EXHIBIT 1.1
Draft of July 15, 2005
4,800,000 Shares
UNICA CORPORATION
Common Stock
($0.01 Par Value)
EQUITY UNDERWRITING AGREEMENT
____________, 2005
Deutsche Bank Securities Inc.
Wachovia Capital Markets, LLC
CIBC World Markets Corp.
Xxxxxxx & Company, LLC
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Unica Corporation, a Delaware corporation (the "Company"), and certain
shareholders of the Company (the "Selling Shareholders") propose to sell to the
several underwriters (the "Underwriters") named in Schedule I hereto for whom
you are acting as representatives (the "Representatives") an aggregate of
4,800,000 shares of the Company's Common Stock, $0.01 par value (the "Firm
Shares"), of which 3,750,000 shares will be sold by the Company and 1,050,000
shares will be sold by the Selling Shareholders. The respective amounts of the
Firm Shares to be so purchased by the several Underwriters are set forth
opposite their names in Schedule I hereto, and the respective amounts to be sold
by the Selling Shareholders are set forth opposite their names in Schedule II
hereto. The Company and the Selling Shareholders are sometimes referred to
herein collectively as the "Sellers." The Company also proposes to sell at the
Underwriters' option an aggregate of up to 720,000 additional shares of the
Company's Common Stock (the "Option Shares") as set forth below.
As the Representatives, you have advised the Company and the Selling
Shareholders (a) that you are authorized to enter into this Agreement on behalf
of the several Underwriters, and (b) that the several Underwriters are willing,
acting severally and not jointly, to purchase the numbers
of Firm Shares set forth opposite their respective names in Schedule I, plus
their pro rata portion of the Option Shares if you elect to exercise the
over-allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDERS.
(a) The Company represents and warrants to each of the Underwriters
as follows:
(i) A registration statement on Form S-1 (File No. 333-120615)
with respect to the Shares has been prepared by the Company in conformity in all
material respects with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission. The Company and the transactions contemplated by
this Agreement meet the requirements and comply with the conditions for the use
of Form S-1. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting in all material respects, at the
time of filing thereof, the requirements of the Rules and Regulations) contained
therein and the exhibits and financial statements thereto, as finally amended
and revised, have heretofore been delivered by the Company to you. Such
registration statement, together with any registration statement filed by the
Company pursuant to Rule 462(b) of the Act, is herein referred to as the
"Registration Statement," which shall be deemed to include all information
omitted therefrom in reliance upon Rule 430A and contained in the Prospectus
referred to below, has become effective under the Act and no post-effective
amendment to the Registration Statement has been filed as of the date of this
Agreement. "Prospectus" means the form of prospectus first filed with the
Commission pursuant to Rule 424(b). Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective is herein referred
to as a "Preliminary Prospectus." Any reference herein to the Registration
Statement, any Preliminary Prospectus or to the Prospectus or to any amendment
or supplement to any of the foregoing documents shall be deemed to refer to and
include any supplements or amendments thereto, filed with the Commission after
the date of filing of the Prospectus under Rules 424(b) or 430A, and prior to
the termination of the offering of the Shares by the Underwriters.
(ii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement. Each of the
subsidiaries of the Company as listed in Exhibit 21.1 to Item 16(a) of the
Registration Statement (collectively, the "Subsidiaries") has been duly
organized and is validly existing under the laws of the jurisdiction of its
organization as an entity of the type specified in such Exhibit 21.1 and is in
good standing under such laws (to the extent such status exists under such
laws), with corporate or similar power and authority to own or lease its
properties and conduct its business as described in the Registration Statement.
The Subsidiaries are the only subsidiaries,
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direct or indirect, of the Company. The Company and each of the Subsidiaries are
duly qualified to transact business in all jurisdictions in which the conduct of
their business requires such qualification, except for such jurisdictions where
the failure to so qualify would not, individually or in the aggregate, result in
any material adverse change in the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company or its Subsidiaries, taken together as a whole (a "Material Adverse
Change"). The outstanding shares of capital stock or other ownership interests
of each of the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable (to the extent such status exists under the laws
of the jurisdictions in which the Subsidiaries are organized) and are owned by
the Company or another Subsidiary free and clear of all liens, encumbrances and
equities and claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
(iii) The outstanding shares of Common Stock of the Company,
including all Shares to be sold by the Selling Shareholders, have been duly
authorized and validly issued and are fully paid and non-assessable; the portion
of the Shares to be issued and sold by the Company have been duly authorized and
when issued and paid for as contemplated herein will be validly issued, fully
paid and non-assessable; and no preemptive rights of stockholders exist with
respect to any of the Shares or the issue and sale thereof. 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 or satisfied, for or relating to the registration of any shares
of Common Stock of the Company.
(iv) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. All of the Shares
conform to the description thereof contained in the Registration Statement. The
form of certificates for the Shares conforms to the corporate law of the
jurisdiction of the Company's incorporation. Except as described in or
contemplated by the Prospectus, there are no outstanding securities of the
Company convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and there are no
outstanding or authorized options, warrants or rights of any character
obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock.
(v) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Shares nor instituted proceedings for that purpose. The Registration Statement
contains, and the Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein by, and will
conform to, the requirements of the Act and the Rules and Regulations. The
Registration Statement and any amendment thereto do not contain, and will not
contain, any untrue statement of a material fact and do not omit, and will not
omit, to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any amendments
and supplements thereto do not contain, and will not contain, any untrue
statement of material fact; and do not omit, and will not omit, to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to
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information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
any Underwriter through the Representatives, specifically for use in the
preparation thereof.
(vi) Each material contract, agreement and license filed as an
exhibit to the Registration Statement to which the Company or any of its
Subsidiaries is bound is legal, valid, binding, enforceable and in full force
and effect against the Company or such Subsidiary, and to the knowledge of the
Company, each other party thereto, except to the extent such enforceability is
subject to (i) laws of general application relating to bankruptcy, insolvency,
moratorium and the relief of debtors and (ii) the availability of specific
performance, injunctive relief and other equitable remedies. Neither the Company
nor any of its Subsidiaries nor, to the Company's knowledge, any other party is
in material breach or default with respect to any such contract, agreement or
license, and, to the Company's knowledge, no event has occurred which with
notice or lapse of time would constitute a material breach or default, or permit
termination, modification, or acceleration, under any such contract, agreement
or license. No party has repudiated any material provision of any such contract,
agreement or license.
(vii) The statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from sources
which the Company reasonably and in good faith believes are reliable and
accurate, and such data agree, in all material respects, with the sources from
which they are derived.
(viii) The consolidated financial statements of the Company
and the Subsidiaries, together with related notes as set forth in the
Registration Statement, present fairly the financial position and the results of
operations and cash flows of the Company and the consolidated Subsidiaries, at
the indicated dates and for the indicated periods. Such financial statements
have been prepared in accordance with generally accepted principles of
accounting, consistently applied throughout the periods involved, except as
disclosed therein, and all adjustments necessary for a fair presentation of
results for such periods have been made. The summary financial data included in
the Registration Statement present fairly, on the basis stated in the
Registration Statement, the information shown therein and such data have been
compiled on a basis consistent with the financial statements presented therein
and the books and records of the Company. No financial schedules are required to
be filed by the Company pursuant to Item 16(b) of Part II of the Registration
Statement. To the knowledge of the Company, no person who has been suspended or
barred from being associated with a registered public accounting firm, or who
has failed to comply with any sanction pursuant to Rule 5300 promulgated by the
Public Company Accounting Oversight Board ("PCAOB"), has participated in or
otherwise aided the preparation of, or audited, the financial statements or
other financial data filed with the Commission as part of the Registration
Statement and included in the Prospectus. The pro forma financial data included
under "Summary Consolidated Financial Data" and "Selected Consolidated Financial
Data" in the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the applicable
rules and guidelines of the Commission, and have been properly determined on the
pro forma bases described therein. The pro forma financial information set forth
in the financial statements included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and
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guidelines with respect to pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and, in the opinion of the
Company, the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(ix) To the Company's knowledge, Xxxxx & Young LLP, who have
certified certain of the financial statements filed with the Commission as part
of the Registration Statement, are (i) independent public accountants as
required by the Act and the Rules and Regulations, (ii) in compliance with the
applicable requirements relating to the qualification of accountants under rule
2-01 of Regulation S-X under the Act and (iii) a registered public accounting
firm as defined by the PCAOB whose registration has not been suspended or
revoked and who has not requested such registration to be withdrawn.
(x) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or any of the
Subsidiaries before any court or administrative agency or otherwise which if
determined adversely to the Company or any of its Subsidiaries is reasonably
likely to result in any Material Adverse Change or might prevent the
consummation of the transactions contemplated hereby, except as set forth in the
Registration Statement.
(xi) The Company and the Subsidiaries have good and valid
title to all of the properties and assets reflected in the consolidated
financial statements hereinabove described or described in the Registration
Statement, subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except those reflected in such financial statements or described in the
Registration Statement or which are not material in amount. The Company and the
Subsidiaries occupy their leased properties under valid and binding leases, with
such exceptions as are not reasonably likely to result in a Material Adverse
Change and do not materially interfere with the use made and proposed to be made
of such properties by the Company and the Subsidiaries.
(xii) The Company and the Subsidiaries have filed, or have
duly requested extension of the filing of, all Federal, State, local and foreign
tax returns which have been required to be filed and have paid all taxes
indicated by such returns and all assessments received by them or any of them to
the extent that such taxes have become due and are not being contested in good
faith and for which an adequate reserve for accrual has been established in
accordance with generally accepted accounting principles. All tax liabilities
have been adequately provided for in the financial statements of the Company,
and the Company does not know of any actual or proposed additional material tax
assessments.
(xiii) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or supplemented, there
has not been any Material Adverse Change or any development that is reasonably
likely to result in a Material Adverse Change, whether or not occurring in the
ordinary course of business, and there has not been any material transaction
entered into or any material transaction that is probable of being entered into
by the Company or the Subsidiaries, other than transactions in the ordinary
course of business and changes and transactions described in the Registration
Statement, as it may be amended or supplemented. The Company and the
Subsidiaries have no material contingent obligations which
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are required to be disclosed in the Company's financial statements which are
included in the Registration Statement, but are not so disclosed. The cash
dividend referenced under the heading "Divided Policy" (A) has been duly and
validly authorized by all necessary corporate action on the part of the Company
and its stockholders, (B) has not resulted and will not result in a breach or
violation of the terms or provisions of any material agreement, license or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company of any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (C) has
not resulted and will not result in any violation of the provisions of the
Charter or By-Laws of the Company or any of its subsidiaries and (C) has not
resulted and will not result in any material violation of any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets. The Prospectus contains a fair and accurate summary in all
material respects of such cash dividend.
(xiv) Neither the Company nor any of the Subsidiaries is or
with the giving of notice or lapse of time or both, will be, in violation of or
in default under (i) its Charter or By-Laws or (ii) under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or
by which it, or any of its properties, is bound and, solely with respect to this
clause (ii), which violation or default is reasonably likely to result in a
Material Adverse Change. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the fulfillment of the
terms hereof will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust or other agreement or instrument to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or any of their
respective properties is bound, or of the Charter or By-Laws of the Company or
any law, order, rule or regulation judgment, order, writ or decree applicable to
the Company or any Subsidiary of any court or of any government, regulatory body
or administrative agency or other governmental body having jurisdiction.
(xv) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement has been duly and validly
authorized by all necessary corporate action on the part of the Company, and
this Agreement has been duly executed and delivered by the Company.
(xvi) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the Commission
or the National Association of Securities Dealers, Inc. (the "NASD") or such
additional steps as may be necessary to qualify the Shares for public offering
by the Underwriters under State securities or Blue Sky laws) has been obtained
or made and is in full force and effect.
(xvii) The Company and each of the Subsidiaries hold all
material licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their businesses; the Company and the
Subsidiaries each own or possess the right to use all patents, patent rights,
trademarks, trade names, service marks, service names, copyrights, license
rights, know-how (including trade secrets and other unpatented and unpatentable
proprietary or
6
confidential information, systems or procedures) and other intellectual property
rights ("Intellectual Property") necessary to carry on their business in all
material respects as described in the Prospectus; neither the Company nor any of
the Subsidiaries has infringed any Intellectual Property of any other person or
entity, except for such infringement or infringements that are not reasonably
likely to result in a Material Adverse Change. The Company has taken all
reasonable steps necessary to secure interests in such Intellectual Property
from its contractors. There are no outstanding options, licenses or agreements
of any kind relating to the Intellectual Property of the Company that are
required to be described in the Prospectus and are not described in all material
respects. The Company is not a party to or bound by any options, licenses or
agreements with respect to the Intellectual Property of any other person or
entity that are required to be set forth in the Prospectus and are not described
in all material respects. None of the technology employed by the Company has
been obtained or is being used by the Company in violation of any contractual
obligation binding on the Company or any of its officers, directors or employees
or otherwise in violation of the rights of any persons; the Company has not
received any written or oral communications alleging that the Company has
violated, infringed or conflicted with, or, by conducting its business as set
forth in the Prospectus, would violate, infringe or conflict with, any of the
Intellectual Property of any other person or entity. The Company knows of no
infringement by others of Intellectual Property owned by or licensed to the
Company.
(xviii) All patent applications that resulted in the Company's
patents or pending applications that describe inventions necessary to conduct
the business of the Company and its Subsidiaries in the manner described in the
Prospectus (the "Company Patent Applications") have been duly and properly filed
or caused to be filed with the United States Patent and Trademark Office (the
"PTO") and applicable foreign and international patent authorities. In
connection with the filing of the Company Patent Applications, to the best
knowledge of the Company, all printed publications and patent references
relevant to the patentability of the inventions claimed in such applications has
been disclosed to those patent offices so requiring. To the best knowledge of
the Company, the Company has met its duty of candor and good faith to the PTO or
similar foreign authority for the Company Patent Applications. No material
misrepresentations have been made to the PTO or similar foreign authority by or
in connection with the Company Patent Applications. The Company and its
Subsidiaries are not aware or any fact material to a determination of
patentability regarding the Company Patent Applications not called to the
attention of the PTO or similar foreign authority. The Company has no knowledge
of any facts which would preclude the Company from having clear title to the
Company Patent Applications.
(xix) Neither the Company, nor to the Company's knowledge, any
of its affiliates, has taken or intends to take, directly or indirectly, any
action designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of the Company's Common Stock to facilitate the sale or
resale of the Shares. The Company acknowledges that the Underwriters may engage
in passive market making transactions in the Shares on the Nasdaq National
Market in accordance with Regulation M under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(xx) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940, as amended (the
7
"1940 Act") and the rules and regulations of the Commission thereunder or, after
giving effect to the offering and sale of the Shares contemplated hereunder and
the application of the net proceeds from such sale as described in the
Prospectus, will be required to register as an "investment company" pursuant to
the 1940 Act.
(xxi) The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals.
(xxii) The Company is not aware of (i) any significant
deficiencies or material weaknesses in the design or operation of its internal
controls over financial reporting which are reasonably likely to adversely
affect its ability to record, process, summarize and report financial
information or (ii) any fraud, whether or not material, that involves management
or other employees who have a role in the registrant's internal control over
financial reporting. The Company is not aware of any change in its internal
controls over financial reporting that has occurred since the date of the most
recent evaluation of such internal controls that has materially affected, or is
reasonably likely to materially affect, the Company's internal controls over
financial reporting.
(xxiii) The Company and each of its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses.
(xxiv) The Company and each Subsidiary is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company and each Subsidiary would have any liability; the
Company and each Subsidiary has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company or any Subsidiary would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
(xxv) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's officers,
directors or persons who beneficially own 5% or more of any class of the
Company's securities or any person who, in the six months preceding the filing
of the Registration Statement, purchased any unregistered equity securities of
the Company, except as set forth in the Registration Statement or in a
questionnaire
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that was completed by such person in connection with the registration and
offering of the Shares and a copy of which has been delivered to counsel for the
Underwriters.
(xxvi) The Company is, and will be as of the Closing Date and
the Option Closing Date (as such dates are hereinafter defined), in compliance
in all material respects with all provisions of the Xxxxxxxx-Xxxxx Act of 2002
that are applicable as of the date hereof, or will be applicable as of the
Closing Date or Option Closing Date (as the case may be), to the Company,
including any related rules and regulations promulgated by the Commission.
(b) Each of the Selling Shareholders severally represents and
warrants as follows:
(i) Such Selling Shareholder now has and at the Closing Date
will have good and valid title to the Firm Shares to be sold by such Selling
Shareholder, free and clear of any liens, encumbrances, equities and claims, and
full right, power and authority to effect the sale and delivery of such Firm
Shares; and upon the delivery of, against payment for, such Firm Shares pursuant
to this Agreement, the Underwriters will acquire good and valid title thereto,
free and clear of any liens, encumbrances, equities and claims.
(ii) Such Selling Shareholder has full right, power and
authority to execute and deliver this Agreement, the Irrevocable Power of
Attorney, and the Custody Agreement referred to below and to perform its
obligations under such agreements. The execution and delivery of this Agreement
and the consummation by such Selling Shareholder of the transactions herein
contemplated and the fulfillment by such Selling Shareholder of the terms hereof
will not require any consent, approval, authorization, or other order of any
court, regulatory body, administrative agency or other governmental body (except
as may be required under the Act, State securities laws or Blue Sky laws) and
will not result in a breach of any of the terms and provisions of, or constitute
a default under, the organizational documents of such Selling Shareholder, if
not an individual, or any indenture, mortgage, deed of trust or other agreement
or instrument to which such Selling Shareholder is a party, or of any order,
rule or regulation applicable to such Selling Shareholder of any court or of any
regulatory body or administrative agency or other governmental body having
jurisdiction.
(iii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to, or which has constituted,
or which might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any securities of the Company and, other than as
permitted by the Act, the Selling Shareholder will not distribute any prospectus
or other offering material in connection with the offering of the Shares.
(iv) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling Shareholder
expressly for use therein, such Preliminary Prospectus and the Registration
Statement did not, and the Prospectus and any further amendments or supplements
to the Registration Statement and the Prospectus, when they become effective or
are filed with the Commission, as the case may be, will not contain any untrue
statement of a material fact or omit to
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state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(v) Such Selling Shareholder has not relied upon the
Representatives or legal counsel for the Representatives for any legal, tax or
accounting advice in connection with the offering and sale of the Firm Shares.
(vi) Such Selling Shareholder is not a member of or an
affiliate of or associated with any member of the NASD, except for the
relationships of the Summit Selling Stockholders (as defined below) to
optionsXpress, Inc., which is a member of the NASD.
(vii) Certificates in negotiable form for the total number of
the Shares to be sold hereunder by such Selling Shareholder have been placed in
custody with the Company as custodian (the "Custodian") pursuant to the Custody
Agreement executed by such Selling Shareholder for delivery of all Firm Shares
to be sold hereunder by such Selling Shareholder. Such Selling Shareholder
specifically agrees that the Firm Shares represented by the certificates held in
custody for such Selling Shareholder under the Custody Agreement are subject to
the interests of the Underwriters hereunder, that the arrangements made by such
Selling Shareholder for such custody are to that extent irrevocable, and that
the obligations of such Selling Shareholder hereunder shall not be terminable by
any act or deed of such Selling Shareholder (or by any other person, firm or
corporation including the Company, the Custodian or the Underwriters) or by
operation of law (including the death of an individual Selling Shareholder or
the dissolution of a corporate Selling Shareholder) or by the occurrence of any
other event or events, except as set forth in the Custody Agreement. If any such
event should occur prior to the delivery to the Underwriters of such Firm Shares
hereunder, certificates for such Firm Shares shall be delivered by the Custodian
in accordance with the terms and conditions of this Agreement as if such event
had not occurred. The Custodian is authorized to receive and acknowledge receipt
of the proceeds of sale of such Firm Shares held by it against delivery of such
Firm Shares.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES AND THE OPTION
SHARES.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Sellers
agree to sell to the Underwriters and each Underwriter agrees, severally and not
jointly, to purchase, at a price of $_____ per Share, the number of Firm Shares
set forth opposite the name of each Underwriter in Schedule I hereof, subject to
adjustments in accordance with Section 9 hereof. The number of Firm Shares to be
purchased by each Underwriter from each Seller shall be as nearly as practicable
in the same proportion to the total number of Firm Shares being sold by each
Seller as the number of Firm Shares being purchased by each Underwriter bears to
the total number of Firm Shares to be sold hereunder. The obligations of the
Company and of each of the Selling Shareholders shall be several and not joint.
(b) Payment for the Firm Shares to be sold hereunder is to be made
in Federal (same day) funds to an account designated by the Company for the
Shares to be sold by it and to an account designated by the Custodian for the
Shares to be sold by the Selling Shareholders, in each
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case against delivery of certificates therefor to the Representatives for the
several accounts of the Underwriters. Such payment and delivery are to be made
through the facilities of The Depository Trust Company at 10:00 a.m., New York
time, on the third business day after the date of this Agreement or at such
other time and date not later than five business days thereafter as you and the
Company shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the New
York Stock Exchange is open for trading and on which banks in New York are open
for business and not permitted by law or executive order to be closed.)
(c) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase the
Option Shares at the price per Share as set forth in the first paragraph of this
Section 2. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only once
thereafter within 30 days after the date of this Agreement, by you, as
Representatives of the several Underwriters, to the Company, setting forth the
number of Option Shares as to which the several Underwriters are exercising the
option and the time and date at which such certificates are to be delivered. The
time and date at which certificates for Option Shares are to be delivered shall
be determined by the Representatives but shall not be earlier than three nor
later than 10 full business days after the exercise of such option, nor in any
event prior to the Closing Date (such time and date being herein referred to as
the "Option Closing Date"). If the date of exercise of the option is three or
more days before the Closing Date, the notice of exercise shall set the Closing
Date as the Option Closing Date. The number of Option Shares to be purchased by
each Underwriter shall be in the same proportion to the total number of Option
Shares being purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of Firm Shares, adjusted by you in such
manner as to avoid fractional shares. The option with respect to the Option
Shares granted hereunder may be exercised only to cover over-allotments in the
sale of the Firm Shares by the Underwriters. You, as Representatives of the
several Underwriters, may cancel such option at any time prior to its expiration
by giving written notice of such cancellation to the Company. To the extent, if
any, that the option is exercised, payment for the Option Shares shall be made
on the Option Closing Date in Federal (same day) funds drawn to the order of the
Company for the Option Shares to be sold by it against delivery of certificates
therefor through the facilities of The Depository Trust Company, New York, New
York.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representatives deem it advisable to
do so. The Firm Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Representatives may from
time to time thereafter change the public offering price and other selling
terms.
It is further understood that you will act as the Representatives
for the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
11
4. COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
(a) The Company covenants and agrees with the several Underwriters
that:
(i) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule 430A of
the Rules and Regulations is followed, to prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form
approved by the Representatives containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A of
the Rules and Regulations and (B) not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Representatives shall not
previously have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations.
(ii) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment thereto shall
have become effective, (B) of receipt of any comments from the Commission, (C)
of any request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, and (D) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus or of the institution of
any proceedings for that purpose. The Company will use its best efforts to
prevent the issuance of any such stop order preventing or suspending the use of
the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as the Representatives may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company will, from time to
time, prepare and file such statements, reports, and other documents, as are or
may be required to continue such qualifications in effect for so long a period
as the Representatives may reasonably request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary Prospectus
as the Representatives may reasonably request. The Company will deliver to, or
upon the order of, the Representatives during the period when delivery of a
Prospectus is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representatives may
reasonably request. The Company will deliver to the Representatives at or before
the Closing Date, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will deliver to
the Representatives such number of copies of the Registration Statement
(including such number of copies of the exhibits filed therewith that may
reasonably be requested), and of all amendments thereto, as the Representatives
may reasonably request.
12
(v) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the Prospectus so that
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with the law.
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made available.
(vii) Prior to the Closing Date, the Company will furnish to
the Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of
any shares of Common Stock of the Company or other securities convertible into
or exchangeable or exercisable for shares of the Company's Common Stock or
derivative of such Common Stock (or agreement for such), including the filing of
any registration statement under the Act (other than registration statements on
Form S-8) or any other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of Common Stock of the
Company, will be made for a period of 180 days after the date of this Agreement,
directly or indirectly, by the Company otherwise than hereunder or with the
prior written consent of Deutsche Bank Securities Inc. ("DBSI"), provided,
however, that the Company may (i) grant stock options, restricted stock or other
stock-based awards to employees, consultants or directors pursuant to the terms
of its plans in effect on the date hereof and described in the Prospectus, (ii)
issue shares of its Common Stock pursuant to: (A) the exercise of such options
and stock-based awards and (B) the exercise of any employee stock options
outstanding on the date hereof, and (iii) issue shares of its Common Stock or
other securities convertible into or exchangeable or exercisable for shares of
its Common Stock or derivative of its Common Stock (or enter into agreements for
such) in connection with one or more acquisitions by the Company of assets,
capital stock or businesses of unaffiliated persons or entities (whether by
mergers, exchanges of stock or otherwise), or in connection with the entering
into of one or more strategic partnering agreements with unaffiliated entities,
provided that, in the
13
case of this clause (iii), each person or entity receiving any such securities
of the Company (or entering into any agreement for such) pursuant to any such
acquisition or agreement shall enter into a letter agreement with transfer
restriction terms (including a lock-up period continuing for 180 days after the
date of this Agreement) equivalent to those set forth above in this sentence.
(ix) The Company will use its best efforts to list the Shares
for quotation on the Nasdaq National Market.
(x) The Company has caused each officer and director, each
Selling Shareholder, and each other shareholder and option holder of the Company
listed on Schedule III hereto to furnish to you, on or prior to the date of this
Agreement, a letter or letters, in the form provided by DBSI, pursuant to which
each such person has agreed not to offer, sell, sell short or otherwise dispose
of any shares of Common Stock of the Company or other capital stock of the
Company, or any other securities convertible, exchangeable or exercisable for
such Common Stock or derivative of such Common Stock owned by such person or
request the registration for the offer or sale of any of the foregoing (or as to
which such person has the right to direct the disposition of) for a period of
180 days after the date of this Agreement, directly or indirectly, except with
the prior written consent of DBSI ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of
Shares as set forth in the Prospectus and shall make such disclosures in reports
filed with the Commission with respect to the sale of such Shares and the
application of the proceeds therefrom as may be required in accordance with Rule
463 under the Act.
(xii) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the
several Underwriters that, in order to document the Underwriters' compliance
with the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of
1983 with respect to the transactions herein contemplated, each of the Selling
Shareholders agrees to deliver to you prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-8 or W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Sellers under this Agreement, including,
without limiting the generality of the
14
foregoing, the following: accounting fees of the Company; the fees and
disbursements of counsel for the Company; the cost of printing and delivering
to, or as requested by, the Underwriters copies of the Registration Statement,
Preliminary Prospectuses, the Prospectus, this Agreement, the Underwriters'
Selling Memorandum, the Underwriters' Invitation Letter, the Listing Application
and any supplements or amendments thereto; the filing fees of the Commission;
the filing fees and expenses (including reasonable legal fees and disbursements)
incident to securing any required review by the NASD of the terms of the sale of
the Shares; the Listing Fee of the Nasdaq National Market; and the expenses,
including the reasonable fees and disbursements of counsel for the Underwriters,
incurred in connection with the qualification of the Shares under State
securities or Blue Sky laws. To the extent, if at all, that any of the Selling
Shareholders engage legal counsel other than Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and
Xxxx LLP to represent them in connection with this offering, the fees and
expenses of such counsel shall be borne by such Selling Shareholder. Any
transfer taxes imposed on the sale of Shares by a Selling Shareholder to the
several Underwriters will be paid by such Selling Shareholder. The Sellers shall
not, however, be required to pay for any of the Underwriters' expenses (other
than to the extent set forth in the preceding sentence with respect to expenses
related to qualification under NASD regulations and State securities or Blue Sky
laws) except that, if this Agreement shall not be consummated, in accordance
with the terms hereof, because the conditions in Section 6 hereof are not
satisfied, unless such failure is due primarily to the default or omission of
any Underwriter, or because this Agreement is terminated by the Representatives
pursuant to Section 11 hereof, or by reason of any failure, refusal or inability
on the part of the Company or the Selling Shareholders to perform any
undertaking or satisfy any condition of this Agreement or to comply with any of
the terms hereof on their part to be performed, unless such failure, refusal or
inability is due primarily to the default or omission of any Underwriter, the
Company shall reimburse the several Underwriters for reasonable out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred in
connection with investigating, marketing and proposing to market the Shares or
in contemplation of performing their obligations hereunder; but the Sellers
shall not in any event be liable to any of the several Underwriters for damages
on account of loss of anticipated profits from the sale by them of any of the
Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the Firm
Shares on the Closing Date and the Option Shares, if any, on the Option Closing
Date are subject to the accuracy, as of the Closing Date or the Option Closing
Date, as the case may be, of the representations and warranties of the Company
and the Selling Shareholders contained herein, and to the performance in all
material respects by the Company and the Selling Shareholders of their covenants
and obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule 424
and Rule 430A of the Act shall have been made within the applicable time period
prescribed by, and in compliance with, the Rules and Regulations, and any
request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representatives and complied with to their reasonable satisfaction. No stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that
15
purpose shall have been taken or, to the knowledge of the Company or the Selling
Shareholders, shall be contemplated or threatened by the Commission and no
injunction, restraining order or order of any nature by a Federal or State court
of competent jurisdiction shall have been issued as of the Closing Date which
would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinions of Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Company, dated the Closing Date or
the Option Closing Date, as the case may be, addressed to the Underwriters
substantially to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has the corporate power and authority to carry on its business and
to own, lease and operate its properties, as such business and properties are
described in the Prospectus.
(ii) The Company is duly qualified and is in good standing as
a foreign corporation authorized to do business in the States identified in such
opinion.
(iii) All the outstanding shares of Common Stock of the
Company, including the Shares to be sold by the Selling Shareholders, have been
duly authorized and are validly issued, fully paid and non assessable.
(iv) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered to the Underwriters against payment
therefor as provided by this Agreement, will be validly issued, fully paid and
non assessable, and the issuance of such Shares will not be subject to any
preemptive rights under the Delaware General Corporation Law statute or the
Charter of the Company or, to the knowledge of such counsel, similar contractual
rights granted by the Company (except for such preemptive or contractual rights
as have been waived).
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Registration Statement has become effective under the
Act, and, to the knowledge of such counsel, (A) no stop order suspending its
effectiveness has been issued and (B) no proceedings for that purpose are
pending before or threatened by the Commission.
(vii) Except as may be required under the Act and the rules
and regulations of the Commission thereunder and the Exchange Act and the rules
and regulations of the Commission thereunder, no filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
United States federal or Massachusetts state governmental authority or agency is
necessary for the execution and delivery of this Agreement or the issuance, sale
and delivery of Shares by the Company to the Underwriters pursuant to this
Agreement.
(viii) The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
thereby will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the Charter or
16
By-Laws of the Company or any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which the Company is a party and that is filed
as an exhibit to the Registration Statement.
(ix) The statements in the Prospectus under the captions
"Description of Capital Stock" and "Shares Eligible for Future Sale" and in Item
14 of Part II of the Registration Statement, insofar as such statements
constitute matters of law or legal conclusions or summarize the terms of
agreements or the Company's Charter, are correct in all material respects.
(x) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company," as such term
is defined in the 1940 Act.
(xi) To the knowledge of such counsel, except as described in
the Registration Statement, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration Statement, except for
any such rights as have been waived.
In addition to the matters set forth above, such counsel shall
confirm to you as follows: In the course of acting as counsel for the Company in
connection with the preparation of the Registration Statement and the
Prospectus, such counsel participated in conferences with officers and other
representatives of the Company, representatives of and counsel for the
Underwriters and representatives of the independent public accountants of the
Company, during which the contents of the Registration Statement and the
Prospectus were discussed. While the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such that such counsel does not pass upon or assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except to the extent
expressly set forth pursuant to paragraph (ix) above), subject to the foregoing
and based on such participation and discussions:
(A) the Registration Statement, as of its effective date, and
the Prospectus, as of the date thereof (except for the financial statements,
including the notes thereto, and other financial, statistical and accounting
data and information, and information relating to the Underwriters and the
method of distribution of the Shares by the Underwriters included therein or
omitted therefrom, as to which such counsel need express no view) appear on
their face to be appropriately responsive in all material respects to the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder,
(B) no facts have come to the attention of such counsel that
have caused such counsel to believe that (i) the Registration Statement (as
amended by any post-effective amendment filed prior to the date of such
opinion), at the time the Registration Statement (or such post-effective
amendment) became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (except as set forth in the
parenthetical in clause (A) above) or (ii) the
17
Prospectus, as of the date it was filed with the Commission pursuant to Rules
424(b) and 430A under the Act and as of the Closing Date or the Option Closing
Date, as the case may be, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (except as set forth in the parenthetical in clause
(A) above),
(C) such counsel is not aware of any contract or other
document of a character required by the Act and the applicable rules and
regulations of the Commission thereunder to be filed as an exhibit to the
Registration Statement that is not so filed, and
(D) such counsel is not aware of any action, proceeding or
litigation pending, contemplated or threatened against the Company before any
court or governmental or administrative agency or body that is required by the
Act or the rules and regulations thereunder to be described in the Registration
Statement or the Prospectus that is not so described.
(c) The Representatives shall have received on the Closing Date the
opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the each of
the Selling Shareholders marked with an asterisk (*) in Schedule II hereto (each
a "Specified Selling Shareholder"), dated the Closing Date, addressed to the
Underwriters substantially to the effect that:
(i) Each Specified Selling Shareholder that is an entity has
duly authorized this Agreement and the Irrevocable Power of Attorney and Custody
Agreement executed and delivered by such Specified Selling Shareholder.
(ii) This Agreement has been duly executed and delivered by or
on behalf of each of the Specified Selling Shareholders.
(iii) Each of the Irrevocable Power of Attorney and the
Custody Agreement executed and delivered by a Specified Selling Shareholder
constitutes a valid and binding obligation of such Specified Selling
Shareholder, enforceable against such Specified Selling Shareholder in
accordance with its terms.
(iv) Except as may be required under the Act, the Exchange Act
or the respective rules and regulations of the Commission thereunder, no filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any United Stated federal or Massachusetts state
governmental authority or agency is necessary for the execution and delivery of
this Agreement or the sale and delivery of Shares by the Specified Selling
Shareholders to the Underwriters pursuant to this Agreement.
(v) Upon acquiring possession of stock certificates
representing the Shares to be sold by the Specified Selling Shareholders,
endorsed to the Underwriters by the respective Specified Selling Shareholders
specified by such certificates to be entitled to such certificates, and paying
the purchase price therefor pursuant to this Agreement, the Underwriters will
acquire their respective interests in such Shares, including all rights that any
of the Specified Selling Shareholders had or has the power to transfer in any of
such Shares, free of any adverse claim within the meaning of UCC Sections 8-102
and 8-502.
18
(d) The Representatives shall have received on the Closing Date the
opinion of Xxxx, Xxxxxxx & Xxxxxx LLP, counsel for Summit Accelerator Founders
Fund, L.P., Summit Accelerator Fund, L.P. and Summit (SAF) Investors IV, L.P.
(each a "Summit Selling Shareholder"), dated the Closing Date, addressed to the
Underwriters substantially to the following effect:
(i) Each Summit Selling Shareholder is a partnership validly
existing and in good standing under the laws of the State of Delaware.
(ii) Assuming that the Underwriters acquire the Shares being
sold to them by the Summit Selling Shareholders (the "Summit Selling Shareholder
Shares") pursuant to this Agreement without notice of an adverse claim thereto,
upon (a) the delivery to the Underwriters of such Summit Selling Shareholder
Shares, (b) the payment therefor in accordance with the terms of the
Underwriting Agreement and (c) the acquisition by the Underwriters of control of
such Summit Selling Shareholder Shares, the Underwriters will acquire such
Summit Selling Shareholder Shares free of any adverse claim. For purposes of
this Paragraph 6, the terms "delivery", "control", "adverse claim" and "notice
of an adverse claim" have the respective meanings ascribed thereto in Sections
8-301, 8-106, 8-102(a)(1) and 8-105 of the Uniform Commercial Code in effect in
the State of New York.
(iii) Each Summit Selling Shareholder has all requisite
partnership power and authority to execute and deliver this Agreement and any
Irrevocable Power of Attorney or Custody Agreement to which it is a party and to
perform its obligations hereunder and thereunder. The execution, delivery and
performance by each Summit Selling Shareholder of this Agreement and any
Irrevocable Power of Attorney or Custody Agreement to which it is a party have
been duly authorized by all necessary partnership action on the part of such
Summit Selling Shareholder. This Agreement, an Irrevocable Power of Attorney and
a Custody Agreement have been duly and validly executed and delivered by or on
behalf of each Summit Selling Shareholder. Assuming the due authorization,
execution and delivery thereof by the other parties thereto, the Irrevocable
Power of Attorney and Custody Agreement executed by each Summit Selling
Shareholder constitute the legal, valid and binding obligations of such Summit
Selling Shareholder which is a party thereto, enforceable against such Summit
Selling Shareholder in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except that
rights to indemnification and contribution thereunder may be limited by federal
or state securities laws or public policy relating thereto.
(iv) The execution and delivery by each Summit Selling
Shareholder of this Agreement and the Irrevocable Power of Attorney or Custody
Agreement to which such Summit Selling Stockholder is a party and the
performance by such Summit Selling Shareholder of its obligations hereunder and
thereunder will not conflict with, constitute a default under or violate (A) any
of the terms, conditions or provisions of the partnership agreement of or other
similar agreement or document of which such counsel has knowledge governing such
Summit Selling Shareholder, (B) any federal or Massachusetts state law or
regulation (other than federal and state
19
securities or blue sky laws, as to which such counsel need express no opinion in
this opinion), or (C) any judgment, writ, injunction, decree, order or ruling of
any court or governmental authority binding on such Summit Selling Shareholder
of which such counsel is aware.
(v) No consent, approval, waiver, license or authorization or
other action by or filing with any federal or Massachusetts state governmental
authority is required in connection with the execution and delivery by each
Summit Selling Shareholder of this Agreement and any Irrevocable Power of
Attorney or Custody Agreement to which it is a party, the consummation by each
Summit Selling Shareholder of the transactions contemplated hereby or thereby or
the performance by each Summit Selling Shareholder of its obligations hereunder
and thereunder, except for filings and other actions required pursuant to (A)
the Act and/or the Exchange Act and the rules and regulations thereunder and (B)
federal and state securities or blue sky laws, as to which such counsel need
express no opinion in this paragraph.
The opinions expressed in such opinion may be limited to the laws of the
Commonwealth of Massachusetts, the Uniform Commercial Code of the State of New
York, the partnership and limited liability company laws of the State of
Delaware and the federal laws of the United States.
(e) The Representatives shall have received on the Closing Date the
opinion of Xxxxxxxx & Worcester LLP, counsel for Xxxxxxx X. Xxxxx Trust, dated
the Closing Date, addressed to the Underwriters substantially to the effect set
forth in clauses (i) through (v) of Section 6(c) above with respect to such
trust (in lieu of the Specified Selling Shareholders).
(f) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, an intellectual property opinion of
Xxxx & Xxxxxxxxxx P.C., counsel for the Company, dated the Closing Date or the
Option Closing Date, as the case may be, addressed to the Underwriters (and
stating that it may be relied upon by counsel to the Underwriters) substantially
in a form previously approved by you.
(g) The Representatives shall have received from Xxxxxxx Procter
LLP, counsel for the Underwriters, an opinion dated the Closing Date or the
Option Closing Date, as the case may be, substantially to the effect that:
(i) The Company is validly existing as a corporation and in
good standing under Delaware law.
(ii) The Shares to be issued by the Company have been duly
authorized and, when issued and delivered in accordance with the terms of this
Agreement against payment of the consideration set forth therein, will be
validly issued, fully paid and non-assessable.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
In addition to the matters set forth above, such opinion shall also
include a statement that no facts have come to the attention of such counsel
that have caused such counsel to believe that (i) the Registration Statement,
(as amended by any post-effective amendment filed prior to the date of such
opinion), at the time the Registration Statement (or such post-effective
amendment)
20
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) the Prospectus, as of the date it was
filed with the Commission pursuant to Rules 424(b) and 430A under the Act and as
of the Closing Date or the Option Closing Date, as the case may be, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except that such
counsel need express no view as to financial statements and related notes and
other financial, statistical and accounting data and information therein). With
respect to such statement, Xxxxxxx Procter LLP may state that their belief is
based upon the procedures set forth therein, but is without independent check
and verification.
(h) You shall have received, on each of the date hereof, the Closing
Date and, if applicable, the Option Closing Date, a letter dated the date
hereof, the Closing Date or the Option Closing Date, as the case may be, in form
and substance satisfactory to you, of Ernst & Young LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating that in their opinion the
financial statements examined by them and included in the Registration Statement
comply in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations; and
containing such other statements and information as is ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the financial
statements and certain financial and statistical information contained in the
Registration Statement and Prospectus.
(i) The Representatives shall have received on the Closing Date and,
if applicable, the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief Financial Officer of
the Company to the effect that, as of the Closing Date or the Option Closing
Date, as the case may be, each of them represents on behalf of the Company as
follows:
(i) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for such purpose have been taken or are, to
his knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing Date or the
Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to Rule
424 or 430A under the Act have been made as and when required by such rules;
(iv) He has carefully examined the Registration Statement and
the Prospectus and, in his opinion, as of the effective date of the Registration
Statement, the Registration Statement and the Prospectus did not include any
untrue statement of material fact and did not omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and since the effective date of the Registration
Statement, no
21
event has occurred which should have been set forth in a supplement to or an
amendment of the Prospectus which has not been so set forth in such supplement
or amendment; and
(v) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, there has not been any
Material Adverse Change or any development that is reasonably likely to result
in a Material Adverse Change, whether or not arising in the ordinary course of
business.
(j) The Company and the Selling Shareholders shall have furnished to
the Representatives such further certificates and documents confirming the
representations and warranties, covenants and conditions contained herein and
related matters as the Representatives may reasonably have requested.
(k) The Firm Shares and Option Shares, if any, have been approved
for quotation upon notice of issuance on the Nasdaq National Market.
(l) The Lockup Agreements described in Section 4(x) are in full
force and effect.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Representatives and to Xxxxxxx
Procter LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Company and the Selling Shareholders of
such termination in writing or by telegram at or prior to the Closing Date or
the Option Closing Date, as the case may be.
In such event, the Selling Shareholders, the Company and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLERS.
The obligations of the Sellers to sell and deliver the portion of
the Shares required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which such Underwriter or any such controlling
person may become subject under the Act or otherwise, insofar as such losses,
22
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
(ii) 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
in the light of the circumstances under which they were made or (iii) any act or
failure to act, or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided, that the Company shall not be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct); provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability of the Underwriter or controlling person arises out of or is based
upon (A) an untrue statement or alleged untrue statement of a material fact
contained in, or the omission or alleged omission of a material fact from, any
Preliminary Prospectus that was corrected in the Prospectus or any amendment or
supplement thereto, if such Underwriter sold Shares to the person alleging such
loss, claim, damage or liability without sending or giving, at or prior to the
written confirmation of the sale of such Shares, a copy of the Prospectus or any
amendment or supplement thereto, but only if the Company has previously
furnished copies of the Prospectus or any such amendment or supplement to the
Underwriter, or (B) an untrue statement or alleged untrue statement contained
in, or the omission or alleged omission of a material fact from, the
Registration Statement, any Preliminary Prospectus, the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof; and
(2) except as otherwise provided in Section 8(a)(1), to
reimburse each Underwriter and each such controlling person upon demand for any
legal or other out-of-pocket expenses reasonably incurred by such Underwriter or
such controlling person in connection with investigating or defending any such
loss, claim, damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the offering of the Shares, whether
or not such Underwriter or controlling person is a party to any action or
proceeding. In the event that it is finally judicially determined that the
Underwriters were not entitled to receive payments for legal and other expenses
pursuant to this subparagraph, the Underwriters will promptly return all sums
that had been advanced pursuant hereto.
(b) Each of the Selling Shareholders severally agrees:
(1) to indemnify the Underwriters and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, against any losses, claims, damages or liabilities to
which such Underwriter or controlling person may become subject under the Act or
otherwise , insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, (ii) the omission
23
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made or (iii) any act or failure to
act, or any alleged act or failure to act by any Underwriter in connection with,
or relating in any manner to, the Shares or the offering contemplated hereby,
and which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause (i)
or (ii) above (provided, that such selling Shareholder shall not be liable under
this clause (iii) to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Underwriter through its gross negligence or willful
misconduct), in each case under clause (i), (ii) or (iii) to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Selling Shareholder expressly for use therein, provided,
however, that such Selling Shareholder will not be liable in any such case to
the extent that any such loss, claim, damage or liability of the Underwriter or
controlling person arises out of or is based upon an untrue statement or alleged
untrue statement contained in, or the omission or alleged omission of a material
fact from, the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or through the
Representatives specifically for use in the preparation thereof; and
(2) except as otherwise provided in Section 8(b)(1), to
reimburse each Underwriter and each such controlling person upon demand for any
legal or other out-of-pocket expenses reasonably incurred by such Underwriter or
such controlling person in connection with investigating or defending any such
loss, claim, damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the offering of the Shares, whether
or not such Underwriter or controlling person is a party to any action or
proceeding. In the event that it is finally judicially determined that the
Underwriters were not entitled to receive payments for legal and other expenses
pursuant to this subparagraph, the Underwriters will promptly return all sums
that had been advanced pursuant hereto.
In no event, however, shall the liability of any Selling Shareholder
for indemnification under this Section 8(b) exceed the net proceeds received by
such Selling Shareholder from the Underwriters in the offering. This indemnity
obligation will be in addition to any liability which the Company may otherwise
have.
(c) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, the Selling Shareholders, and each person, if
any, who controls the Company or the Selling Shareholders within the meaning of
the Act, against any losses, claims, damages or liabilities to which the Company
or any such director, officer, Selling Shareholder or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the
24
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made; and will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, Selling Shareholder or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which such Underwriter may otherwise have.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a), (b) or (c) shall be available to
any party who shall fail to give notice as provided in this Section 8(d) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a), (b) or (c). In case any such proceeding shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred (or within 30 days of presentation) the fees and
expenses of the counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Representatives in the case of
parties indemnified pursuant to Section 8(a) or (b) and by the Company and the
Selling Shareholders in the case of parties indemnified pursuant to Section
8(c). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. In addition, the indemnifying party will
not, without the
25
prior written consent of the indemnified party, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action or
proceeding of which indemnification may be sought hereunder (whether or not any
indemnified party is an actual or potential party to such claim, action or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
(e) To the extent the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings 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 actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Selling Shareholders on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling Shareholders
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The 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 Shareholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 8(e) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 8(e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(e) 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 subsection (e), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter, (ii) 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, and (iii) no
Selling Shareholder shall be required to contribute any amount in excess of the
net proceeds received by such Selling Shareholder from the
26
Underwriters in the offering. The Underwriters' obligations in this Section 8(e)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon it by any other contributing party and consents to the service of such
process and agrees that any other contributing party may join it as an
additional defendant in any such proceeding in which such other contributing
party is a party.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 8.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case may
be, any Underwriter shall fail to purchase and pay for the portion of the Shares
which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company or a Selling
Shareholder), you, as Representatives of the Underwriters, shall use your
reasonable efforts to procure within 36 hours thereafter one or more of the
other Underwriters, or any others, to purchase from the Company and the Selling
Shareholders such amounts as may be agreed upon and upon the terms set forth
herein, the Shares which the defaulting Underwriter or Underwriters failed to
purchase. If during such 36 hours you, as such Representatives, shall not have
procured such other Underwriters, or any others, to purchase the Shares agreed
to be purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of Shares with respect to which such default shall occur does
not exceed 10% of the Shares to be purchased on the Closing Date or the Option
Closing date, as the case may be, the other Underwriters shall be obligated,
severally, in proportion to the respective numbers of Shares which they are
obligated to purchase hereunder, to purchase the Shares which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate number
of Shares with respect to which such default shall occur exceeds 10% of the
Shares to be purchased on the Closing Date or the Option Closing Date, as the
case may be, the Company and the Selling Shareholders or you as the
Representatives of the Underwriters will have the right, by written notice given
within the next 36-hour period to the parties to this Agreement, to terminate
this Agreement without liability on the part of the non-defaulting Underwriters
or of the Company or of the Selling Shareholders except to
27
the extent provided in Sections 5 and 8 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 9, the Closing Date or
Option Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as you, as Representatives, may determine in order that
the required changes in the Registration Statement or in the Prospectus or in
any other documents or arrangements may be effected. The term "Underwriter"
includes any person substituted for a defaulting Underwriter. Any action taken
under this Section 9 shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: if to the Underwriters, to Deutsche Bank Securities
Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Syndicate
Manager, with a copy to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel and Xxxxxxx Procter LLP, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, Esq.; if to the
Company or the Selling Shareholders, to Unica Corporation, 000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Chief Executive Officer, with a copy to
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Esq.
11. TERMINATION.
This Agreement may be terminated by you by notice to the Company and
the Selling Shareholders (a) at any time prior to the Closing Date or any Option
Closing Date (if different from the Closing Date and then only as to Option
Shares) if any of the following has occurred: (i) since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
any Material Adverse Change or any development involving a prospective Material
Adverse Change, whether or not arising in the ordinary course of business, (ii)
any outbreak or escalation of hostilities or declaration of war or national
emergency or other national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets of
the United States would, in your reasonable judgment, make it impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the
Shares, or (iii) suspension of trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market or
limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on either such Exchange, (iv) the enactment,
publication, decree or other promulgation of any statute, regulation, rule or
order of any court or other governmental authority which in your opinion
materially and adversely affects or may materially and adversely affect the
business or operations of the Company, (v) the declaration of a banking
moratorium by United States or New York State authorities, (vi) the suspension
of trading of the Company's Common Stock by the Nasdaq National Market, the
Commission, or any other governmental authority or (vii) the taking of any
action by any governmental body or agency in respect of its monetary or fiscal
affairs which in your reasonable opinion has a material adverse effect on the
securities markets in the United States; or (b) as provided in Sections 6 and 9
of this Agreement.
28
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of
the Underwriters, the Company and the Selling Shareholders and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company, the Selling Shareholders and the Underwriters
acknowledge and agree that the only information furnished or to be furnished by
any Underwriter to the Company for inclusion in any Prospectus or the
Registration Statement consists of the information set forth in the third and
ninth through fifteenth paragraphs under the caption "Underwriting" in the
Prospectus and in the second paragraph under the caption "Underwriting --
Pricing of this Offering" in the Prospectus.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Shares under
this Agreement.
The Company and the Selling Shareholders acknowledge and agree that
each Underwriter in providing investment banking services to the Company and the
Selling Shareholders in connection with the offering, including in acting
pursuant to the terms of this Agreement, has acted and is acting as an
independent contractor and not as a fiduciary and the Company and the Selling
Shareholders do not intend such Underwriter to act in any capacity other than
independent contractor, including as a fiduciary or in any other position of
higher trust.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York without regard to the conflict of laws
provisions thereof.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Selling Shareholders, the
Company and the several Underwriters in accordance with its terms.
[reminder of this page intentionally left blank]
29
Any person executing and delivering this Agreement as
Attorney-in-Fact for a Selling Shareholder represents by so doing that he has
been duly appointed as Attorney-in-Fact by such Selling Shareholder pursuant to
a validly existing and binding Power of Attorney which authorizes such
Attorney-in-Fact to take such action.
Very truly yours,
UNICA CORPORATION
By:____________________________________________
Xxxxxx Xxx, Chief Executive Officer
Selling Shareholders listed on Schedule II
By:____________________________________________
Xxxxxx Xxx, Attorney-in-Fact
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
WACHOVIA CAPITAL MARKETS, LLC
CIBC WORLD MARKETS CORP.
XXXXXXX & COMPANY, LLC
As Representatives of the several
Underwriters listed on Schedule I
By: Deutsche Bank Securities Inc.
By:_______________________________
Authorized Officer
By:________________________________
Authorized Officer
30
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
Underwriter to be Purchased
------------------------------- ---------------------
Deutsche Bank Securities Inc.
Wachovia Capital Markets, LLC
CIBC World Markets Corp.
Xxxxxxx & Company, LLC
---------
Total 4,800,000
=========
31
SCHEDULE II
SCHEDULE OF SELLING SHAREHOLDERS
Number of Firm Shares
Selling Shareholder to be Sold
--------------------------------------- ---------------------
Summit Accelerator Founders Fund, L.P. 28,617
Summit Accelerator Fund, L.P. 554,901
Summit (SAF) Investors IV, L.P. 48,482
Xxxxx Xxxxxx Living Trust* 100,000
Xxxxxxx X. Xxxxx Trust 18,000
Xxxxx Xxxxxxx* 35,000
Xxxx X. Xxxxxx* 25,000
Xxxx Xxxxx 35,000
Xxxxxxx Xxxxxx 15,000
Xxxxxx Xxx 10,000
Xxxxxxx Xxxxxxx Trust* 100,000
Xxxxxxxx Xxx Xxx 40,000
Xxxxxx Xxx Xxx 40,000
---------
Total 1,050,000
=========
32
SCHEDULE III
SCHEDULE OF SHAREHOLDERS AND OPTION HOLDERS SUBJECT TO LOCKUP AGREEMENTS
[To come.]
33
