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, CENTENE CORPORATION By: ---------------------------- Name: Title: The Selling Stockholders named in Schedule B hereto, acting severally By: ---------------------------- Attorney-in-Fact Accepted as of the date hereof Thomas Weisel Partners LLC SG Cowen Securities Corporation CIBC World Xxxxxxs Xxxx. Acting severxxxx xx behalf of themselves and the several Underwriters named in Schedule A hereto. By: Thomas Weisel Partners LLC By: ----------------------------- Name: Title: SCHEDULE A NUMBER OF FIRM SHARES UNDERWRITER TO BE PURCHASED ----------- --------------- Thomas Weisel Partners LLC SG Cowen Securities Corporation CIBC World Xxxxxxs Xxxx. Total 5,000,000 SCHEDULE B MAXIMUM NUMBER OF NUMBER OF FIRM SHARES ADDITIONAL SELLING STOCKHOLDER TO BE SOLD SHARES ------------------- ------------- ------------- Greylock Limited Partnership 1,853,831 273,968 Strategic Investment Partners Ltd. 1,742,487 257,513 Cahill, Warnock Strategic Partners Fund, L.P. 825,503 000,007 Strategic Associates, L.P. 45,740 6,760 Robert Johannes 82,867 00,006 JP Morgan Securities, Inc. 33,605 4,966 William Jollie 13,907 0,055 Shelly Stewart 2,000 -- Elaine Laverenz 60 -- ------------- ------------- Total 4,600,000 679,505 ============= ============= EXHIBIT A FORM OF LEGAL OPINION OF COMPANY COUNSEL
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.
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, CYSIVE, INC. By: ---------------------------------- Name: Title: Accepted as of the date hereof Thomxx Xxxsxx Xxxtners LLC First Union Capital Markets Corp. Friedman, Billings, Ramsxx & Xo., Inc. Acting severally on behalf of themselves and the several Underwriters named in Schedule A hereto. By: Thomxx Xxxsxx Xxxtners LLC By: -------------------------------------- Name: Title:
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.
