Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who or which was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any Preliminary Prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, NUTRISYSTEM, INC. By: Name: Title: The Selling Stockholders named in Schedule B hereto (other than Nestlé USA, Inc.), acting severally By: Name: Title: Attorney-In-Fact NESTLÉ USA, INC. By: Name: Title: Accepted as of the date hereof Xxxxxx Xxxxxx Partners LLC Xxxx Xxxxx Xxxx Xxxxxx, Incorporated The Xxxxxxx Companies Incorporated Avondale Partners, LLC Acting severally on behalf of themselves and as representative of the several Underwriters named in Schedule A hereto. By: Xxxxxx Xxxxxx Partners LLC By: Name: Title: Schedules A List of Underwriters B List of Selling Stockholders C List of Subsidiaries Exhibits A Form of Legal Opinion of Company Counsel B Form of Legal Opinion of Counsel for Selling Stockholders (other than Nestlé USA, Inc.) C Form of Legal Opinion of Counsel for Nestlé USA, Inc. D Form of Lock-Up Agreement SCHEDULE A Underwriter Number of Firm Shares To Be Purchased Xxxxxx Xxxxxx Partners LLC [·] Xxxx Xxxxx Xxxx Xxxxxx, Incorporated [·] The Xxxxxxx Companies Incorporated [·] Avondale Partners, LLC [·] Boenning & Scattergood, Inc. [·] Xxxxx Xxxxxxxx, Inc. [·] Total SCHEDULE B Selling Stockholder Number of Firm Shares To Be Sold Xxxxxxx X. Xxxxx* 200,000 Xxxxxx Xxxxxxxx* 300,000 Xxxxx X. Xxxxx* 35,000 Eastern Technology Fund L.P 62,500 New Spring Ventures L.P 1,750,000 The Xxxxxx Foundation 80,000 Nestlé USA, Inc. 900,000 Total 3,327,500 * Selling Officer SCHEDULE C LIST OF SUBSIDIARIES Wholly-owned...
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 7, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 7 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
Sophisticated Parties. Each Party to this Agreement is a sophisticated business party negotiating in good faith with the advice of legal counsel.
Sophisticated Parties. 20 21. Information Furnished by the Underwriters............................................. 20 SCHEDULE A - List of Underwriters EXHIBIT A - Form of Legal Opinion of Company Counsel EXHIBIT B - Form of Legal Opinion of Intellectual Property Counsel EXHIBIT C - Form of Lock-Up Agreement _____________, 2004 Xxxxxx Xxxxxx Partners LLC Xxxxx Xxxxxxx & Co. Xxxxxxx Xxxxx & Associates, Inc. As Representatives of the several Underwriters c/o Thomas Xxxxxx Partners LLC Xxx Xxxxxxxxxx Xxxxxx, Suite 3700 San Francisco, California 94104 Ladies and Gentlemen: Introduction. Phase Forward Incorporated, a Delaware corporation (the "COMPANY"), proposes to issue and sell to the several underwriters named in Schedule A hereto (the "UNDERWRITERS") an aggregate of 8,330,000 shares of the Common Stock, par value $0.01 per share, of the Company (the "FIRM SHARES"). The Company also proposes to issue and sell to the several Underwriters not more than an additional 1,249,500 shares of its common stock par value $0.01 per share (the "ADDITIONAL SHARES"), if and to the extent that you shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the "SHARES". The shares of Common Stock, par value $0.01 per share, of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the "COMMON STOCK". Xxxxxx Xxxxxx Partners LLC ("XXXXXX XXXXXX PARTNERS"), Xxxxx Xxxxxxx & Co. and Xxxxxxx Xxxxx & Associates, Inc. have agreed to act as representatives of the several Underwriters (in such capacity, the "REPRESENTATIVES") in connection with the offering and sale of the Shares. The Company has filed with the Securities and Exchange Commission (the "COMMISSION") a registration statement on Form S-1 (file no. 333-113594), including a prospectus, relating to the Shares. The registration statement as amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS". If the Company has filed a registration statement...
Sophisticated Parties. Each of the parties acknowledges and agrees that this Agreement has been diligently reviewed by and negotiated by and between them, that in such negotiations each of them has been represented by competent counsel and that the final agreement contained herein, including the language whereby it has been expressed, represents the joint efforts of the parties hereto and their counsel. Accordingly, in interpreting this Agreement or any provision hereof, no presumption shall apply against either party hereto as being responsible for the wording or drafting of this Agreement or any such provision, and ambiguities, if any, in this Agreement shall not be construed against any party , irrespective of which party may be deemed to have authored the ambiguous provision.
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. VERY TRULY YOURS, CACHE, INC. By: Name: Title: The Selling Shareholders named in Schedule B hereto, acting severally By: Attorney-in-Fact Accepted as of the date hereof XXXXXX XXXXXX PARTNERS LLC US BANCORP XXXXX XXXXXXX INC. XX XXXXX SECURITIES CORPORATION Acting severally on behalf of themselves and the several Underwriters named in Schedule A hereto. By: Xxxxxx Xxxxxx Partners LLC By: Name: Title: EXHIBIT A Form of Legal Opinion of Company Counsel
Sophisticated Parties. This Agreement is among financially sophisticated and knowledgeable Persons and is entered into by such Persons in reliance upon the economic and legal bargains contained herein and shall be interpreted and construed in a fair and impartial manner without regard to such factors as the Person who prepared, or cause the preparation of, this Agreement or the relative bargaining power of such Persons. Subject to applicable law, wherever in this Agreement a Stockholder is empowered to take or make a decision, direction, consent, vote, determination, election, action or approval, such Stockholder is entitled to consider, favor and further such interests and factors as it desires, including its own interests, and has no duty or obligation to consider, favor or further any other interest of the Company, any subsidiary or any other Stockholder.
Sophisticated Parties. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification and contribution provisions of Section 8, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 8 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus, the Time of Sale Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
Sophisticated Parties. They are sophisticated parties and have such knowledge and experience in business and financial matters that such party is capable of evaluating the risks and merits of that transaction and the results of the consummation thereof and of making an informed decision regarding the consummation of that transaction.
Sophisticated Parties. The parties acknowledge that each of them has been represented by counsel in the preparation and negotiation of this Agreement, that each of them is sophisticated in the transactions described herein and that there shall be no presumption against any party drafting this Agreement or the Loan Documents in the interpretation or construction of any of the terms thereof.
