliminary Prospectus). Reference
made herein to any Preliminary Prospectus or the Prospectus shall be
deemed to include all documents and information incorporated by
reference therein under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") as provided for in the Registration Statement.
<PAGE>
(ii) The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus and has
not instituted or threatened to institute any proceedings with respect
to such an order. When any Preliminary Prospectus 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 and the Rules and Regulations and (B) did
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. 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 and the Rules and Regulations 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 and when any amendment or supplement thereto is
filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or such amendment or supplement is not required to be so
filed, when the Registration Statement and when any amendment thereto
containing such amendment or supplement to the Prospectus was or is
declared effective) and at all times subsequent thereto up to and
including the Closing Date (as defined in Section 3 hereof) and the
Option Closing Date (as defined in Section 9 hereof), the 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 and the Rules and Regulations 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) shall
not apply to statements or omissions made in any Preliminary
Prospectus, the Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in reliance upon, and
in conformity with, information furnished in writing to the Company by
or on behalf of the Underwriters through the Representative expressly
for use therein. The documents which are incorporated by reference in
any Preliminary Prospectus or the Prospectus or from which information
is so incorporated by reference, when they became effective or were
filed with the Commission, as the case may be, complied in all material
respects with the requirements of the Act and the Rules and Regulations
or the Exchange Act and the rules and regulations thereunder, as
applicable, and did not, when such documents were so filed, contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
<PAGE>
(iii) Each of the Company and its subsidiaries (A) is
a duly incorporated and validly existing corporation in good standing
under the laws of its jurisdiction of incorporation, with full
corporate power and authority to own or lease its properties and to
conduct its business as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); and (B) is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction (x) in
which the conduct of its business requires such qualification (except
for those jurisdictions in which the failure so to qualify has not had
and will not have a Material Adverse Effect (as hereinafter defined))
and (y) in which it owns or leases property. "Material Adverse Effect"
means, when used in connection with the Company or its subsidiaries,
any development, change or effect that is materially adverse to the
business, properties, assets, net worth, condition (financial or other)
or results of operations of the Company and its subsidiaries taken as a
whole.
(iv) The Company has the duly authorized and validly
outstanding capitalization set forth under the caption "Capitalization"
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and will have the adjusted
capitalization set forth therein on the Closing Date and the Option
Closing Date, based on the assumptions set forth therein. The
securities of the Company conform to the descriptions thereof contained
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus). The outstanding shares of Common Stock
have been duly authorized and validly issued by the Company and are
fully paid and nonassessable. Except as created hereby or referred to
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), there are no outstanding options,
warrants, rights or other arrangements requiring the Company or any
subsidiary at any time to issue any capital stock. 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 Shares
and neither the filing of the registration statement nor the offering
or sale of the Shares as contemplated by this Agreement gives rise to
any rights, other than those which have been waived in writing or
satisfied, for or relating to, the registration of any securities of
the Company. The Shares, the Warrants and the Warrant Shares (each as
defined below) have been duly authorized; on the Closing Date or the
Option Closing Date (as the case may be), after payment therefor in
accordance with the terms of this Agreement, (A) the Firm Shares and
the Additional Shares to be sold by the Company hereunder will be
validly issued, fully paid and nonassessable, (B) valid title to the
Shares will pass to the Underwriters on the Closing Date or the Option
Closing Date (as the case may be) free and clear of any lien,
encumbrance, security interest, claim or other restriction whatsoever
except for any such claims as may be placed on the Shares by the
Underwriters or any creditors of the Underwriters and (C) the Warrants
will be duly authorized, executed and delivered by the Company and will
be a valid and binding agreement on the part of the Company. All the
outstanding shares of capital stock of each subsidiary has been duly
authorized and validly issued, are fully paid and nonassessable and are
owned directly by the Company, free and clear of any lien, encumbrance,
security interest, claim or other restriction whatsoever except that
such shares have been pledged as collateral to the Company's primary
lending institution. The Company has received, subject to notice of
issuance, approval to have the Shares quoted on the National Market
System of the National Association of Securities Dealers' Automated
Quotation System and the Company knows of no reason or set of facts
which is likely to adversely affect such approval.
<PAGE>
(v) The consolidated financial statements and the
related notes and schedules thereto included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or incorporated
therein by reference fairly present the consolidated financial
condition, results of operations, stockholders' equity and cash flows
of the Company and its subsidiaries at the dates and for the periods
specified therein. Such financial statements and the related notes and
schedules thereto have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved (except as otherwise noted therein). Such financial
statements as of, and for the years ended June 30, 1997, 1998 and 1999,
have been examined by BDO Seidman, LLP, who, to the best of the
Company's knowledge, are independent public accountants within the
meaning of the Act and the Rules and Regulations, as indicated in their
reports filed therewith. The selected financial information and
statistical data set forth under the captions "Selected Consolidated
Financial Information" and "Management Discussion and Analysis of
Financial Condition and Results of Operation" in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) have been prepared on a basis consistent with the financial
statements of the Company and its subsidiaries.
(vi) The Company and each of its subsidiaries have
filed all necessary federal, state and local income, franchise and
other material tax returns (or have obtained extensions thereof) and
have paid all taxes shown as due thereunder except for such taxes as
are adequately reserved against and are being contested in good faith
by appropriate proceedings, and the Company has no knowledge of any tax
deficiency which might be assessed against the Company which, if so
assessed, may have a Materially Adverse Effect.
(vii) The Company and each of its subsidiaries
maintain insurance of the types and in amounts which they reasonably
believe to be adequate for their business, all of which insurance is in
full force and effect.
(viii) Except as disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), there is no pending action, suit, proceeding or
investigation or, to the Company's best knowledge, threatened action,
suit, proceeding or investigation before or by any court, regulatory
body or administrative agency or any other governmental agency or body,
domestic or foreign, which (A) questions the validity of the capital
stock of the Company or this Agreement or of any action taken or to be
taken by the Company pursuant to or in connection with this Agreement,
(B) is required to be disclosed in the Registration Statement which is
not so disclosed (and such proceedings, if any, as are summarized in
the Registration Statement or incorporated therein by reference are
accurately summarized in all material respects), or (C) if determined
adversely to the Company or its subsidiaries, could reasonably be
expected to result in a Material Adverse Effect.
<PAGE>
(ix) The Company has the corporate, power and
authority to enter into this Agreement and to consummate the
transactions provided for herein. This Agreement has been duly
authorized, executed and delivered by the Company and, assuming it is a
binding agreement of yours, constitutes a legal, valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws of general application relating to or affecting the enforcement of
creditors' rights and the application of equitable principles relating
to the availability of remedies and except as rights to indemnity or
contribution may be limited by federal or state securities laws and the
public policy underlying such laws), and none of the Company's
execution or delivery of this Agreement or the Warrant, its performance
hereunder or thereunder, its consummation of the transactions
contemplated herein and therein or its application of the net proceeds
of the offering in the manner set forth under the caption "Use of
Proceeds" conflicts or will conflict with or results or will result in
any breach or violation of any of the terms or provisions of, or
constitutes or will constitute a default under, causes or will cause
(or permits or will permit) the maturation or acceleration of any
liability or obligation or the termination of any right under, or
result in the creation or imposition of any lien, charge, or
encumbrance upon, any property or assets of the Company or any of its
subsidiaries pursuant to the terms of (A) the certificate of
incorporation or by-laws of the Company or any of its subsidiaries, (B)
any indenture, mortgage, deed of trust, voting trust agreement,
stockholders' agreement, note agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which any of them are or may be bound or to which any of their
respective property is or may be subject or (C) any statute, judgment,
decree, order, rule or regulation applicable to the Company or any of
its subsidiaries of any government, arbitrator, court, regulatory body
or administrative agency or other governmental agency or body, domestic
or foreign, having jurisdiction over the Company, any of its
subsidiaries or any of their respective activities or properties except
for such violation or conflict as would not, either individually or in
the aggregate, have a Material Adverse Effect.
<PAGE>
(x) All executed agreements or copies of executed
agreements filed or incorporated by reference as exhibits to the
Registration Statement to which the Company or any of its subsidiaries
is a party or by which any of them are or may be bound or to which any
of their assets, properties or businesses is or may be subject have
been duly and validly authorized, executed and delivered by the Company
or such subsidiary, as the case may be, and constitute the legal, valid
and binding agreements of the Company or such subsidiary, as the case
may be, enforceable against each of them in accordance with their
respective terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
relating to enforcement of creditors' rights generally, and general
equitable principles relating to the availability of remedies, and
except as rights to indemnity or contribution may be limited by federal
or state securities laws and the public policy underlying such laws).
The descriptions in the Registration Statement or incorporated therein
by reference of contracts and other documents are accurate and fairly
present the information required to be shown with respect thereto by
the Act and the Rules and Regulations, and there are no contracts or
other documents which are required by the Act or the Rules and
Regulations to be described in the Registration Statement or filed as
exhibits to the Registration Statement which are not described or filed
as required or incorporated therein by reference, and the exhibits
which have been filed are complete and correct copies of the documents
of which they purport to be copies.
(xi) Subsequent to the most recent respective dates
as of which information is given in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), and except as expressly contemplated therein, neither the
Company nor any of its subsidiaries has incurred, other than in the
ordinary course of its business, any material liabilities or
obligations, direct or contingent, purchased any of its outstanding
capital stock, paid or declared any dividends or other distributions on
its capital stock or entered into any material transactions not in the
ordinary course of business, and there has been no material change in
capital stock or debt or any material adverse change in the business,
properties, assets, net worth, condition (financial or other), or
results of operations of the Company and its subsidiaries taken as a
whole. Neither the Company nor any of its subsidiaries (or the manner
in which it any of them conducts its business) is in breach or
violation of, or in default under, any term or provision of (A) its
certificate of incorporation or bylaws, (B) any indenture, mortgage,
deed of trust, voting trust agreement, stockholders' agreement, note
agreement or other agreement or instrument to which it is a party or by
which it is or may be bound or to which any of its property is or may
be subject, or any indebtedness, the effect of which breach or default
singly or in the aggregate may have a Material Adverse Effect, or (C)
any statute, judgment, decree, order, rule or regulation applicable to
the Company or any of its subsidiaries or of any arbitrator, court,
regulatory body, administrative agency or any other governmental agency
or body, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their respective activities or
properties and the effect of which breach or default singly or in the
aggregate would reasonably be expected to result in a Material Adverse
Effect.
<PAGE>
(xii) No labor disturbance by the employees of the
Company or any of its subsidiaries exists or is imminent which may have
a Material Adverse Effect.
(xiii) Since its inception, the Company has not
committed any material violation of the registration requirements of
the Act.
(xiv) No consent, approval, authorization or order of
or filing with any court, regulatory body, administrative agency or any
other governmental agency or body, domestic or foreign, is required for
the performance by the Company of this Agreement or the consummation of
the transactions contemplated hereby, except such as have been or may
be obtained under the Act or may be required under state securities or
Blue Sky laws in connection with the Underwriters' purchase and
distribution of the Shares.
(xv) Neither the Company nor any of its officers,
directors or affiliates (within the meaning of the Rules and
Regulations) has taken, directly or indirectly, any action designed to
stabilize or manipulate the price of any security of the Company, or
which has constituted or which might in the future reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company, to facilitate the sale or resale
of the Shares.
(xvi) Each of the Company and its subsidiaries has
good and marketable title to, or valid and enforceable leasehold
interests in, all properties and assets owned or leased by it, free and
clear of all liens, encumbrances, security interests, claims,
restrictions, equities, and defects, except (A) such as are described
in the Registration Statement and Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), or such as
do not materially adversely affect the value of any of such properties
or assets taken as a whole and do not materially interfere with the use
made and proposed to be made of any of such properties or assets, and
(B) liens for taxes not yet due and payable as to which appropriate
reserves have been established and reflected in the financial
statements included or incorporated by reference in the Registration
Statement and (c) liens, encumbrances, security interests, claims,
restrictions, equities and defects as would not have a Material Adverse
Effect. The Company owns or leases all such properties as are necessary
to its operations as now conducted, and as proposed to be conducted as
set forth in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus); and the properties and business of the Company and its
subsidiaries conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus). All the material leases and subleases of the Company and
its subsidiaries, and under which the Company or any subsidiary holds
properties or assets as lessee or sublessee, constitute valid leasehold
interests of the Company or such subsidiary free and clear of any lien,
encumbrance, security interest, restriction, equity, claim or defect,
are in full force and effect, and neither the Company nor any
subsidiary is in default in respect of any of the material terms or
provisions of any such material leases or subleases, and neither the
Company nor any subsidiary has notice of any claim which has been
asserted by anyone adverse to the Company's or any of its subsidiary's
rights as lessee or sublessee under either the material lease or
sublease, or affecting or questioning the Company's or any subsidiary's
right to the continued possession of the leased or subleased premises
under any such material lease or sublease, which may have a Material
Adverse Effect.
<PAGE>
(xvii) Neither the Company nor any subsidiary has
violated any applicable environmental, safety, health or similar law
applicable to the business of the Company, nor any federal or state law
relating to discrimination in the hiring, promotion, or pay of
employees, nor any applicable federal or state wages and hours law, nor
any provisions of ERISA or the rules and regulations promulgated
thereunder, the consequences of which violation may have a Material
Adverse Effect.
(xviii) Each of the Company and its subsidiaries have
obtained all franchises, licenses, permits, approvals, certificates and
other authorizations from federal, state and other governmental or
regulatory authorities necessary to the ownership, leasing and
operation of its properties or required for the present conduct of its
business, and such franchises, licenses, permits, approvals,
certificates and other governmental authorizations are in full force
and effect and the Company and its subsidiaries are in compliance
therewith in all material respects except where the failure so to
obtain, maintain or comply with would not have a Material Adverse
Effect.
(xix) No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, 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 except as described in
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) or except as may be prohibited by the
terms of the Third Amended and Restated Revolving Credit Agreement, as
amended, among the Company, its subsidiaries and Fleet Bank N.A.
(xx) The Company meets the requirements for use of
Form S-2 under the Rules and Regulations.
(b) Each Selling Stockholder severally represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has the power and
authority to enter into this Agreement, the Power of Attorney in the
form heretofore furnished to you (the "Power of Attorney") and the
Custody Agreement in the form heretofore furnished to you (the "Custody
Agreement"). Each of this Agreement, the Power of Attorney and the
Custody Agreement has been duly executed and delivered by such Selling
Stockholder, and (assuming this Agreement is a binding agreement of
yours) constitutes the valid and binding agreement of such Selling
Stockholder, enforceable against such Selling Stockholder in accordance
with its their respective terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or
affecting the enforcement of creditor's rights and the application of
equitable principles relating to the availability of remedies, and
except as rights to indemnity or contribution may be limited by federal
or state securities law and the public policy underlying such laws).
<PAGE>
(ii) None of the execution, delivery or performance
of this Agreement, the Power of Attorney and the Custody Agreement by
the Selling Stockholder and the consummation of the transactions herein
and therein contemplated, will conflict with or result in a breach of,
or default under, any indenture, mortgage, deed of trust, voting trust
agreement, stockholders' agreement, note agreement, or other agreement
or instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder is or may be bound or to which any of his or
her property is or may be subject, or to the best of such Selling
Stockholders' knowledge, any statute, judgment, decree, order, rule or
regulation applicable to such Selling Stockholder of any government,
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having jurisdiction
over such Selling Stockholder or any of his activities or properties.
(iii) At the date hereof, such Selling Stockholder
has, and at the time of delivery of the Shares to be sold by such
Selling Stockholder to the several Underwriters, such Selling
Stockholder will have, full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder. At the date hereof such Selling Stockholder is, and at the
time of delivery of the Shares to be sold by such Selling Stockholder,
such Selling Stockholder will be, the lawful owner of and has and will
have, good and marketable title to such Shares free and clear of any
liens, encumbrances, security interests, claims, community property
rights, restrictions on transfer or other defects in title. Upon
delivery of and payment for the Shares to be sold by such Selling
Stockholder hereunder, valid title to such Shares will pass to the
Underwriters, free and clear of any liens, encumbrances, security
interests, claims, community property rights, restrictions on transfer
or other defects in title except for any such claims as may be placed
on the Shares by the Underwriters or any creditors of the Underwriters.
Except as described in the Registration Statement and the Prospectus
(or, if there is no Prospectus, the most recent Preliminary Prospectus)
or created hereby, there are no outstanding options, warrants, rights,
or other agreements or arrangements requiring such Selling Stockholder
at any time to transfer any Common Stock to be sold hereunder by such
Selling Stockholder.
(iv) At the time when the Registration Statement
becomes or became effective, and at all times subsequent thereto up to
and including the Closing Date and the Option Closing Date, the
Registration Statement and any amendments thereto will not contain any
untrue statement of a material fact regarding such Selling Stockholder
or omit to state a material fact regarding such Selling Stockholder
required to be stated therein or necessary in order to make the
statements therein regarding such Selling Stockholder not misleading,
and the Prospectus (and any supplements thereto) (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) will not
contain any untrue statement of a material fact regarding such Selling
Stockholder or omit to state a material fact regarding such Selling
Stockholder required to be stated therein or necessary in order to make
the statements therein regarding such Selling Stockholder, in light of
the circumstances under which they were made, not misleading. Such
Selling Stockholder is unaware of any material misstatement in or
omission from the Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
or of any material adverse information regarding the business or
operations of the Company or its subsidiaries which is not set forth in
the Registration Statement and the Prospectus (or, if the Prospectus is
not then in existence, in the most recent Preliminary Prospectus).
<PAGE>
(v) Such Selling Stockholder has not taken, directly
or indirectly, any action designed to stabilize or manipulate the price
of any security of the Company, or which has constituted or which might
in the future reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company, to facilitate the sale or resale of the Shares or otherwise.
(vi) There is not pending or threatened against such
Selling Stockholder any action, suit or proceeding which (A) questions
the validity of this Agreement or of any action taken or to be taken by
such Selling Stockholder pursuant to or in connection with this
Agreement or (B) is required to be disclosed in the Registration
Statement which is not so disclosed, and such actions, suits or
proceedings as are summarized in the Registration Statement, if any,
are accurately summarized.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, (A) the Company agrees to sell to each Underwriter and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
a purchase price of $_____ per Share, the number of Firm Shares set forth
opposite the name of such Underwriter in Column (1) of Schedule I hereto and (B)
each Selling Stockholder, severally and not jointly, agrees to sell to each
Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from such Selling Stockholder, at the same purchase price per Share, the number
of Firm Shares equal to the number of Firm Shares set forth opposite the name of
such Underwriter in Column (2) of Schedule I, multiplied by the number of Firm
Shares set forth opposite the name of such Selling Stockholder in Column (1) of
Schedule II and divided by the total number of Firm Shares to be sold by all
Selling Stockholders, in each case subject to such adjustments to eliminate any
fractional shares as the Representative in its sole discretion shall make.
<PAGE>
(b) Certificates in negotiable form (endorsed in blank or
accompanied by stock powers in blank, with signatures appropriately guaranteed,
and any funds necessary for the purchase of stock transfer stamps) representing
all of the Shares to be sold by the Selling Stockholders have been placed in
custody under a Custody Agreement and each Selling Stockholder has duly executed
and delivered a Power of Attorney appointing Marc Cocchiola, Steven Venechanos
and Paul Lauriero and each of them as such Selling Stockholder's
attorney-in-fact (the "Attorney-in-Fact") with authority to execute this
Agreement and to deliver this Agreement on behalf of such Selling Stockholder,
to authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the Custody
Agreement. Each Selling Stockholder agrees that the shares represented by the
certificates held in custody for such Selling Stockholder under the Custody
Agreement are subject to the interests of the Underwriters hereunder and the
arrangements made by such Selling Stockholder for such custody, as well as the
appointment by such Selling Stockholder of the Attorney-in-Fact, are, to that
extent, irrevocable. Each Selling Stockholder specifically agrees that the
obligations of such Selling Stockholder hereunder shall not be terminated,
except as otherwise provided herein, by any act of such Selling Stockholder,
operation of law or otherwise, whether by the death or incapacity of such
Selling Stockholder, if an individual, or by the occurrence of any other event.
If any Selling Stockholder, if an individual, should die or become
incapacitated, or if any other such event should occur, before the delivery of
the Shares hereunder, certificates representing the shares held in custody for
such Selling Stockholder shall be delivered pursuant to the terms and conditions
of this Agreement and the Custody Agreement, and the actions taken by the
Attorney-in-Fact pursuant to the Power of Attorney shall be as valid as if such
death, incapacity or other event had not occurred, whether or not the Custodian
or the Attorneys-in-Fact shall have received notice of such death, incapacity or
other event.
(c) Delivery of certificates, and payment of the purchase
price, for the Firm Shares shall be made at the offices of Hobbs Melville
Securities Corp. at 110 Wall Street, New York, New York 10005, or such other
location as shall be agreed upon by the Company and the Representative. Such
delivery and payment shall be made at 10:00 a.m., New York City time, on July
__, 2000 or at such other time and date not more than five business days
thereafter as shall be agreed upon by the Representative and the Company. The
time and date of such delivery and payment are herein called the "Closing Date."
(d) Delivery of the certificates for the Firm Shares shall be
made to the Representative for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representative of the purchase price for the Firm Shares in same day funds drawn
to the order of the Company in the case of Firm Shares sold by it and the
Custodian in the case of Firm Shares sold by the Selling Stockholders. The
certificates for the Firm Shares to be so delivered will be in definitive, fully
registered form, will bear no restrictive legends and will be in denominations
and registered in such names as the Representative shall request, not less than
two full business days prior to the Closing Date. The certificates for the Firm
Shares will be made available to the Representative at such office or such other
place as the Representative may designate for inspection, checking and packaging
not later than 9:30 a.m., New York time on the business day prior to the Closing
Date.
<PAGE>
(e) The Company hereby sells to the Representative, for
consideration of $110 in the aggregate, Warrants (the "Warrants") to purchase
110,000 shares of Common Stock (the "Warrant Shares") at a price per share equal
to 140% of the public offering price. On the Closing Date, the Company shall
issue one or more Warrants, in such denominations and registered in such names
as the Representative may request, in the form attached hereto as Exhibit A.
4. Public Offering of the Shares. It is understood that the
Underwriters propose to make a public offering of the Shares at the price and
upon the other terms set forth in the Prospectus.
5. Covenants of the Company and the Selling Stockholders.
(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 practicable. If required, the Company will file the
Prospectus and any amendment or supplement thereto with the Commission
in the manner and within the time period required by Rule 424(b) under
the Act. During any time when a prospectus relating to the Shares is
required to be delivered under the Act, the Company (A) will comply
with all requirements imposed upon it by the Act and the Rules and
Regulations to the extent necessary to permit the continuance of sales
of or dealings in the Shares in accordance with the provisions hereof
and of the 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)(i) hereof, any amendment or
supplement to such prospectus or any amendment to the Registration
Statement of which the Representative shall not previously have been
advised and furnished with a copy a reasonable period of time prior to
the proposed filing and as to which filing the Representative shall not
have given its consent.
(ii) As soon as the Company is advised or obtains
knowledge thereof, the Company will advise the Representative (A) when
the Registration Statement, as amended, has become effective; if the
provisions of Rule 430A promulgated under the Act will be relied upon,
when the Prospectus has been filed in accordance with said Rule 430A
and when any post-effective amendment to the Registration Statement
becomes effective; (B) of any request made by the Commission for
amending the Registration Statement, for supplementing any Preliminary
Prospectus or the Prospectus or for additional information, or (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto or the institution or threat of any investigation or proceeding
for that purpose, and will use its best efforts to prevent the issuance
of any such order and, if issued, to obtain the lifting thereof as soon
as possible.
<PAGE>
(iii) The Company will (A) use its best efforts to
arrange for the qualification of the Shares for offer and sale under
the state securities or blue sky laws of such jurisdictions as the
Representative may designate, (B) continue such qualifications in
effect for as long as may be necessary to complete the distribution of
the Shares, and (C) make such applications, file such documents and
furnish such information as may be required for the purposes set forth
in clauses (A) and (B); provided, however, that the Company shall not
be required to qualify as a foreign corporation or file a general or
unlimited consent to service of process in any such jurisdiction.
(iv) The Company consents to the use of the
Prospectus (and any amendment or supplement thereto) by the
Underwriters and all dealers to whom the Shares may be sold, in
connection with the offering or sale of the Shares and for such period
of time thereafter as the Prospectus is required by law to be delivered
in connection therewith. If, at any time when a prospectus relating to
the Shares is required to be delivered under the Act, any event occurs
as a result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein not
misleading, or if it becomes necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Rules and
Regulations, the Company promptly will so notify the Representative
and, subject to Section 5(a)(i) hereof, will prepare and file with the
Commission an amendment to the Registration Statement or an amendment
or supplement to the Prospectus which will correct such statement or
omission or effect such compliance, each such amendment or supplement
to be reasonably satisfactory to counsel to the Underwriters.
(v) As soon as practicable, but in any event not
later than 45 days after the end of the 12-month period beginning on
the day after the end of the fiscal quarter of the Company during which
the effective date of the Registration Statement occurs (90 days in the
event that the end of such fiscal quarter is the end of the Company's
fiscal year), the Company will make generally available to its security
holders, in the manner specified in Rule 158(b) of the Rules and
Regulations, and to the Representative, an earnings statement which
will be in the detail required by, and will otherwise comply with, the
provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and
Regulations, which statement need not be audited unless required by the
Act or the Rules and Regulations, covering a period of at least 12
consecutive months after the effective date of the Registration
Statement.
<PAGE>
(vi) During a period of 12 months after the date
hereof, the Company will deliver to the Representative:
(A) concurrently with filing quarterly
reports on Form 10-Q with the Commission, such quarterly
reports on Form 10-Q;
(B) concurrently with furnishing such annual
reports to its stockholders, a balance sheet of the Company as
at the end of the preceding fiscal year, together with
statements of operations, stockholders' equity, and cash flows
of the Company for such fiscal year, accompanied by a copy of
the report thereon of independent public accountants;
(C) as soon as they are available, copies of
all information (financial or other) mailed to stockholders;
(D) every press release which was released
by the Company; and
(E) any additional information of a public
nature concerning the Company or its business which the
Representative may reasonably request.
During such 12 month period, if the Company continues
to have active subsidiaries, the foregoing financial statements will be
on a consolidated basis to the extent that the accounts of the Company
and its subsidiaries are consolidated.
(vii) The Company will maintain a Transfer Agent and,
if necessary under the jurisdiction of incorporation of the Company, a
Registrar (which may be the same entity as the Transfer Agent) for its
Common Stock. For a period of one year after the date hereof, the
Company shall provide the Representative with weekly transfer sheets
with respect to its Common Stock.
(viii) The Company will furnish, without charge, to
the Representative or on the Representative's order, at such place as
the Representative may designate, copies of the each Preliminary
Prospectus, the Registration Statement and any pre-effective or
post-effective amendments thereto (two of which copies will be signed
and will include all financial statements and exhibits) and the
Prospectus, and all amendments and supplements thereto, in each case as
soon as available and in such quantities as the Representative may
reasonably request.
(ix) The Company will not, directly or indirectly,
without the prior written consent of the Representative, issue, offer,
sell, grant any option to purchase or otherwise dispose (or announce
any issuance, offer, sale, grant of any option to purchase or other
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 9 months after the date hereof, except pursuant
to this Agreement, except for (i) sales or issuances pursuant to the
exercise of options or warrants outstanding on the date hereof, (ii)
sales or issuances upon exercise of options granted or pursuant to
other stock-based awards granted subsequent to the date hereof pursuant
to a stock option, stock incentive or other employee benefit plan in
existence on the date hereof, (iii) the issuance of Common Stock or any
securities convertible into or exchangeable or exercisable for or
rights to purchase shares of Common Stock in connection with an
acquisition by the Company, (iv) the issuance of any option, warrant or
convertible security to a lending institution in connection with its
making of a bona fide loan to the Company, or the issuance of Common
Stock upon exercise or conversion of such option, warrant or
convertible security, (v) issuances pursuant to the Company's Share
Purchase Rights Plan ("Poison Pill") in existence on the date hereof
and (iv) as contemplated by the Prospectus.
<PAGE>
(x) The Company will cause the Shares to be duly
included for quotation on the National Association of Securities
Dealers Automated Quotations National Market System prior to the
Closing Date.
(xi) Neither the Company nor any of its officers or
directors, nor affiliates of any of them (within the meaning of the
Rules and Regulations) will take, directly or indirectly, any action
designed to, or which might in the future reasonably be expected to
cause or result in, stabilization or manipulation of the price of any
securities of the Company.
(xii) The Company will apply the net proceeds of the
offering received by it in the manner set forth under the caption "Use
of Proceeds" in the Prospectus.
(xiii) For a period of two years from the date
hereof, the Company will use its best efforts to timely file all such
reports, forms or other documents as may be required from time to time,
under the Act, the Rules and Regulations, the Exchange Act, and the
rules and regulations thereunder, and all such reports, forms and
documents filed will comply in all material respects with the
applicable requirements under the Act, the Rules and Regulations, the
Exchange Act and the rules and regulations thereunder.
(xiv) The Company shall obtain at least $1,000,000 of
key person life insurance on the life of Mark Cocchiola, the proceeds
of which will be payable to the Company, and shall maintain such
insurance in effect until the later of two years from the effective
date of the Registration Statement or the expiration of the term of the
employment agreement between the Company and Mr. Cocchiola.
(xv) For a period of one year from the effective date
of the Registration Statement, the Company shall retain a financial
public relations firm reasonably acceptable to the Representative.
(xvi) The Company hereby grants the Representative a
preferential right (which, if exercised, must be so exercised by the
Representative within two business days after receiving notice of a
proposed sale), for a period of one year from the effective date of the
Registration Statement, to sell, for the account of any of the
Company's officers or directors owning at least five percent (5%) of
the Company's Common Stock as of the date hereof or immediately
following the Closing Date, any shares of Common Stock that any such
officer or director may seek to sell under Rule 144 promulgated under
the Act, on terms no less favorable than those that could be obtained
elsewhere.
<PAGE>
(xvii) If the Representative introduces potential
merger or acquisition candidates to the Company, the Representative
shall be entitled to a "Lehman Formula" finder's fee (any consideration
other than cash to be valued at fair market value as determined by the
Company) of the aggregate consideration involved in any transaction
(including mergers, acquisitions, joint ventures and any other business
combination for the Company introduced by the Representative)
consummated by the Company during a period ending one year from the
signing of this Agreement in which the Representative introduced the
other party to the Company. Such finder's fee due to the Representative
will be paid in the same consideration as the Company receives its
compensation at the closing of such transaction for which the finder's
fee is due. Written notice of the introduction of any merger and
acquisition candidate in connection with which a fee is sought shall be
provided by the Representative to the Company.
(xviii) For a one (1) year period from the effective
date of the Registration Statement, the Representative has a right to
appoint a designee as an observer to the board of directors of the
Company. Such observer will have the right to attend all meetings of
the board of directors. Such observer shall be entitled to receive
reimbursement for all out-of-pocket incurred in attending such
meetings, including, but not limited to, food, lodging, transportation
and any fees paid to directors for attending such meetings. The
Representative shall be given notice of such meetings at the same time
and in the same manner as directors of the Company are informed. The
Representative and such observer shall be indemnified to the same
extent as the other directors, subject to any limitations under
applicable laws.
(xix) The Company will purchase directors and
officers insurance in an amount not less than $5,000,000.
(b) Each Selling Stockholder covenants and agrees with
each of the Underwriters that:
(i) Each Selling Stockholder will not, without the
prior written consent of the Representative on behalf of the
Underwriters, directly or indirectly, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise
sell or dispose (or announce any offer, sale, offer of sale, contract
of sale, pledge, grant of any option to purchase or other sale or
disposition) of (A) any shares of Common Stock or of securities
substantially similar thereto or (B) any other securities convertible
into, or exchangeable or exercisable for, shares of Common Stock or
such similar securities, beneficially owned (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, as amended) by a
Selling Stockholder on the date hereof or hereafter acquired for a
period of 6 months subsequent to the date of the final Prospectus filed
with the Commission pursuant to Rule 424(b) of the Act promulgated by
the Commission or if no filing under Rule 424(b) is made, the date of
the final Prospectus included within the Registration Statement when
declared effective under the Act.
<PAGE>
(ii) Each Selling Stockholder consents to the use of
the Prospectus and any amendment or supplement thereto by the
Underwriters and all dealers to whom the Shares may be sold, both in
connection with the offering or sale of the Shares and for such period
of time thereafter as the Prospectus is required by law to be delivered
in connection therewith.
6. Expenses.
(a) Regardless of whether the transactions contemplated in
this Agreement are consummated, and regardless of whether for any reason this
Agreement is terminated, the Company will pay, and hereby agrees to indemnify
each Underwriter against, all fees and expenses incident to the performance of
the obligations of the Company and the Selling Stockholders under this
Agreement, including, but not limited to, (i) fees and expenses of accountants
and counsel for the Company and the Selling Stockholders, (ii) all costs and
expenses incurred in connection with the preparation, duplication, printing,
filing, delivery and shipping of copies of the Registration Statement and any
pre-effective or post-effective amendments thereto, any Preliminary Prospectus
and the Prospectus and any amendments or supplements thereto (including postage
costs related to the delivery by the Underwriters of any Preliminary Prospectus
or Prospectus, or any amendment or supplement thereto), this Agreement, the
Agreement Among Underwriters, any Selected Dealer Agreement, Underwriters'
Questionnaire, Underwriters' Power of Attorney, Custody Agreement and Selling
Stockholders' Power of Attorney and all other documents in connection with the
transactions contemplated herein, including the cost of all copies thereof,
(iii) fees and expenses relating to qualification of the Shares under state
securities or blue sky laws, including the cost of preparing and mailing the
preliminary and final blue sky memoranda and filing fees and disbursements and
fees of counsel and other related expenses, if any, in connection therewith
(provided, however, that the Company shall not be responsible for expenses
described in this clause (iii) in excess of $20,000 unless the Representative
and the Company agree that additional filings are required in excess of
$20,000), (iv) filing fees of the Commission and the NASD relating to the
Shares, (v) any fees and expenses in connection with the quotation of the Shares
on the National Association of Securities Dealers Automated Quotations National
Market System, (vi) costs and expenses incident to the preparation, issuance and
delivery to the Underwriters of any certificates evidencing the Shares,
including transfer agent's and registrar's fees and any applicable transfer
taxes incurred in connection with the delivery to the Underwriters of the Shares
to be sold by the Company and the Selling Stockholders pursuant to this
Agreement, (vii) costs and expenses incident to any meetings with prospective
investors in the Shares (other than as shall have been specifically approved by
the Representative to be paid for by the Underwriters) and (viii) costs and
expenses of one tombstone advertisement relating to the offering of the Shares
(other than as shall have been specifically approved by the Representative to be
paid for by the Underwriters).
<PAGE>
(b) The Company further agrees that, in addition to the costs
and expenses payable pursuant to paragraph (a) of this Section 6, it will pay to
the Representative on the Closing Date (by certified or bank cashiers check) a
non-accountable expense allowance equal to three percent (3%) of the aggregate
price to the public of the Firm Shares. In the event the Underwriters elect to
exercise the over-allotment option described in Section 9 hereof, the Company
agrees to pay to the Representative on the Option Closing Date (by certified or
bank cashiers check) a non-accountable expense allowance equal to three percent
(3%) of the aggregate price to the public of the Option Shares. The Company has
previously paid to the Representative a retainer in the total amount of $50,000
to defray anticipated costs and expenses of the Representative related to this
offering, which shall be deducted from the amount payable under this paragraph
(b).
(c) If the purchase of the Shares as herein contemplated is
not consummated for any reason other than the Underwriters' default under this
Agreement or other than by reason of Section 11(a), the Company shall reimburse
the several Underwriters for their actual accountable out-of-pocket expenses
(including reasonable counsel fees and disbursements) up to $100,000 in
connection with any investigation made by them, and any preparation made by them
in respect of marketing of the Shares or in contemplation of the performance by
them of their obligations hereunder.
7. Conditions of the Underwriters' Obligations. The obligation of each
Underwriter to purchase and pay for the Shares set forth opposite the name of
such Underwriter in Schedule I is subject to the continuing accuracy of the
representations and warranties of the Company and the Selling Stockholders
herein as of the date hereof and as of the Closing Date as if they had been made
on and as of the Closing Date; the accuracy on and as of the Closing Date of the
statements of officers of the Company and the Selling Stockholders made pursuant
to the provisions hereof; the performance by the Company and the Selling
Stockholders on and as of the Closing Date of their respective covenants and
agreements hereunder; and the following additional conditions:
(a) If the Company has elected to rely on Rule 430A under the
Act, the Registration Statement shall have been declared effective, and the
Prospectus (containing the information omitted pursuant to Rule 430A) shall have
been filed with the Commission not later than the Commission's close of business
on the second business day following the date hereof or such later time and date
to which the Representative shall have consented; if the Company does not elect
to rely on Rule 430A, the Registration Statement shall have been declared
effective not later than 11:00 A.M., New York time, on the date hereof or such
later time and date to which the Representative shall have consented; if
required, in the case of any changes in or amendments or supplements to the
Prospectus in addition to those contemplated above, the Company shall have filed
such Prospectus as amended or supplemented with the Commission in the manner and
within the time period required by Rule 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
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
Representative, 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 or the Prospectus or otherwise).
<PAGE>
(b) The Representative shall not have advised the Company that
the Registration Statement, or any amendment thereto, contains an untrue
statement of fact which, in the Representative's opinion, is material, or omits
to state a fact which, in the Representative's opinion, is material and is
required to be stated therein or is necessary to make the statements therein not
misleading, or that the Prospectus, or any supplement thereto, contains an
untrue statement of fact which, in the Representative's opinion, is material, or
omits to state a fact which, in the Representative's opinion, is material and is
required to be stated therein or is necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall
have received from counsel to the Underwriters, such opinion or opinions with
respect to the issuance and sale of the Firm Shares, the Registration Statement
and the Prospectus and such other related matters as the Representative
reasonably may request and such counsel shall have received such documents and
other information as they request to enable them to pass upon such matters.
(d) On the Closing Date, the Underwriters shall have received
the opinion, dated the Closing Date, of Blank Rome Tenzer Greenblatt LLP,
counsel to the Company ("Company Counsel"), substantially in the form as
attached hereto as Exhibit B.
(e) On or prior to the Closing Date, counsel to the
Underwriters shall have been furnished such documents, certificates and opinions
as they may reasonably require in order to evidence the accuracy, completeness
or satisfaction of any of the representations or warranties of the Company or
the Selling Stockholders, or conditions herein contained.
(f) At the time that this Agreement is executed by the
Company, the Underwriters shall have received from BDO Seidman, LLP a letter as
of the date this Agreement is executed by the Company in form and substance
satisfactory to you (the "Original Letter"), and on the Closing Date the
Underwriters shall have received from such firm a letter dated the Closing Date
stating that, as of a specified date not earlier than five (5) days prior to the
Closing Date, nothing has come to the attention of such firm to suggest that the
statements made in the Original Letter are not true and correct.
(g) On the Closing Date, the Underwriters shall have received
a certificate, dated the Closing Date, of the principal executive officer and
the principal financial or accounting officer of the Company to the effect that
each of such persons has carefully examined the Registration Statement and the
Prospectus and any amendments or supplements thereto and this Agreement, and
that:
<PAGE>
(i) The representations and warranties of the Company
in this Agreement are true and correct, as if made on and as of the
Closing Date, and the Company has complied with all agreements and
covenants and satisfied all conditions contained in this Agreement on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings for that
purpose have been instituted or are pending or, to the best knowledge
of each of such persons are contemplated or threatened under the Act
and any and all filings required by Rule 424 and Rule 430A have been
timely made;
(iii) The Registration Statement and Prospectus and,
if any, each amendment and each supplement thereto, contain all
statements and information required to be included therein, and neither
the Registration Statement nor any amendment thereto includes any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and neither the Prospectus (or any supplement
thereto) or any Preliminary Prospectus includes or included any untrue
statement of a material fact or omits or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
up to and including the Closing Date, neither the Company nor any of
the subsidiaries has incurred, other than in the ordinary course of its
business, any material liabilities or obligations, direct or
contingent; neither the Company nor any of the subsidiaries has
purchased any of its outstanding capital stock or paid or declared any
dividends or other distributions on its capital stock; neither the
Company nor any of the subsidiaries has entered into any material
transactions not in the ordinary course of business; and there has not
been any material change in the capital stock or consolidated long-term
debt or any increase in the consolidated short-term borrowings (other
than any increase in short-term borrowings in the ordinary course of
business) of the Company or any material adverse change to the
business, properties, assets, net worth, condition (financial or other)
or results of operations of the Company and its subsidiaries taken as a
whole; neither the Company nor any of the subsidiaries has sustained
any material loss or damage to its property or assets, whether or not
insured; there is no litigation which is pending or threatened against
the Company or any of its subsidiaries which is required under the Act
or the Rules and Regulations to be set forth in an amended or
supplemented Prospectus which has not been set forth; and there has not
occurred any material event required to be set forth in an amended or
supplemented Prospectus which has not been set forth.
<PAGE>
References to the Registration Statement and the
Prospectus in this paragraph (g) are to such documents as amended and
supplemented at the date of the certificate.
(h) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus up to and including
the Closing Date, there shall not have been (i) any material adverse change or
decrease specified in the letter or letters referred to in paragraph (f) of this
Section 7 or (ii) any material adverse change, or any development involving a
prospective change, in the business or properties of the Company or its
subsidiaries which change or decrease in the case of clause (i) or change or
development in the case of clause (ii) makes it impractical or inadvisable in
the Representative's reasonable judgment to proceed with the public offering or
the delivery of the Shares as contemplated by the Prospectus.
(i) No order suspending the sale of the Shares in any
jurisdiction designated by you pursuant to Section 5(a)(iii)(A) hereof shall
have been issued on or prior to the Closing Date and no proceedings for that
purpose shall have been instituted or, to your knowledge or that of the Company,
have been or shall be contemplated.
(j) On the Closing Date, the Underwriters shall have received
the opinion, dated the Closing Date, of Blank Rome Tenzer Greenblatt LLP, in its
capacity as counsel for the Selling Stockholders, substantially in the form as
attached hereto as Exhibit C.
(k) On the Closing Date, the Underwriters shall have received
a certificate, dated the Closing Date, from each Selling Stockholder (which may
be signed by the Attorney-in-Fact) to the effect that each Selling Stockholder
has carefully examined the Registration Statement and the Prospectus and this
Agreement, and that:
(A) The representations and warranties of
such Selling Stockholder in this Agreement are true and
correct, as if made at and as of the Closing Date, and such
Selling Stockholder has complied with all the agreements and
satisfied all the conditions to be performed or satisfied by
such Selling Stockholder at or prior to the Closing Date; and
(B) The Registration Statement and
Prospectus and, if any, each amendment and each supplement
thereto, contain all statements required to be included
therein regarding such Selling Stockholder, and none of the
Registration Statement nor any amendment thereto includes any
untrue statement of a material fact regarding such Selling
Stockholder or omits to state any material fact regarding such
Selling Stockholder required to be stated therein or necessary
to make the statements therein regarding such Selling
Stockholder not misleading, and neither the Prospectus (and
any supplements thereto) or any Preliminary Prospectus
includes or included any untrue statement of a material fact
regarding such Selling Stockholder or omits or omitted to
state a material fact regarding such Selling Stockholder
required to be stated therein or necessary in order to make
the statements therein regarding such Selling Stockholder, in
light of the circumstances under which they were made, not
misleading.
<PAGE>
(l) The Representative shall have received from each Selling
Stockholder an agreement to the effect that such person will not, directly or
indirectly, without the prior written consent of the Representative, offer,
sell, grant any option to purchase or otherwise dispose (or announce any offer,
sale, grant of an option to purchase or other 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 6 months after the date of this
Agreement.
(m) The Company and the Selling Stockholders shall have
furnished the Underwriters with such further opinions, letters, certificates or
documents as you or counsel for the Underwriters may reasonably request. All
opinions, certificates, letters and documents to be furnished by the Company and
the Selling Stockholders will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Underwriters and to
counsel for the Underwriters. The Company and the Selling Stockholder shall
furnish the Underwriters with conformed copies of such opinions, certificates,
letters and documents in such quantities as you reasonably request. The
certificates delivered under this Section 7 shall constitute representations,
warranties and agreements of the Company and the Selling Stockholders, as the
case may be, as to all matters set forth therein as fully and effectively as if
such matters had been set forth in Section 2 of this Agreement; and
(n) The Shares have been approved for inclusion on the
National Association of Securities Dealers Automated Quotation National Market
System.
8. Indemnification.
(a) The Company, jointly and severally with each of the
Selling Stockholders, and each of the Selling Stockholders, severally and not
jointly, agree to indemnify and hold harmless each Underwriter and each person,
if any, who controls such Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, against any and all losses, claims,
damages or liabilities, joint or several and actions in respect thereof, to
which such Underwriter or such controlling person may become subject, under the
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or the Prospectus or any
Preliminary Prospectus, or any amendment or supplement thereto, or any blue sky
application or other document executed by the Company specifically for the
purpose of qualifying, or based upon written information furnished by the
Company or the Selling Stockholder filed in any state or other jurisdiction in
order to qualify, any or all of the Shares under the securities or blue sky laws
thereof (any such application, document or information being hereinafter called
a "Blue Sky Application"), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements not misleading and will reimburse, such
Underwriter or such controlling persons for any legal or other expenses incurred
by such Underwriter or such controlling persons in connection with
investigating, defending or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action; provided, however, that
the Company and such Selling Stockholder will not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
<PAGE>
alleged omission made in any of such documents in reliance upon and in
conformity with information furnished in writing to the Company on behalf of
such Underwriter through the Representative expressly for use therein, and
provided, further, that such indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage, liability or action purchased Shares which are the
subject thereof to the extent that any such loss, claim, damage, liability or
action (i) results from the fact that such Underwriter failed to send or give a
copy of the Prospectus (as amended or supplemented) to such person at or prior
to the confirmation of the sale of such Shares to such person in any case where
such delivery is required by the Act and (ii) arises out of or is based upon an
untrue statement or omission of a material fact contained in such Preliminary
Prospectus that was corrected in the Prospectus (as amended and supplemented),
unless such failure resulted from non-compliance by the Company with Section
5(a)(viii) hereof; and provided further, that the liability of any Selling
Stockholder under this Section 8(a) and 8(d) shall be limited to the amount of
proceeds received by such Selling Stockholder from the sale of the Selling
Stockholder Shares.
The indemnity agreement in this paragraph (a) shall be in
addition to any liability which the Company and the Selling Stockholders may
otherwise have.
(b) Each of the Underwriters agrees severally, but not
jointly, to indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the Registration Statement, each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act and each Selling Stockholder against any and all losses,
claims, damages or liabilities (and actions in respect thereof) to which the
Company or any such Selling Stockholder, director, officer, or controlling
person may become subject, under the Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto or in any Blue Sky Application, or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
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 information furnished in writing by
that Underwriter through the Representative to the Company expressly for use
therein; and will reimburse, as incurred, all legal or other expenses reasonably
incurred by the Company or any such Selling Stockholder, director, officer,
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action. The indemnity agreement contained in this
subsection (b) shall be in addition to any liability which the Underwriters may
otherwise have.
<PAGE>
(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 one or more
indemnifying parties under this Section 8, notify such indemnifying party or
parties of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a) or (b) of this Section
8 or to the extent that the indemnifying party was not adversely affected by
such omission. In case any such action is brought against an indemnified party
and it notifies an indemnifying party or parties of the commencement thereof,
the indemnifying party or parties against which a claim is to be made will be
entitled to participate therein and, to the extent that it or they may wish, to
assume the defense thereof, with counsel reasonably 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 counsel for
the indemnified party has reasonably concluded that there may be a conflict of
interest between the indemnified parties, on the one hand, and the indemnifying
parties on the other hand, the indemnified party or parties shall have the right
to select one separate counsel to assume such legal defenses and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
(other than the reasonable costs of investigation) subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party has employed such counsel as a result of a conflict of
interest in accordance with the proviso to the immediately preceding sentence,
(ii) the indemnifying party has not employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity is or could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional and
complete release in writing of such indemnified party from any and all liability
on claims that are the subject matter of such proceeding, which settlement shall
be in form and substance reasonably satisfactory to the indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
<PAGE>
actions in respect thereof) (i) in such proportion as is appropriate to reflect
the relative benefits received by each of the contributing parties, on the one
hand, and the party to be indemnified, on the other hand, from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of each of the contributing parties, on the one hand, and the party to be
indemnified, on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. In any case where the Company and/or
any Selling Stockholder are contributing parties and the Underwriters are the
indemnified party, the relative benefits received by the Company and/or the
Selling Stockholders, on the one hand, and the Underwriters, on the other hand,
shall be deemed to be in the same proportion as the total net proceeds from the
offering and sale of the Shares (before deducting expenses) received by the
Company and the Selling Stockholders, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters on the other
hand, bears to the total price to the public of the Shares, in each case as set
forth in the table on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Stockholders or by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this paragraph (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), the Underwriters shall not
be required to contribute any amount in excess of the underwriting discount
applicable to the Shares purchased by the Underwriters hereunder. The
Underwriters' obligations to contribute pursuant to this paragraph (d) are
several in proportion to their respective underwriting obligations, and not
joint. 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. For purposes of this
paragraph (d), (i) 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 (ii) each director of
the Company, each officer of the Company who has 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 and each of the
Selling Stockholders shall have the same rights to contribution as the Company,
subject in each case to this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect to which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission so to
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation (x) it or they may have
hereunder or otherwise than under this paragraph (d) or (y) to the extent that
such party or parties were not adversely affected by such omission. The
contribution agreement set forth above shall be in addition to any liabilities
which any indemnifying party may otherwise have.
<PAGE>
(e) For purposes of this Section 8 as well as Section
2(a)(ii), the Company and the Selling Stockholders acknowledge that the
statements with respect to the public offering of the Shares set forth under the
heading "Underwriting" and the stabilization legend in the Prospectus have been
furnished by the Underwriters to the Company expressly for use therein and
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in the Prospectus.
9. Right to Increase Offering.
(a) At any time during a period of 30 days from the date of
the Prospectus, the Representative, by no less than two business days' prior
notice to the Company and the Selling Stockholders, may designate a closing
(which may be concurrent with, and part of, the closing on the Closing Date with
respect to the Firm Shares or may be a second closing held on a date subsequent
to the Closing Date, in either case such date shall be referred to herein as the
"Option Closing Date") at which the Underwriters may purchase all or less than
all of the Additional Shares in accordance with the provisions of this Section 9
at the purchase price per share to be paid for the Firm Shares. In no event
shall the Option Closing Date be later than 10 business days after written
notice of election to purchase Additional Shares is given.
(b) The Company and the Selling Stockholders agree, severally
and not jointly, to sell to the several Underwriters the respective numbers of
Additional Shares obtained by multiplying the number of Shares specified in such
notice by a fraction, of which the numerator is in the case of the Company, the
maximum number of Additional Shares offered by it, and, in the case of each of
the Selling Stockholders, the number of shares set forth opposite the name of
each Selling Stockholder set forth in Column (2) of Schedule II hereto, and the
denominator is the total number of Additional Shares (subject to adjustment by
you to eliminate fractions). Such Additional Shares shall be purchased from the
Company and each Selling Stockholder for the account of each Underwriter in the
same proportion as the number of Firm Shares set forth opposite the name of such
Underwriter in Column (3) of Schedule I bears to the total number of Firm Shares
(subject to adjustment by you to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Shares.
(c) No Additional Shares shall be sold or delivered unless the
Firm Shares previously have been, or simultaneously are, sold and delivered. The
right to purchase the Additional Shares or any portion thereof may be
surrendered and terminated at any time upon notice by you to the Company and the
Selling Stockholders.
<PAGE>
(d) Except to the extent modified by this Section 9, all
provisions of this Agreement relating to the transactions contemplated to occur
on the Closing Date for the sale of the Firm Shares shall apply, mutatis
mutandis, to the Option Closing Date for the sale of the Additional Shares.
10. Representations, etc. to Survive Delivery. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers, the Selling Stockholders and
the Underwriters, respectively, set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of the Underwriters, and will survive delivery of and payment for the
Shares. Any successors to the Underwriters shall be entitled to the indemnity,
contribution and reimbursement agreements contained in this Agreement.
11. Effective Date and Termination.
(a) This Agreement shall become effective at 11:00 A.M., New
York time on the first business day following the date hereof, or at such
earlier time after the Registration Statement becomes effective as the
Representative, in its sole discretion, shall release the Shares for the sale to
the public unless prior to such time the Representative shall have received
written notice from the Company that it elects that this Agreement shall not
become effective, or the Representative shall have given written notice to the
Company that the Representative on behalf of the Underwriters elects that this
Agreement shall not become effective; provided, however, that the provisions of
this Section and of Section 6 and Section 8 hereof shall at all times be
effective. For purposes of this Section 11(a), the Shares to be purchased
hereunder shall be deemed to have been so released upon the earlier of
notification by the Representative to securities dealers releasing such Shares
for offering or the release by the Representative for publication of the first
newspaper advertisement which is subsequently published relating to the Shares.
(b) This Agreement (except for the provisions of Sections 6
and 8 hereof) may be terminated by the Representative by notice to the Company
and the Attorney-in-Fact in the event that the Company or any of the Selling
Stockholders has failed to comply in any respect with any of the provisions of
this Agreement required on its parts to be performed at or prior to the Closing
Date or the Option Closing Date, or if any of the representations or warranties
of the Company or the Selling Stockholders are not accurate in any respect or if
the covenants, agreements or conditions of, or applicable to the Company or the
Selling Stockholders herein contained have not been complied with in any respect
or satisfied within the time specified on the Closing Date or the Option Closing
Date, respectively, or if prior to the Closing Date or the Option Closing Date:
<PAGE>
(i) the Company or any of its subsidiaries shall have
sustained a loss by strike, fire, flood, accident or other calamity of such a
character as to interfere materially with the conduct of the business and
operations of the Company and its Subsidiaries takes as a whole regardless of
whether or not such loss was insured;
(ii) trading in the Common Stock shall have been
suspended by the Commission or the National Association of Securities Dealers
Automated Quotations National Market System or trading in securities generally
on the New York Stock Exchange or the National Association of Securities Dealers
Automated Quotations National Market System shall have been suspended or a
material limitation on such trading shall have been imposed or minimum or
maximum prices shall have been established on any such exchange or market
system;
(iii) a banking moratorium shall have been declared
by New York or United States authorities;
(iv) there shall have been an outbreak or escalation
of hostilities between the United States and any foreign power or an outbreak or
escalation of any other insurrection or armed conflict involving the United
States; or
(v) there shall have been a material adverse change
in (A) general economic, political or financial conditions or (B) the present or
prospective business or condition (financial or other) of the Company and its
subsidiaries taken as a whole that, in each case, in the Representative's
judgment makes it impracticable or inadvisable to make or consummate the public
offering, sale or delivery of the Company's Shares on the terms and in the
manner contemplated in the Prospectus and the Registration Statement.
(c) Termination of this Agreement under this Section 11 or
Section 12 after the Firm Shares have been purchased by the Underwriters
hereunder shall be applicable only to the Additional Shares. Termination of this
Agreement shall be without liability of any party to any other party other than
as provided in Sections 6 and 8 hereof.
12. Substitution of Underwriters. If one or more of the Underwriters
shall fail or refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7 or 11 hereof) to
purchase and pay for (a) in the case of the Closing Date, the number of Firm
Shares agreed to be purchased by such Underwriter or Underwriters upon tender to
you of such Firm Shares in accordance with the terms hereof or (b) in the case
of the Option Closing Date, the number of Additional Shares agreed to be
purchased by such Underwriter or Underwriters upon tender to you of such
Additional Shares in accordance with the terms hereof, and the number of such
Shares shall not exceed 10% of the Firm Shares or Additional Shares required to
be purchased on the Closing Date or the Option Closing Date, as the case may be,
then, each of the non-defaulting Underwriters shall purchase and pay for (in
addition to the number of such Shares which it has severally agreed to purchase
hereunder) that proportion of the number of Shares which the defaulting
Underwriter or Underwriters shall have so failed or refused to purchase on such
Closing Date or Option Closing Date, as the case may be, which the number of
Shares agreed to be purchased by such non-defaulting Underwriter bears to the
aggregate number of Shares so agreed to be purchased by all such non-defaulting
Underwriters on such Closing Date or Option Closing Date, as the case may be. In
such case, you shall have the right to postpone the Closing Date or the Option
Closing Date, as the case may be, to a date not exceeding seven full business
days after the date originally fixed as such Closing Date or the Option Closing
Date, as the case may be, pursuant to the terms hereof in order that any
necessary changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be made.
<PAGE>
If one or more of the Underwriters shall fail or refuse (otherwise than
for a reason sufficient to justify the termination of this Agreement under the
provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the case of
the Closing Date, the number of Firm Shares agreed to be purchased by such
Underwriter or Underwriters upon tender to you of such Firm Shares in accordance
with the terms hereof or (b) in the case of the Option Closing Date, the number
of Additional Shares agreed to be purchased by such Underwriter or Underwriters
upon tender to you of such Additional Shares in accordance with the terms
hereof, and the number of such Shares shall exceed 10% of the Firm Shares or
Additional Shares required to be purchased by all the Underwriters on the
Closing Date or the Option Closing Date, as the case may be, then (unless within
48 hours after such default arrangements to your satisfaction shall have been
made for the purchase of the defaulted Shares by an Underwriter or Underwriters)
and subject to the provisions of Section 11(b) hereof, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or on
the part of the Company or the Selling Stockholders except as otherwise provided
in Sections 6 and 8 hereof. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this paragraph. Nothing
in this Section 12, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
13. Notices. All communications hereunder shall be in writing and if
sent to the Representative shall be mailed or delivered or telegraphed and
confirmed by letter or telecopied and confirmed by letter to c/o Hobbs Melville
Securities Corp. at 110 Wall Street, New York, New York 10005, Attention: Conrad
Huss, or, if sent to the Company, shall be mailed or delivered or telegraphed
and confirmed to the Company at 510 East 35th Street, Paterson, New Jersey
07543, Attention: Mark Cocchiola, or if sent to the Selling Stockholders, shall
be mailed or delivered or telegraphed and confirmed by letter or telecopied and
confirmed by letter to Mark Cocchiola, Steven Venechanos and Paul Lauriero, 510
East 35th Street, Paterson, New Jersey 07543 with a copy to Blank Rome Tenzer
Greenblatt LLP, 405 Lexington Avenue, New York, New York 10174, attention:
Robert J. Mittman, Esq.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Company, the Selling Stockholders, and each Underwriter as well
as the Company's, each Selling Stockholder's and each Underwriter's 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 the
representations, warranties, indemnities and contribution agreements of the
Company and the Selling Stockholders contained in this Agreement shall also be
for the benefit of any person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and except that the Underwriters' indemnity and contribution agreements shall
also be for the benefit of the directors of the Company, the officers of the
Company who have signed the Registration Statement, any person or persons, if
any, who control the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and the Selling Stockholders. No purchaser of
Shares from the Underwriters will be deemed a successor because of such
purchase.
15. Applicable Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to the choice of law or conflict of law principles thereof. Each
party hereto consents to the jurisdiction of each court in which any action is
commenced seeking indemnity or contribution pursuant to Section 8 above and
agrees to accept, either directly or through an agent, service of process of
each such court.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
<PAGE>
If the foregoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
Very truly yours,
SUPREMA SPECIALTIES, INC.
By:__________________________
Name:
Title:
SELLING STOCKHOLDERS
By:__________________________
As Attorney-in-Fact for
the Selling Stockholders named in
Schedule II hereto
<PAGE>
Accepted as of the date first above written:
HOBBS MELVILLE SECURITIES CORP.
By: HOBBS MELVILLE SECURITIES CORP.
Acting on its own behalf and as
the Representative
of the several Underwriters
referred to in the foregoing Agreement
By: ___________________________
Title: ________________________
<PAGE>
SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated May __, 2000
<TABLE>
<CAPTION>
(1) (2) (3)
Number of Firm Number of Firm Aggregate
Shares to be Shares to be Number of
Purchased from Purchased from Firm Shares
the Company the Selling Stockholders to be Purchased
----------- ------------------------ ---------------
<S> <C> <C> <C>
Name and Address
----------------
Hobbs Melville Securities Corp.
Total 1,000,000 100,000 1,100,000
</TABLE>
<PAGE>
SCHEDULE II
SELLING STOCKHOLDERS
(1) (2)
Maximum Number of
Name and Address of Additional Shares
Selling Stockholder Firm Shares to be Sold to be Sold
------------------- ---------------------- -----------------
Mark Cocchiola 50,000 50,000
Paul Lauriero 50,000 50,000
Total 100,000 100,000
<PAGE>
EXHIBIT A
WARRANT
<PAGE>
EXHIBIT B
OPINION OF COMPANY'S COUNSEL
<PAGE>
EXHIBIT C
OPINION OF SELLING STOCKHOLDERS' COUNSEL
