The Company and Mr. Xxxxx X. Xxx, a Selling Stockholder, jointly and severally represent and warrant to, and agree with, each International Underwriter as set forth below in this Section 1A.
(a) The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (file number 333-37235) on Form S-1, including the related Offering Preliminary Prospectuses, for the registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, including the related Offering Preliminary Prospectuses, each of which has previously been furnished to you. The Company will next file with the Commission either (i) prior to effectiveness of the Offering Registration Statement, a further amendment to the Offering Registration Statement (including the form of Offering Prospectuses) or (ii) after effectiveness of the Offering Registration Statement, the Offering Prospectuses in accordance with Rules 430A and 424(b)(1) or (4). In the case of clause (ii), the Company has included in the Offering Registration Statement all information (other than Rule 430A Information) required by the Act and the rules thereunder to be included in the Offering Registration Statement and the Offering Prospectuses. As filed, such amendment and form of Offering Prospectuses, or such Offering Prospectuses, shall contain all Rule 430A Information, together with all other such required information, and, except to the extent the International Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest Offering International Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. It is understood that two forms of prospectus are to be used in connection with the offering and sale of the Securities: one form of prospectus relating to the International Securities, which are to be offered and sold to persons other than United States and Canadian Persons, and one form of prospectus relating to the U.S. Securities, which are to be offered and sold to United States and Canadian Persons. The two forms of prospectus are identical except for the outside front cover page, the inside front cover page, the discussion under ...
The Company and Mr. Xxxxx X. Xxx jointly and severally agree to indemnify and hold harmless each International Underwriter (including without limitation SBI (the "Market Maker") in its capacity as a market maker for the Securities and SBI (the "Independent Underwriter") in its capacity as "qualified independent underwriter" (within the meaning of NASD Conduct Rule 2720)), the directors, officers, employees and agents of each International Underwriter, and each person who controls any International Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Offering Registration Statement or in any amendment thereof, or in any Offering Preliminary Prospectus or in either of the Offering Prospectuses, or in any amendment thereof or supplement thereto, 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 therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company and Mr. Xxxxx X. Xxx will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any International Underwriter through the International Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company or Mr. Xxxxx X. Xxx xxx xxxerwise have.
The Company and Mr. Xxxxxx xxxee to treat Mr. Xxxxxx'x xxxignation of his employment with the Company on the Effective Date as a termination under Section 6.4 of the employment agreement between Mr. Xxxxxx xxx the Company dated May 27, 1997 (the "Employment Agreement") and, therefore, the obligations of the Company to make any further payments or provide any benefits under the Employment Agreement shall hereby cease and terminate .
The Company and Mr. Xxxxx X. Xxx shall not have any liability under this Section 8 with respect to any losses, claims, damages or liabilities of a U.S. Underwriter if copies of the Offering U.S. Prospectus, as then amended or supplemented, were furnished by the Company to the U.S. Underwriters as required by this Agreement, and such copies of the Offering U.S. Prospectus were not sent or given by or on behalf of such U.S. Underwriter, as required by law, to the purchasers of the U.S. Securities and if the Offering U.S. Prospectus, as so amended or supplemented, would have cured the defect giving rise to such losses, claims, damages or liabilities.
The Company and Mr. Olvey agree that neithex xxx xxgotiation or signing of this Agreement shall constitute an admission by the Company that it has acted wrongfully with respect to Mr. Olvey or any other perxxx xx xxat Mr. Olvey has any rights whxxxxxxxx against the Company. The Company specifically disclaims any liability to, or wrongful acts against, Mr. Olvey or any other persxx, xx xxe part of itself, its directors, officers, employees, and agents, and Mr. Olvey disclaims any lixxxxxxx xo, or wrongful or unlawful conduct against, the Company.
The Company and Mr. Xxxxxx xxxeby acknowledge and agree that this Agreement supersedes any prior agreements.
The Company and Mr. Ervine agree to submit to final and binding arbitration any and xxx xxxxxtes or disagreements concerning the interpretation or application of this Agreement. Any such dispute or disagreement will be resolved by arbitration before a single arbitrator in accordance with the Arbitration Rules of the American Arbitration Association (the "AAA Rules"). Arbitration will take place in Washington, DC, unless the parties mutually agree to a different location. The arbitrator shall be chosen in accordance with the AAA Rules. The arbitrator shall be bound to apply the provisions of applicable substantive law and the Federal Rules of Evidence to any dispute under this Agreement; provided, however, that punitive, liquidated or indirect damages shall not be awarded by the arbitrator. The arbitrator shall have the power to decide the claim upon motion of the parties, without necessity of an oral arbitration evidentiary hearing, if the parties agree in writing to waive such hearing or if either party submits a motion requesting a hearing on documents only. The arbitrator shall render a written reasoned opinion. Mr. Ervine and the Company agree that the decision of the arbitratox xxxx xx final and binding on both parties. Any court having jurisdiction may enter a judgment upon the award rendered by the arbitrator. If the arbitration is decided in whole or in part in favor of Mr. Ervine, the Company will reimburse Mr. Ervine for his reasonablx xxxxx xxd expenses of the arbitration (xxxxxxxxg reasonable attorneys' fees). Regardless of the outcome of any arbitration, the Company will pay all fees and expenses of the arbitrator and all of Company's costs of such arbitration.
The Company and Mr. Raja shall provide the Buyer with a legal opinion from a law firm acceptable to the Buyer which covers the resale of the Pledged Shares by the Buyer
The Company and Mr. Xxxxxx ----------------------------------- Xxxxxxxxx and the Company and Mr. Xxxxxxx Xxxx shall have duly executed and delivered to the Purchasers the Severance and Noncompete Agreements attached hereto as Exhibit F. ---------
The Company and Mr. Xxxxx X. Xxx shall not have any liability under this Section 8 with respect to any losses, claims, damages or liabilities of an International Underwriter if copies of the Offering International Prospectus, as then amended or supplemented,
