DRAFT
MACROVISION CORPORATION
1,710,000 SHARES
COMMON STOCK
UNDERWRITING AGREEMENT
January , 0000
XXXXXXXXX & XXXXX LLC
XX XXXXX SECURITIES CORPORATION
U.S. BANCORP XXXXX XXXXXXX INC.
ING BARINGS LLC
x/x Xxxxxxxxx & Xxxxx LLC
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Macrovision Corporation, a Delaware corporation (herein called the
Company), proposes to issue and sell 1,250,000 shares of its authorized but
unissued Common Stock, $0.001 par value (herein called the Common Stock), and
the stockholders of the Company named in Schedule II hereto (herein collectively
called the Selling Securityholders) propose to sell an aggregate of 460,000
shares of Common Stock of the Company (said 1,710,000 shares of Common Stock
being herein called the Underwritten Stock). The Company and the Selling
Securityholders propose to grant to the Underwriters (as hereinafter defined) an
option to purchase up to an aggregate of 256,500 additional shares of Common
Stock (herein called the Option Stock and with the Underwritten Stock herein
collectively called the Stock). The Common Stock is more fully described in the
Registration Statement and the Prospectus hereinafter mentioned.
The Company and the Selling Securityholders severally hereby confirm the
agreements made with respect to the purchase of the Stock by the several
underwriters, for whom you are acting, named in Schedule I hereto (herein
collectively called the Underwriters, which term shall also include any
underwriter purchasing Stock pursuant to Section 4(b) hereof). You represent and
warrant that you have been authorized by each of the other Underwriters to enter
into this Agreement on its behalf and to act for it in the manner herein
provided.
1. REGISTRATION STATEMENT. The Company has filed with the Securities and
Exchange Commission (herein called the Commission) a registration statement
on Form S-3 (No. 333- ), including the related preliminary prospectus, for
the registration under the Securities Act of 1933, as amended (herein called
the Securities Act), of the Stock. Copies of such registration statement and
of each amendment thereto, if any, including the related preliminary
prospectus (meeting the requirements of Rule 430A of the rules and
regulations of the Commission) heretofore filed by the Company with the
Commission have been delivered to you.
The term Registration Statement as used in this agreement shall mean such
registration statement, including all documents incorporated by reference
therein, all exhibits and financial statements, all information omitted
therefrom in reliance upon Rule 430A and contained in the Prospectus referred to
below, in the form in which it became effective, and any registration statement
filed pursuant to Rule 462(b) of the rules and regulations of the Commission
with respect to the Stock (herein called a Rule 462(b) registration statement)
and, in the event of any amendment thereto after the effective date of such
registration statement (herein called the Effective Date), shall also mean (from
and after the effectiveness of such amendment) such registration statement as so
amended (including any Rule 462(b) registration statement). The term Prospectus
as used in this Agreement shall mean the prospectus, including the documents
incorporated by reference therein, relating to the Stock first filed with the
Commission pursuant to Rule 424(b) and Rule 430A (or, if no such filing is
required, as included in the Registration Statement) and, in the event of any
supplement or amendment to such prospectus after the Effective Date, shall also
mean (from and after the filing with the Commission of such supplement or the
effectiveness of such amendment) such prospectus as so supplemented or amended.
The term Preliminary Prospectus as used in this Agreement shall mean each
preliminary prospectus, including the documents incorporated by reference
therein, included in such registration statement prior to the time it becomes
effective.
The Registration Statement has been declared effective under the Securities
Act, and no post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement. The Company has caused to be delivered
to you copies of each Preliminary Prospectus and has consented to the use of
such copies for the purposes permitted by the Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the several Underwriters that:
(a) The Registration Statement has been prepared by the Company in
conformity with the requirements of the Securities Act, and the rules and
regulations (herein called the Rules and Regulations) of the Commission
thereunder, and has been filed with the Commission. The Company has prepared and
has filed or proposes to file prior to the effective date of such registration
statement an amendment or amendments to such registration statement, which
amendment or amendments have been or will be similarly prepared. There have been
delivered to you two signed copies of such registration statement and
amendments, together with two copies of each exhibit filed therewith.
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Conformed copies of such registration statement and amendments (but without
exhibits) and of the related Preliminary Prospectus have been delivered to you
in such reasonable quantities as you have requested for each of the
Underwriters. The Company will next file with the Commission one of the
following: (i) prior to effectiveness of such registration statement, a further
amendment thereto, including the form of final prospectus, or (ii) a final
prospectus in accordance with Rules 430A and 424(b) of the Rules and
Regulations. As filed, such amendment and form of final prospectus, or such
final prospectus, shall include all Rule 430A Information and, except to the
extent that you shall agree to a modification, shall be in all substantive
respects in the form furnished to you prior to the date and time that this
Agreement was executed and delivered by the parties hereto, or, to the extent
not completed at such date and time, shall contain only such specific additional
information and other changes (beyond that contained in the latest Preliminary
Prospectus) as the Company shall have previously advised you would be included
or made therein.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus has
conformed in all material respects to the requirements of the Securities Act and
the Rules and Regulations and, as of its date, has not included any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; and at the time the Registration Statement becomes
effective, and at all times subsequent thereto up to and including each of the
Closing Dates hereinafter mentioned, the Registration Statement and the
Prospectus, and any amendments or supplements thereto, will contain all material
statements and information required to be included therein by the Securities Act
and the Rules and Regulations and will in all material respects conform to the
requirements of the Securities Act and the Rules and Regulations, and neither
the Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, will include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, no representation or warranty
contained in this subsection 2(b) shall be applicable to information contained
in or omitted from any Preliminary Prospectus, the Registration Statement, 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, directly or through the Representative, specifically for use in
the preparation thereof.
(c) The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed in
Exhibit 21.01 to the Company's Annual Report on Form 10-KSB for the year ended
December 31, 1998. The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, with full power and
authority (corporate and other) to own and lease their properties and conduct
their respective businesses as described in the Prospectus; the Company owns all
of the outstanding capital stock of its subsidiaries free and clear of all
claims, liens, charges and encumbrances; the Company and each of its
subsidiaries are in possession of and operating in compliance with all
authorizations, licenses, permits, consents, certificates and orders material to
the conduct of their respective businesses, all of which are valid and in full
force and effect; the Company and each of its subsidiaries are duly qualified to
do business and in good standing as foreign corporations in each jurisdiction in
which
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the ownership or leasing of properties or the conduct of their respective
businesses requires such qualification, except for jurisdictions in which the
failure to so qualify would not have a material adverse effect upon the Company
and its subsidiaries, taken as a whole; and no proceeding has been instituted in
any such jurisdiction, revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification.
(d) As of September 30, 1999, the Company had an authorized and
outstanding capital stock as set forth under the heading "Capitalization" in the
Prospectus, subject to the assumptions set forth therein; the issued and
outstanding shares of Common Stock have been duly authorized and validly issued,
are fully paid and nonassessable, have been issued in compliance with all
federal and state securities laws, were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase securities,
and conform in all material respects to the description thereof contained in the
Prospectus. All issued and outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued and are
fully paid and nonassessable. Except as disclosed in or contemplated by the
Prospectus and the financial statements of the Company, and the related notes
thereto, included in the Prospectus, neither the Company nor any subsidiary has
outstanding any options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any securities or obligations convertible into, or
any contracts or commitments to issue or sell, shares of its capital stock or
any such options, rights, convertible securities or obligations. The description
of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted and exercised thereunder,
set forth in the Prospectus accurately and fairly presents the information
required to be shown with respect to such plans, arrangements, options and
rights.
(e) The Stock to be sold by the Company has been duly authorized and,
when issued, delivered and paid for in the manner set forth in this Agreement,
will be validly issued, fully paid and nonassessable, and will conform in all
material respects to the description thereof contained in the Prospectus. No
preemptive rights or other rights to subscribe for or purchase exist with
respect to the issuance and sale of the Stock by the Company pursuant to this
Agreement. No stockholder of the Company has any right which has not been waived
to require the Company to register the sale of any shares owned by such
stockholder under the Securities Act in the public offering contemplated by this
Agreement. No further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the transfer and sale of the Stock
to be sold by the Selling Securityholders or the issuance and sale of the Common
Shares to be sold by the Company as contemplated herein.
(f) The Company has full legal right, power and authority to enter
into this Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company in accordance with its
terms. The making and performance of this Agreement by the Company and the
consummation of the transactions herein contemplated will not violate any
provisions of the certificate of incorporation or bylaws, or other
organizational documents, of the Company or any of its subsidiaries, and will
not conflict with, result in the breach or violation of, or constitute, either
by itself or upon notice or the passage of time or both, a default under any
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agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of its respective
properties may be bound or affected, any statute or any authorization, judgment,
decree, order, rule or regulation of any court or any regulatory body,
administrative agency or other governmental body applicable to the Company or
any of its subsidiaries or any of their respective properties, which breach,
violation or default could have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole. No consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
compliance with the Securities Act, the Securities Exchange Act of 1934, as
amended (herein called the Exchange Act), the Blue Sky laws applicable to the
public offering of the Common Shares by the several Underwriters and the
clearance of such offering with the National Association of Securities Dealers,
Inc. (herein called the NASD).
(g) KPMG LLP, which has expressed its opinion with respect to the
consolidated financial statements filed with the Commission as a part of the
Registration Statement and included in the Prospectus and in the Registration
Statement, is an independent accountant as required by the Securities Act and
the Rules and Regulations. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparations 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 authorizations; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(h) The consolidated financial statements of the Company and its
subsidiaries, and the related notes thereto, included in the Registration
Statement and the Prospectus present fairly in all material respects the
financial position of the Company and its subsidiaries as of the respective
dates of such financial statements, and the results of operations and changes in
financial position of the Company and its subsidiaries for the respective
periods covered thereby. Such statements and related notes have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis as certified by the independent accountant named in subsection 2(g). No
other financial statements or schedules are required to be included in the
Registration Statement. The consolidated financial data set forth in the
Prospectus under the captions "Summary Consolidated Financial Information,"
"Capitalization" and "Selected Consolidated Financial Data" fairly present in
all material respects the information set forth therein on the basis stated in
the Registration Statement.
(i) Except as disclosed in the Prospectus, and except as to
violations, defaults or breaches which individually or in the aggregate would
not be material to the Company and its subsidiaries, taken as a whole, neither
the Company nor any of its subsidiaries is in violation or default of any
provision of its certificate of incorporation or bylaws, or other organizational
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documents, or is in breach of or default with respect to any provision of any
agreement, judgment, decree, order, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which it is a party or by
which it or any of its properties are bound; and there does not exist any state
of facts which constitutes an event of default on the part of the Company or any
such subsidiary as defined in such documents or which, with notice or lapse of
time or both, would constitute such an event of default.
(j) There are no contracts or other documents required to be described
in the Registration Statement or to be filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have not
been described or filed as required. The contracts so described in the
Prospectus are in full force and effect on the date hereof; and neither the
Company nor any of its subsidiaries, nor to the best of the Company's knowledge,
any other party is in breach of or default under any of such contracts.
(k) Except as described in the Registration Statement and the
Prospectus, there are no legal or governmental actions, suits or proceedings
pending or, to the best of the Company's knowledge, threatened to which the
Company or any of its subsidiaries is or may be a party or of which property
owned or leased by the Company or any of its subsidiaries is or may be the
subject, or related to environmental or discrimination matters, which actions,
suits or proceedings might, individually or in the aggregate, prevent or
adversely affect the transactions contemplated by this Agreement or result in a
material adverse change in the condition (financial or otherwise), properties,
business or results of operations of the Company and its subsidiaries, taken as
a whole; and no labor disturbance by the employees of the Company or any of its
subsidiaries exists or is imminent which might be expected to affect materially
and adversely such condition, properties, business or results of operations.
Neither the Company nor any of its subsidiaries is a party or subject to the
provisions of any material injunction, judgment, decree or order of any court,
regulatory body, administrative agency or other governmental body.
(l) The Company or the applicable subsidiary has good and marketable
title to all the properties and assets reflected as owned in the financial
statements herein above described (or elsewhere in the Prospectus), subject to
no lien, mortgage, pledge, charge or encumbrance of any kind except (i) those,
if any, reflected in such financial statements (or elsewhere in the Prospectus),
or (ii) those which are not material in amount and do not adversely affect the
use made and proposed to be made of such property by the Company and its
subsidiaries. The Company or the applicable subsidiary holds its leased
properties under valid and binding leases, with such exceptions as are not
materially significant in relation to the business of the Company and its
subsidiaries, taken as a whole. Except as disclosed in the Prospectus, the
Company owns or leases all such properties as are necessary to its operations as
now conducted or as proposed to be conducted.
(m) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, and except as described in or
specifically contemplated by the Prospectus: (i) the Company and its
subsidiaries have not incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any material verbal or written
agreement or other transaction which is not in the ordinary course of business
or which could result in a material reduction in the
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future net income of the Company and its subsidiaries, taken as a whole; (ii)
the Company and its subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
windstorm, accident or other calamity, whether or not covered by insurance;
(iii) the Company has not paid or declared any dividends or other distributions
with respect to its capital stock and the Company and its subsidiaries are not
in default in the payment of principal or interest on any outstanding material
debt obligations; (iv) there has not been any change in the capital stock (other
than upon the sale of the Stock hereunder) or indebtedness material to the
Company and its subsidiaries, taken as a whole (other than in the ordinary
course of business); and (v) there has not been any material adverse change in
the condition (financial or otherwise), business, properties or results of
operations of the Company and its subsidiaries, taken as a whole.
(n) The Company and its subsidiaries own all patents, trademarks,
trademark registrations, service marks, service xxxx registrations, trade names,
mask works, copyrights, licenses, inventions, trade secrets and rights described
in the Prospectus as being owned by it or necessary to conduct their businesses
as now conducted. As of the date the Registration Statement became effective,
the descriptions of the patents and patent applications set forth in the
Registration Statement and the Prospectus under the caption "Business --
Intellectual Property Rights" do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. Except as otherwise set forth in the Registration Statement and the
Prospectus, the expiration of any patent rights, trademarks, trade names, mask
works, copyrights, licenses would not have a material adverse effect on the
condition (financial or otherwise), business or results of operations of the
Company or its subsidiaries, taken as a whole. The Company has no knowledge of
any infringement or other violation by it or its subsidiaries of any patent
rights, trademark, trade name rights, mask works, copyrights, licenses, trade
secret or other similar rights of others, and there is no claim being made
against the Company or its subsidiaries regarding any patent, trademark, trade
name, mask work, copyright, license, trade secret or other infringement which
could have a material adverse effect on the condition (financial or otherwise),
business or results of operations of the Company and its subsidiaries, taken as
a whole.
(o) The Company has not been advised, and has no reason to believe,
that either it or any of its subsidiaries is not conducting business in
compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, including, without limitation, all
applicable local, state and federal environmental laws and regulations; except
where failure to be so in compliance would not materially adversely affect the
condition (financial or otherwise), business or results of operations of the
Company and its subsidiaries, taken as a whole.
(p) The Company and its subsidiaries have filed all necessary federal,
state and foreign income and franchise tax returns and have paid all taxes shown
as due thereon; and the Company has no knowledge of any tax deficiency which has
been or might be asserted or threatened against the Company or its subsidiaries
which could materially and adversely affect the business, operations or
properties of the Company and its subsidiaries, taken as a whole.
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(q) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(r) The Company has not distributed and will not distribute prior to
the First Closing Date any offering material in connection with the offering and
sale of the Stock other than the Prospectus, the Registration Statement and the
other materials permitted by the Securities Act.
(s) Each of the Company and its subsidiaries maintains insurance of
the types and in the amounts generally deemed adequate for its business,
including, but not limited to, insurance covering real and personal property
owned or leased by the Company and its subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against,
all of which insurance is in full force and effect.
(t) Neither the Company nor any of its subsidiaries has at any time
during the last five years (i) made any unlawful contribution to any candidate
for foreign office, or failed to disclose fully any contribution in violation of
law, or (ii) made any payment to any federal or state governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof.
(u) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Stock.
(v) The Company is eligible to use a registration statement on Form
S-3 in the registration of the Stock.
(w) The documents incorporated by reference in the Prospectus and the
Registration Statement, when they were first filed with the Commission, complied
with the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact required to be stated therein or necessary to make the
statement therein not misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLING SECURITYHOLDERS.
(a) Each of the Selling Securityholders severally represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Securityholder has, and on the First Closing
Date hereinafter mentioned will have, good and marketable title to the Stock
proposed to be sold by such Selling Securityholder hereunder on such Closing
Date and full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver such Common Shares hereunder, free and
clear of all voting trust arrangements, liens, encumbrances, equities,
security interests, restrictions and claims whatsoever; and upon delivery of
and payment for such Stock hereunder, the Underwriters will acquire good and
valid title thereto, free and clear of all liens, encumbrances,
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equities, claims, restrictions, security interests, voting trusts or other
defects of title whatsoever, provided that the Underwriters are purchasing such
Stock in good faith and without notice of any adverse claim.
(ii) Such Selling Securityholder has executed and delivered a
Power of Attorney and a Custody Agreement (hereinafter collectively referred to
as the "Securityholders Agreements") and in connection herewith such Selling
Securityholder further represents, warrants and agrees that such Selling
Securityholder has deposited in custody, under the Securityholders Agreement,
with the agent named therein (the "Agent") as custodian, certificates in
negotiable form for the Stock to be sold hereunder by such Selling
Securityholder, for the purpose of further delivery pursuant to this Agreement.
Such Selling Securityholder agrees that the Stock to be sold by such Selling
Securityholder on deposit with the Agent are subject to the interests of the
Company and the Underwriters, that the arrangements made for such custody are to
that extent irrevocable, and that the obligations of such Selling Securityholder
hereunder shall not be terminated, except as provided in this Agreement or in
the Securityholders Agreement, by any act of such Selling Securityholder, by
operation of law, by the death or incapacity of such Selling Securityholder or
by the occurrence of any other event. If the Selling Securityholder should die
or become incapacitated, or if any other event should occur, before the delivery
of the Stock hereunder, the documents evidencing Stock then on deposit with the
Agent shall be delivered by the Agent in accordance with the terms and
conditions of this Agreement as if such death, incapacity or other event had not
occurred, regardless of whether or not the Agent shall have received notice
thereof. This Agreement and the Securityholders Agreement have been duly
executed and delivered by or on behalf of such Selling Securityholder and the
form of such Securityholders Agreements has been delivered to you.
(iii) The performance of this Agreement and the Securityholders
Agreements and the consummation of the transactions contemplated hereby and by
the Securityholders Agreements will not result in a breach or violation by such
Selling Securityholder of any of the terms or provisions of, or constitute a
default by such Selling Securityholder under, any indenture, mortgage, deed of
trust, trust (constructive or other), loan agreement, lease, franchise, license
or other agreement or instrument to which such Selling Securityholder is a party
or by which such Selling Securityholder or any of its properties is bound, any
statute, or any judgment, decree, order, rule or regulation of any court or
governmental agency or body applicable to such Selling Securityholder or any of
its properties, in which such breach, violation or default would adversely
affect the ability to such Selling Securityholder to perform its obligations
pursuant to this Agreement or the Securityholders Agreements or could otherwise
have a material adverse effect on such Selling Securityholder.
(iv) Such Selling Securityholder 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 stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Stock.
(v) Such Selling Securityholder has reviewed the Registration
Statement and Prospectus, and, although such Selling Securityholder has not
independently verified the
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accuracy or completeness of the information contained therein (other than the
information regarding such Selling Securityholder and its affiliates, if any,
set forth under the captions "Management" and "Principal and Selling
Securityholders"), nothing has come to the attention of such Selling
Securityholder that would lead such Selling Securityholder to believe that (A)
on the effective date thereof the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or (B) on the date of the Prospectus, the Prospectus contained and,
on the Closing Date, contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(vi) Such Selling Securityholder's decision to sell the Stock
that may be sold by it pursuant to this Agreement is not prompted by any adverse
information regarding the Company which is not disclosed in the Registration
Statement and the Prospectus.
(b) Each of the Selling Securityholders agrees with the Company and
the Underwriters not to directly or indirectly, sell, offer, contract or grant
any option to sell, make any short sale (including without limitation any "short
vs. the box"), pledge, transfer, establish an open "put equivalent position"
within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose
of any shares of Common Stock, options or warrants to acquire shares of Common
Stock, or securities exchangeable or exercisable for or convertible into shares
of Common Stock currently or hereafter owned either of record or beneficially
(as defined in Rule 13d-3 under Exchange Act) by the such Selling
Securityholder, or publicly announce such Selling Securityholder's intention to
do any of the foregoing, for a period commencing on the date hereof and
continuing to a date 90 days after the first date any of the Stock are released
by you for sale to the public, except that, each of the Selling Securityholders
may sell or otherwise transfer shares of Common Stock (i) pursuant to this
Agreement or (ii) as a BONA FIDE gift or gifts, provided that undersigned
provides prior written notice of such gift or gifts to you, and the donee or
donees thereof agree to be bound by the restrictions set forth herein. Each of
the Selling Securityholders also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent and registrar against
the transfer of any of the Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock held by the undersigned except in
compliance with the foregoing restrictions.
4. PURCHASE OF THE STOCK BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Company agrees to issue and sell
1,250,000 shares of the Underwritten Stock to the several Underwriters, each
Selling Securityholder agrees to sell to the several Underwriters the number of
shares of the Underwritten Stock set forth in Schedule II opposite the name of
such Selling Securityholder, and each of the Underwriters agrees to purchase
from the Company and the Selling Securityholders the respective aggregate number
of shares of Underwritten Stock set forth opposite its name in Schedule I. The
price at which such shares of Underwritten Stock shall be sold by the Company
and the Selling Securityholders and purchased by the several Underwriters shall
be $ per share. The obligation of each Underwriter to the Company
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and each of the Selling Securityholders shall be to purchase from the Company
and the Selling Securityholders that number of shares of the Underwritten Stock
which represents the same proportion of the total number of shares of the
Underwritten Stock to be sold by each of the Company and the Selling
Securityholders pursuant to this Agreement as the number of shares of the
Underwritten Stock set forth opposite the name of such Underwriter in Schedule I
hereto represents of the total number of shares of the Underwritten Stock to be
purchased by all Underwriters pursuant to this Agreement, as adjusted by you in
such manner as you deem advisable to avoid fractional shares. In making this
Agreement, each Underwriter is contracting severally and not jointly; except as
provided in paragraphs (b) and (c) of this Section 4, the agreement of each
Underwriter is to purchase only the respective number of shares of the
Underwritten Stock specified in Schedule I.
(b) If for any reason one or more of the Underwriters shall fail or
refuse (otherwise than for a reason sufficient to justify the termination of
this Agreement under the provisions of Section 9 or 10 hereof) to purchase and
pay for the number of shares of the Stock agreed to be purchased by such
Underwriter or Underwriters, the Company or the Selling Securityholders shall
immediately give notice thereof to you, and the non-defaulting Underwriters
shall have the right within 24 hours after the receipt by you of such notice to
purchase, or procure one or more other Underwriters to purchase, in such
proportions as may be agreed upon between you and such purchasing Underwriter or
Underwriters and upon the terms herein set forth, all or any part of the shares
of the Stock which such defaulting Underwriter or Underwriters agreed to
purchase. If the non-defaulting Underwriters fail so to make such arrangements
with respect to all such shares, the number of shares of the Stock which each
non-defaulting Underwriter is otherwise obligated to purchase under this
Agreement shall be automatically increased on a pro rata basis to absorb the
remaining shares which the defaulting Underwriter or Underwriters agreed to
purchase; PROVIDED, HOWEVER, that the non-defaulting Underwriters shall not be
obligated to purchase the shares which the defaulting Underwriter or
Underwriters agreed to purchase if the aggregate number of such shares of the
Stock exceeds 10% of the total number of shares of the Stock which all
Underwriters agreed to purchase hereunder. If the total number of shares of the
Stock which the defaulting Underwriter or Underwriters agreed to purchase shall
not be purchased or absorbed in accordance with the two preceding sentences, the
Company and the Selling Securityholders shall have the right, within 24 hours
next succeeding the 24-hour period above referred to, to make arrangements with
other underwriters or purchasers satisfactory to you for purchase of such shares
on the terms herein set forth. In any such case, either you or the Company and
the Selling Securityholders shall have the right to postpone the First Closing
Date determined as provided in Section 6 hereof for not more than seven business
days after the date originally fixed as the First Closing Date pursuant to said
Section 6 in order that any necessary changes in the Registration Statement, the
Prospectus or any other documents or arrangements may be made. If neither the
non-defaulting Underwriters nor the Company and the Selling Securityholders
shall make arrangements within the 24-hour periods stated above for the purchase
of all the shares of the Stock which the defaulting Underwriter or Underwriters
agreed to purchase hereunder, this Agreement shall be terminated without further
act or deed and without any liability on the part of the Company or the Selling
Securityholders to any non-defaulting Underwriter and without any liability on
the part of any non-defaulting Underwriter to the Company or the Selling
Securityholders. Nothing in this paragraph (b), and no action taken
-11-
hereunder, shall relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
(c) On the basis of the representations, warranties and covenants
herein contained, and subject to the terms and conditions herein set forth, the
Company and the Selling Securityholders grant an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of
256,500 shares of the Option Stock from the Company at the same price per share
as the Underwriters shall pay for the Underwritten Stock. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten Stock by
the Underwriters and may be exercised in whole or in part at any time (but not
more than once) on or before the thirtieth day after the date of this Agreement
upon written or telegraphic notice by you to the Company setting forth the
aggregate number of shares of the Option Stock as to which the several
Underwriters are exercising the option. Delivery of certificates for the shares
of Option Stock, and payment therefor, shall be made as provided in Section 6
hereof. The number of shares of the Option Stock to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Stock to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Stock, as adjusted by you in such manner as you
deem advisable to avoid fractional shares.
5. OFFERING BY UNDERWRITERS.
(a) The terms of the initial public offering by the Underwriters of
the Stock to be purchased by them shall be as set forth in the Prospectus. The
Underwriters may from time to time change the public offering price after the
closing of the initial public offering and increase or decrease the concessions
and discounts to dealers as they may determine.
(b) The information set forth in the last paragraph on the front cover
page, the final paragraphs on the inside front cover, and under "Underwriting"
in the Registration Statement, any Preliminary Prospectus and the Prospectus
relating to the Stock filed by the Company (insofar as such information relates
to the Underwriters) constitutes the only information furnished by the
Underwriters to the Company for inclusion in the Registration Statement, any
Preliminary Prospectus, and the Prospectus, and you on behalf of the respective
Underwriters represent and warrant to the Company that the statements made
therein are correct.
6. DELIVERY OF AND PAYMENT FOR THE STOCK.
(a) Delivery of certificates for the shares of the Underwritten Stock
and the Option Stock (if the option granted by Section 4(c) hereof shall have
been exercised not later than 7:00 A.M., San Francisco time, on the date two
business days preceding the First Closing Date), and payment therefor, shall be
made at the office of Manatt, Xxxxxx & Xxxxxxxx, LLP, 0000 Xxxxxx Xxx, Xxxxx
000, Xxxx Xxxx, Xxxxxxxxxx , Palo Alto, California, at 7:00 a.m., San Francisco
time, on the fourth business day after the date of this Agreement, or at such
time on such other day, not later than seven full business days after such
fourth business day, as shall be agreed upon in writing by the Company, the
Selling Securityholders and you. The date and hour of such delivery and payment
are herein called the First Closing Date.
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(b) If the option granted by Section 4(c) hereof shall be exercised
after 7:00 a.m., San Francisco time, on the date two business days preceding the
First Closing Date, delivery of certificates for the shares of Option Stock, and
payment therefor, shall be made at the office of Manatt, Xxxxxx & Xxxxxxxx, LLP,
0000 Xxxxxx Xxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx at 7:00 a.m., San Francisco
time, on the third business day after the exercise of such option. The date and
hour of such delivery of such Option Stock and payment therefor are herein
called the Second Closing Date.
(c) Payment for the Stock purchased from the Company shall be made to
the Company or its order, and payment for the Stock purchased from the Selling
Securityholders shall be made to the Custodian, for the account of the Selling
Securityholders, in each case by one or more certified or official bank check or
checks in same day funds or by wire transfer to an account. Such payment shall
be made upon delivery of certificates for the Stock to you for the respective
accounts of the several Underwriters against receipt therefor signed by you.
Certificates for the Stock to be delivered to you shall be registered in such
name or names and shall be in such denominations as you may request at least one
business day before the First Closing Date, in the case of Underwritten Stock,
and at least one business day prior to the Second Closing Date, in the case of
the Option Stock. The First Closing Date and Second Closing Date are
collectively referred to herein as the "Closing Dates." Such certificates will
be made available to the Underwriters for inspection, checking and packaging at
the offices of Lewco Securities Corporation, 0 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 on the business day prior to the Closing Dates or, in the case of the
Option Stock, by 3:00 p.m., New York time, on the business day preceding the
date of purchase.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
and the Selling Securityholders for shares to be purchased by any Underwriter
whose check shall not have been received by you on the First Closing Date or the
Second Closing Date, as the case may be. Any such payment by you shall not
relieve such Underwriter from any of its obligations hereunder.
7. FURTHER AGREEMENTS OF THE COMPANY AND THE SELLING SECURITYHOLDERS. Each
of the Company and the Selling Securityholders respectively covenants and agrees
as follows, as applicable:
(a) The Company will (i) prepare and timely file with the Commission
under Rule 424(b) a Prospectus containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A and
(ii) not file any amendment to the Registration Statement or supplement to the
Prospectus of which you shall not previously have been advised and furnished
with a copy or to which you shall have reasonably objected in writing or which
is not in compliance with the Securities Act or the rules and regulations of the
Commission.
(b) The Company will promptly notify each Underwriter in the event of
(i) the request by the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, (ii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, (iii) the institution or notice of intended institution
of any action or proceeding for that purpose, (iv) the receipt by the Company of
any
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notification with respect to the suspension of the qualification of the Stock
for sale in any jurisdiction, or (v) the receipt by it of notice of the
initiation or threatening of any proceeding for such purpose. The Company will
make every reasonable effort to prevent the issuance of such a stop order and,
if such an order shall at any time be issued, to obtain the withdrawal thereof
at the earliest possible moment.
(c) The Company will (i) on or before the First Closing Date, deliver
to you a signed copy of the Registration Statement as originally filed and of
each amendment thereto filed prior to the time the Registration Statement
becomes effective and, promptly upon the filing thereof, a signed copy of each
post-effective amendment, if any, to the Registration Statement (together with,
in each case, all exhibits thereto unless previously furnished to you) and will
also deliver to you, for distribution to the Underwriters, a sufficient number
of additional conformed copies of each of the foregoing (but without exhibits)
so that one copy of each may be distributed to each Underwriter, (ii) as
promptly as possible deliver to you and send to the several Underwriters, at
such office or offices as you may designate, as many copies of the Prospectus as
you may reasonably request, and (iii) thereafter from time to time during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, likewise send to the Underwriters as many additional
copies of the Prospectus and as many copies of any supplement to the Prospectus
and of any amended prospectus, filed by the Company with the Commission, as you
may reasonably request for the purposes contemplated by the Securities Act.
(d) If at any time during the period in which a prospectus is required
by law to be delivered by an Underwriter or dealer any event relating to or
affecting the Company, or of which the Company shall be advised in writing by
you, shall occur as a result of which it is necessary, in the opinion of counsel
for the Company or of counsel for the Underwriters, to supplement or amend the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser of the Stock,
the Company will forthwith prepare and file with the Commission a supplement to
the Prospectus or an amended prospectus so that the Prospectus as so
supplemented or amended will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time such Prospectus
is delivered to such purchaser, not misleading. If, after the initial public
offering of the Stock by the Underwriters and during such period, the
Underwriters shall propose to vary the terms of offering thereof by reason of
changes in general market conditions or otherwise, you will advise the Company
in writing of the proposed variation, and, if in the opinion either of counsel
for the Company or of counsel for the Underwriters such proposed variation
requires that the Prospectus be supplemented or amended, the Company will
forthwith prepare and file with the Commission a supplement to the Prospectus or
an amended prospectus setting forth such variation. The Company authorizes the
Underwriters and all dealers to whom any of the Stock may be sold by the several
Underwriters to use the Prospectus, as from time to time amended or
supplemented, in connection with the sale of the Stock in accordance with the
applicable provisions of the Securities Act and the applicable rules and
regulations thereunder for such period.
-14-
(e) Prior to the filing thereof with the Commission, the Company will
submit to you, for your information, a copy of any post-effective amendment to
the Registration Statement and any supplement to the Prospectus or any amended
prospectus proposed to be filed.
(f) The Company will cooperate, when and as requested by you, in the
qualification of the Stock for offer and sale under the securities or blue sky
laws of such jurisdictions as you may designate and, during the period in which
a prospectus is required by law to be delivered by an Underwriter or dealer, in
keeping such qualifications in good standing under said securities or blue sky
laws; PROVIDED, HOWEVER, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified. 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 you may reasonably request for distribution of the Stock.
(g) During a period of five years commencing with the date hereof, the
Company will furnish to you, and to each Underwriter who may so request in
writing, copies of all periodic and special reports furnished to stockholders of
the Company and of all information, documents and reports filed with the
Commission.
(h) Not later than the 45th day following the end of the fiscal
quarter first occurring after the first anniversary of the Effective Date, the
Company will make generally available to its security holders an earnings
statement in accordance with Section 11(a) of the Securities Act and Rule 158
thereunder.
(i) The Company and, unless otherwise paid by the Company, the Selling
Securityholders jointly and severally agree to pay all costs and expenses
incident to the performance of their obligations under this Agreement (without
obligating the Selling Securityholders with respect to the obligations of the
Company under Section 8 hereof), including all costs and expenses incident to
(i) the preparation, printing and filing with the Commission and the NASD of the
Registration Statement, any Preliminary Prospectus and the Prospectus, (ii) the
furnishing to the Underwriters of copies of any Preliminary Prospectus and of
the several documents required by paragraph (c) of this Section 7 to be so
furnished, (iii) the printing of this Agreement and related documents delivered
to the Underwriters, (iv) the preparation, printing and filing of all
supplements and amendments to the Prospectus referred to in paragraph (d) of
this Section 7, (v) the furnishing to you and the Underwriters of the reports
and information referred to in paragraph (g) of this Section 7 and (vi) the
printing and issuance of stock certificates, including the transfer agent's
fees. The Underwriters may deem the Company to be the primary obligor with
respect to all costs, fees and expenses to be paid by the Company and by the
Selling Stockholders. Except as provided in this Section 7, Section 8 and
Section 10(e) hereof, the Underwriters shall pay all of their own expenses,
including the fees and disbursements of their counsel (excluding those relating
to qualification, registration or exemption under the blue sky laws and the blue
sky memoranda referred to in Section 7(j)). The Selling Stockholders will pay
(directly or by reimbursement) all fees and expenses incident to the performance
of their obligations under this Agreement which are not otherwise specifically
provided for herein, including but not limited to (i) any fees and expenses of
-15-
counsel for any Selling Stockholders other than Manatt, Xxxxxx & Xxxxxxxx, LLP
and (ii) all expenses and taxes incident to the sale and delivery of the Stock
to be sold by such Selling Stockholders to the Underwriters hereunder.
(j) The Company and the Selling Securityholders jointly and severally
agree to reimburse you, for the account of the several Underwriters, for blue
sky fees and related disbursements (including counsel fees and disbursements and
cost of printing memoranda for the Underwriters) paid by or for the account of
the Underwriters or their counsel in qualifying the Stock under state securities
or blue sky laws and in the review of the offering by the NASD.
(k) The provisions of paragraphs (i) and (j) of this Section are
intended to relieve the Underwriters from the payment of the expenses and costs
which the Company and the Selling Securityholders hereby agree to pay and shall
not affect any agreement which the Company and the Selling Securityholders may
make, or may have made, for the sharing of any such expenses and costs.
(l) The Company hereby agrees that, without the prior written consent
of Xxxxxxxxx & Xxxxx LLC on behalf of the Underwriters, the Company will not,
for a period of 90 days following the commencement of the public offering of the
Stock by the Underwriters, directly or indirectly, (i) sell, offer, contract to
sell, make any short sale, pledge, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for or any rights to
purchase or acquire Common Stock or (ii) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic consequences or
ownership of Common Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (i)
the Company's (A) issuance of the Stock to be sold to the Underwriters pursuant
to this Agreement, (B) issuance of Common Stock upon the exercise of warrants
and stock options that are presently outstanding and described as such in the
Prospectus or which may be issued hereafter under the option plans described in
the Registration Statement and the Prospectus and (C) grant of options pursuant
to the option plans described in the Registration Statement and the Prospectus,
(ii) the Company's issuance of Common Stock under the employee stock purchase
plan described in the Registration Statement and the Prospectus, and (iii) the
Company's issuance of shares of Common Stock in an acquisition of another
corporation or entity provided that (1) such shares represent less than 20% of
the Company's then outstanding shares of Common Stock and (2) the individuals or
entities to whom such shares are issued agree that such shares may not be resold
during the 90 days following the first date that any of the shares of Common
Stock are released by the Underwriters for sale to the public.
(m) The Company agrees to use its best efforts to cause all directors
and officers of the Company to agree that, without the prior written consent of
Xxxxxxxxx & Xxxxx LLC on behalf of the Underwriters, such person or entity will
not, for a period of 90 days following the commencement of the public offering
of the Stock by the Underwriters, directly or indirectly, (i) sell, offer,
contract to sell, make any short sale, pledge, sell any option or contract to
purchase, purchase
-16-
any option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any shares of Common Stock or any securities
convertible into or exchangeable or exercisable for or any rights to purchase or
acquire Common Stock or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences or ownership of
Common Stock, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise.
8. INDEMNIFICATION.
(a) The Company, Xxxxxxx X. Krepick, Xxxxxxx X. Xxxxxxx and Xxxxxx
Xxxxxxxxxx (each of Messrs. Krepick, Xxxxxxx and Xxxxxxxxxx may be referred to
herein as an "Indemnifying Securityholder" and collectively they may be referred
to as the "Indemnifying Securityholders"), severally and not jointly, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Securities Act against any
losses, claims, damages, liabilities or expenses, joint or several, to which
such Underwriter or such controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company and a majority in interest of the Indemnifying Securityholders) insofar
as such losses, claims, damages, liabilities or expenses (or actions in respect
thereof as contemplated below) arise out of or are based upon 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 arise out of or are based upon the omission
or alleged omission to state in any of them a material fact required to be
stated therein or necessary to make the statements in any of them not
misleading, or arise out of or are based in whole or in part, in the case of the
Company, on any inaccuracy in the representations and warranties of the Company
contained herein or any failure of the Company to perform its obligations
hereunder or under law or, in the case of an Indemnifying Securityholder, on any
inaccuracy in the representations or warranties of such Indemnifying
Securityholder contained herein or any failure of such Indemnifying
Securityholder to perform its obligations hereunder or under law; and will
reimburse each Underwriter and each such controlling person for any legal and
other expenses as such expenses are reasonably incurred by such Underwriter or
such controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that neither the Company nor an Indemnifying
Securityholder will be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with the
information furnished to the Company pursuant to Section 5(b) hereof; and
provided further that, with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased Stock (or to the benefit of any such person
controlling such Underwriter) to the extent that any such loss, claim, damage,
liability or expense of such Underwriter or controlling person results from the
fact that a copy of the Prospectus was not sent or given to such
-17-
person at or prior to the written confirmation of the sale of such Stock to such
person as required by the Securities Act, and if the untrue statement or
omission concerned has been corrected in the Prospectus, unless such failure is
the result of noncompliance by the Company with Section 7(c) hereof.
Notwithstanding the foregoing, the Indemnifying Securityholders shall not be
required to provide indemnification pursuant to this Section 8(a) unless the
Underwriter or controlling person seeking indemnification shall have first made
a written demand for payment to the Company with respect to any losses, claims,
damages, liabilities or expenses for which the Company and the Indemnifying
Securityholders are required to indemnify the Underwriters pursuant to this
Section 8(a) and the Company shall have failed to make such demanded payment
within one hundred twenty (120) days after receipt thereof. The Company and the
Indemnifying Securityholders may agree, as among themselves and without limiting
the rights of the Underwriters under this Agreement, as to their respective
amounts of such liability for which they each shall be responsible. In addition
to its other obligations under this Section 8(a), the Company and the
Indemnifying Securityholders, severally and not jointly, agree that, as an
interim measure during the pendency of any claim, action, investigation, inquiry
or other proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission, or any inaccuracy in the representations and
warranties of the Company (in the case of the Company) or an Indemnifying
Securityholder (in the case of such Indemnifying Securityholder) herein or
failure to perform its obligations hereunder, all as described in this Section
8(a) and subject to the limitations set forth in this Section 8(a), they will
reimburse each Underwriter on a quarterly basis for all reasonable legal or
other expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the Company's or the Indemnifying Securityholders' obligation to reimburse each
Underwriter for such expenses and the possibility that such payments might later
be held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have been
improper, each Underwriter shall promptly return it to the Company or the
Indemnifying Securityholders as applicable, together with interest, compounded
daily, determined on the basis of the prime rate (or other commercial lending
rate for borrowers of the highest credit standing) announced from time to time
by Bank of America NT&SA, San Francisco, California (the "Prime Rate"). Any such
interim reimbursement payments which are not made to an Underwriter within 30
days of a request for reimbursement, shall bear interest at the Prime Rate from,
in the case of the Company, the date of such request and, in the case of the
Indemnifying Securityholders, one hundred twenty (120) days after the date of
such request. This indemnity agreement will be in addition to any liability
which the Company or the Indemnifying Securityholders may otherwise have.
(b) Each of the Selling Securityholders other than the Indemnifying
Securityholders, severally and not jointly, agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act against any losses, claims, damages,
liabilities or expenses, joint or several, to which such Underwriter or such
controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Selling Securityholders holding a
majority of the Stock being sold by the Selling Securityholders other than the
-18-
Indemnifying Securityholders pursuant to this Agreement), insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof
as contemplated below) 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 arise out of or are based upon the omission or alleged
omission to state in any of them a material fact required to be stated therein
or necessary to make the statements in any of them not misleading in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto in reliance upon and in conformity with information furnished
in writing by such Selling Securityholder, or (ii) arise out of or are based in
whole or in part, on any inaccuracy in the representations or warranties of such
Selling Securityholder contained herein or any failure of such Selling
Securityholder to perform its obligations hereunder or under law; and will
reimburse each Underwriter and each such controlling person for any legal and
other expenses as such expenses are reasonably incurred by such Underwriter or
such controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that, with respect to any untrue statement or
omission or alleged untrue statement or omission made in any Preliminary
Prospectus, the indemnity agreement contained in this subsection (b) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased Stock (or to the benefit of any such
person controlling such Underwriter) to the extent that any such loss, claim,
damage, liability or expense of such Underwriter or controlling person results
from the fact that a copy of the Prospectus was not sent or given to such person
at or prior to the written confirmation of the sale of such Stock to such person
as required by the Securities Act, and if the untrue statement or omission
concerned has been corrected in the Prospectus, unless such failure is the
result of noncompliance by the Company with Section 7(c) hereof. In addition to
its other obligations under this Section 8(b), each Selling Securityholder other
than the Indemnifying Securityholders, severally and not jointly, agrees that,
as an interim measure during the pendency of any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any such statement or
omission, or any alleged statement or omission, or any inaccuracy in the
representations and warranties of any Selling Securityholder (in the case of
such Selling Securityholder) herein or failure to perform its obligations
hereunder, all as described in this Section 8(b) and subject to the limitations
set forth in this Section 8(b), they will reimburse each Underwriter on a
quarterly basis for all reasonable legal or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Selling
Securityholder's obligation to reimburse each Underwriter for such expenses and
the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, each Underwriter shall
promptly return it to the Selling Securityholders, as applicable, together with
interest, compounded daily, determined on the basis of the Prime Rate. Any such
interim reimbursement payments which are not made to an Underwriter within 30
days of a request for reimbursement, shall bear interest at the Prime Rate from
the date of such request. This indemnity agreement will be in addition to any
liability which the Selling Securityholders may otherwise have.
-19-
(c) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement, the Selling Securityholders and each person, if any, who controls the
Company or any Selling Securityholder within the meaning of the Securities Act,
against any losses, claims, damages, liabilities or expenses, joint or several,
to which the Company, or any such director, officer, Selling Securityholder or
controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon any untrue 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 arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with the information furnished to the Company pursuant to
Section 5(b) hereof; and will reimburse the Company, or any such director,
officer, Selling Securityholder or controlling person for any legal and other
expenses as such expenses are reasonably incurred by the Company, or any such
director, officer, Selling Securityholder or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. In addition to its other
obligations under this Section 8(c), each Underwriter severally agrees that, as
an interim measure during the pendency of any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in this Section 8(c)
which relates to information furnished to the Company pursuant to Section 5(b)
hereof, it will reimburse the Company (and, to the extent applicable, each
officer, director, Selling Securityholder or controlling person) on a quarterly
basis for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Underwriters' obligation to reimburse
the Company (and, to the extent applicable, each officer, director, Selling
Securityholder or controlling person) for such expenses and the possibility that
such payments might later be held to have been improper by a court of competent
jurisdiction. To the extent that any such interim reimbursement payment is so
held to have been improper, the Company (and, to the extent applicable, each
officer, director, Selling Securityholder or controlling person) shall promptly
return it to the Underwriters together with interest, compounded daily,
determined on the basis of the Prime Rate. Any such interim reimbursement
payments which are not made to the Company (and, to the extent applicable, each
officer, director, controlling person or Selling Securityholder) within 30 days
of a request for reimbursement, shall bear interest at the Prime Rate from the
date of such request. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made
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against an indemnifying party under this Section, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party for contribution or otherwise than under the indemnity
agreement contained in this Section or to the extent that it is not prejudiced
as a proximate result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be a conflict between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of paragraph (a)
or (b), representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, in each of which
cases the reasonable fees and expenses of counsel shall be at the expense of the
indemnifying party.
(e) If the indemnification provided for in this Section 8 is required
by its terms but is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party under paragraphs (a), (b) or
(c) in respect of any losses, claims, damages, liabilities or expenses referred
to herein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of any losses,
claims, damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Securityholders, on the one hand, and the Underwriters,
on the other hand, from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Securityholders, on the one hand, and the Underwriters, on the other
hand, in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The respective relative benefits received by the Company and the
Selling Securityholders, on the one hand, and the Underwriters, on the other
hand, shall be deemed to be in
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the same proportion, in the case of the Company and the Selling Securityholders,
as the total price paid to the Company and to the Selling Securityholders,
respectively, for the Stock sold by them to the Underwriters (net of
underwriting commissions but before deducting expenses), and in the case of the
Underwriters as the underwriting commissions received by them bears to the total
of such amounts paid to the Company and to the Selling Securityholders and
received by the Underwriters as underwriting commissions. The relative fault of
the Company and the Selling Securityholders, on the one hand, and the
Underwriters, on the other hand, 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 or the inaccurate
or the alleged inaccurate representation and/or warranty relates to information
supplied by the Company, the Selling Securityholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in subparagraph (d) of this Section 8, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim. The provisions set forth in subparagraph (d) of this
Section 8 with respect to notice of commencement of any action shall apply if a
claim for contribution is to be made under this subparagraph (e); provided,
however, that no additional notice shall be required with respect to any action
for which notice has been given under subparagraph (d) for purposes of
indemnification. The Company, the Selling Securityholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined solely 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 in the immediately preceding paragraph. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount of the total underwriting commissions received by
such Underwriter in connection with the Stock underwritten by it and distributed
to the public. No person guilty of fraudulent misrepresentation (within the
meaning of Section 8(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 8 are several
in proportion to their respective underwriting commitments and not joint.
(f) It is agreed that any controversy arising out of the operation of
the interim reimbursement arrangements set forth in Sections 8(a), 8(b) and 8(c)
hereof, including the amounts of any requested reimbursement payments and the
method of determining such amounts, shall be settled by arbitration conducted
under the provisions of the Constitution and Rules of the Board of Governors of
the New York Stock Exchange, Inc. or pursuant to the Code of Arbitration
Procedure of the NASD. Any such arbitration must be commenced by service of a
written demand for arbitration or written notice of intention to arbitrate,
therein electing the arbitration tribunal. In the event that the party demanding
arbitration does not make such designation of an arbitration tribunal in such
demand or notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to the operation of
the interim reimbursement provisions contained in Sections 8(a), 8(b) and 8(c)
hereof and would not resolve the ultimate propriety or enforceability of the
obligation to reimburse expenses which is created by the provisions of such
Sections 8(a), 8(b) and 8(c) hereof.
-22-
(g) The Company will not, without the prior written consent of each
Underwriter, and the Underwiter will not, without the prior written consent of
the Company, settle or compromise or consent to the entry of any judgement in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not such Underwriter or any
person who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act is a party to such claim,
action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of such Underwriter, the Company and each such
controlling person from all liability arising out of such claim, action, suit or
proceeding.
(h) The liability of a Selling Securityholder for a breach of a
representation or warranty set forth in Section 3 hereof or pursuant to the
indemnity, contribution, reimbursement and other provisions of this Section 8
shall be limited to an amount equal to the product obtained by multiplying the
number of shares sold by such Selling Securityholder pursuant to this Agreement
by the price set forth in Section 4(a) above.
9. TERMINATION. This Agreement may be terminated by you at any time prior
to the First Closing Date by giving written notice to the Company and the
Selling Securityholders if after the date of this Agreement trading in the
Common Stock shall have been suspended, or if there shall have occurred (i) the
engagement in major hostilities or an escalation of major hostilities by the
United States or the declaration of war or a national emergency by the United
States on or after the date hereof, (ii) any outbreak of major hostilities or
other national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, calamity, crisis or change
in economic or political conditions in the financial markets of the United
States would, in the Underwriters' reasonable judgment, make the offering or
delivery of the Stock impracticable, (iii) suspension of trading in securities
generally or a material adverse decline in value of securities generally on the
New York Stock Exchange, the American Stock Exchange, or The Nasdaq Stock
Market, or limitations on prices (other than limitations on hours or numbers of
days of trading) for securities on either such exchange or system, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of, or commencement of any proceeding or
investigation by, any court, legislative body, agency or other governmental
authority which in the Underwriters' reasonable opinion materially and adversely
affects or will materially or adversely affect the business or operations of the
Company, (v) declaration of a banking moratorium by either federal or New York
State authorities or (vi) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs which in
the Underwriters' reasonable opinion has a material adverse effect on the
securities markets in the United States. If this Agreement shall be terminated
pursuant to this Section 9, there shall be no liability of the Company or the
Selling Securityholders to the Underwriters and no liability of the Underwriters
to the Company or the Selling Securityholders; PROVIDED, HOWEVER, that in the
event of any such termination the Company and the Selling Securityholders agree
to indemnify and hold harmless the Underwriters from all costs or expenses
incident to the performance of the obligations of the Company and the Selling
Securityholders under this Agreement, including all costs and expenses referred
to in paragraphs (i) and (j) of Section 7 hereof.
-23-
10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the several
Underwriters to purchase and pay for the Stock shall be subject to the
performance by the Company and by the Selling Securityholders of all their
respective obligations to be performed hereunder at or prior to the Closing Date
or any later date on which Option Stock is to be purchased, as the case may be,
and to the following further conditions:
(a) The Registration Statement shall have become effective; and no
stop order suspending the effectiveness thereof shall have been issued and no
proceedings therefor shall be pending or threatened by the Commission.
(b) The legality and sufficiency of the sale of the Stock hereunder
and the validity and form of the certificates representing the Stock, all
corporate proceedings and other legal matters incident to the foregoing, and the
form of the Registration Statement and of the Prospectus (except as to the
financial statements contained therein), shall have been approved at or prior to
the First Closing Date by Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for
the Underwriters.
(c) There shall have been furnished to you, as Representatives of the
Underwriters, on each Closing Date, in form and substance reasonably
satisfactory to you, except as otherwise expressly provided below:
(i) An opinion of Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel for the
Company, addressed to the Underwriters and dated the First Closing Date, or the
Second Closing Date (but without the opinion set forth in paragraphs (16)-(18)
below), as the case may be, to the effect that:
(1) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, is duly qualified to do business as a
foreign corporation and is in good standing in all other jurisdictions where the
ownership or leasing of properties or the conduct of its business requires such
qualification, except for jurisdictions in which the failure to so qualify would
not have a material adverse effect on the Company and its subsidiaries, and has
full corporate power and authority to own its properties and conduct its
business as described in the Registration Statement;
(2) The authorized, issued and outstanding capital stock of
the Company is as set forth under the caption "Capitalization" in the
Prospectus; all necessary and proper corporate proceedings have been taken in
order to authorize validly such authorized Common Stock; all outstanding shares
of Common Stock (including the Underwritten Stock and any Option Stock) have
been duly and validly issued, are fully paid and nonassessable, were issued in
compliance with federal and state securities laws, to such counsel's knowledge
were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase any securities and conform in all material
respects to the description thereof contained in the Prospectus; without
limiting the foregoing, to such counsel's knowledge there are no preemptive or
other rights to subscribe for or purchase any of the Stock to be sold by the
Company hereunder;
-24-
(3) All of the issued and outstanding shares of the
Company's subsidiaries have been duly and validly authorized and issued, are
fully paid and nonassessable and are owned beneficially by the Company free and
clear of all liens, encumbrances, equities, claims, security interests, voting
trusts or other defects of title whatsoever;
(4) The certificates evidencing the Stock to be delivered
hereunder are in due and proper form under Delaware law, and when duly
countersigned by the Company's transfer agent and registrar, and delivered to
you or upon your order against payment of the agreed consideration therefor in
accordance with the provisions of this Agreement, the Stock represented thereby
will be duly authorized and validly issued, fully paid and nonassessable, will
not have been issued in violation of or subject to any preemptive rights or
other rights known to such counsel to subscribe for or purchase securities and
will conform in all respects to the description thereof contained in the
Prospectus;
(5) Except as disclosed in or specifically contemplated by
the Prospectus, to such counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, and no commitments, plans
or arrangements to issue, any shares of capital stock of the Company or any
security convertible into or exchangeable for capital stock of the Company;
(6) The documents incorporated by reference in the
Registration Statement and the Prospectus (except for the financial statements
included therein and the financial data derived therefrom, as to which such
counsel need express no opinion) when they became effective or were filed with
the Commission, as the case may be, complied as to form in all material respects
with the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(7) The execution and performance of this Agreement and the
consummation of the transactions herein contemplated will not conflict with,
result in the breach of, or constitute, either by itself or upon notice or the
passage of time or both, a default under, any agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument known to
such counsel to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of its or their property may
be bound or affected which is material to the Company and its subsidiaries, or
violate any of the provisions of the certificate of incorporation or bylaws, or
other organizational documents, of the Company or any of its subsidiaries or, so
far as is known to such counsel, violate any statute, judgment, decree, order,
rule or regulation of any court or governmental body having jurisdiction over
the Company or any of its subsidiaries or any of its or their property;
(8) Neither the Company nor any subsidiary is in violation
of its certificate of incorporation or bylaws, or other organizational
documents, or to such counsel's knowledge, in breach of or default with respect
to any provision of any agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument known to such counsel to which
the Company or any such subsidiary is a party or by which it or any of its
properties may be bound
-25-
or affected, except where such default would not materially adversely affect the
Company and its subsidiaries;
(9) To such counsel's knowledge, no holders of securities of
the Company have rights which have not been waived or satisfied to the
registration of shares of Common Stock or other securities, because of the
filing of the Registration Statement by the Company or the offering contemplated
hereby;
(10) The information set forth in the Prospectus under the
captions "Risk Factors -- Investment Risks," "Capitalization," "Business --
Intellectual Property Rights" and "Principal and Selling Stockholders," insofar
as such information relates to issuances of securities of the Company or
purports to summarize provisions of any contract, plan or law, fairly describes
such issuances or provisions.
(11) The Company is eligible to use a registration statement
on Form S-3 for the registration of the Stock; the Registration Statement has
become effective under the Securities Act, and, to such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement or
preventing the use of the Prospectus has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated by the Commission;
any required filing of the Prospectus and any supplement thereto pursuant to
Rule 424(b) of the Rules and Regulations has been made in the manner and within
the time period required by such Rule 424(b);
(12) The Registration Statement, the Prospectus and each
amendment or supplement thereto (except for the documents incorporated by
reference therein, the financial statements included therein and the financial
data derived therefrom, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Securities Act
and the Rules and Regulations;
(13) To such counsel's knowledge, there are no franchises,
leases, contracts, agreements or documents of a character required to be
disclosed in the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement which are not disclosed or filed (or incorporated
by reference), as required;
(14) To such counsel's knowledge, there are no legal or
governmental actions, suits or proceedings pending or threatened against the
Company which are required to be described in the Prospectus which are not
described as required;
(15) The Company has full right, power and authority to
enter into this Agreement and to sell and deliver the Stock to be sold by it to
the several Underwriters; this Agreement has been duly and validly authorized by
all necessary corporate action by the Company, has been duly and validly
executed and delivered by and on behalf of the Company, and is a valid and
binding agreement of the Company in accordance with its terms, except as
enforceability may be limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and except as to those provisions relating to indemnity or
-26-
contribution for liabilities arising under the Securities Act as to which no
opinion need be expressed; and no approval, authorization, order, consent,
registration, filing, qualification, license or permit of or with any court,
regulatory, administrative or other governmental body is required for the
execution and delivery of this Agreement by the Company or the performance by
the Company of its obligations pursuant to this Agreement, except such as have
been obtained and are in full force and effect under the Securities Act and such
as may be required under applicable Blue Sky laws in connection with the
purchase and distribution of the Stock by the Underwriters and the clearance of
such offering with the NASD;
(16) To such counsel's knowledge, (a) this Agreement and the
Securityholders Agreements have been duly executed and delivered by or on behalf
of each of the Selling Securityholders (other than Pacific Media) and (b) the
Agent has been duly and validly authorized to act as the custodian of the Stock
to be sold by each such Selling Securityholder; and (c) the performance by the
Selling Securityholders (other than Pacific Media) of their respective
obligations pursuant to this Agreement and the Securityholders Agreements will
not result in a breach of, or constitute a default under, any material
indenture, mortgage, deed of trust, trust (constructive or other), loan
agreement, lease, franchise, license or other agreement or instrument known to
such counsel to which any of the Selling Securityholders (other than Pacific
Media) is a party or by which any of the Selling Securityholders (other than
Pacific Media) or any of their properties may be bound, or violate any statute,
judgment, decree, order, rule or regulation known to such counsel of any court
or governmental body having jurisdiction over any of the Selling Securityholders
(other than Pacific Media) or any of their properties if such breach or
violation would adversely affect a Selling Securityholder's ability to perform
such Selling Securityholder's obligations pursuant to this Agreement or the
Securityholders Agreements; and to such counsel's knowledge, no approval,
authorization, order or consent of any court, regulatory body, administrative
agency or other governmental body is required for the execution and delivery of
this Agreement or the Securityholders Agreements or the consummation by the
Selling Securityholders (other than Pacific Media) of the transactions
contemplated by this Agreement, except such as have been obtained and are in
full force and effect under the Securities Act and such as may be required under
applicable Blue Sky laws in connection with the purchase and distribution of the
Stock by the Underwriters and the clearance of such offering with the NASD;
(17) To such counsel's knowledge, the Selling
Securityholders (other than Pacific Media) have full right, power and authority
to enter into this Agreement and the Securityholders Agreements and to sell,
transfer and deliver the Stock to be sold on such Closing Date by such Selling
Securityholders hereunder and upon delivery of and payment for the Stock to be
sold by the Selling Securityholders (other than Pacific Media) as provided in
this Agreement and upon registration of such Stock in the names of the
Underwriters (or their nominees) in the stock records of the Company, the
Underwriters will be the owners of such Stock, free and clear of any adverse
claim, provided that the Underwriters are purchasing such Stock in good faith
and without notice of any adverse claim; and
(18) To such counsel's knowledge, this Agreement and the
Securityholders Agreements are valid and binding agreements of each of the
Selling Securityholders
-27-
(other than Pacific Media) in accordance with their terms except as
enforceability may be limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and except with respect to those provisions relating to indemnities or
contributions for liabilities under the Securities Act, as to which no opinion
need be expressed.
In rendering such opinion, Manatt, Xxxxxx & Xxxxxxxx, LLP may rely as to
matters of local law or the laws of a state other than California or the
corporate law of the State of Delaware, on opinions of local or foreign counsel
that are satisfactory in form and scope to counsel for the Underwriters. Copies
of any opinions so relied upon shall be delivered to the Representatives and to
counsel for the Underwriters and the foregoing opinion shall also state that
Manatt, Xxxxxx & Xxxxxxxx, LLP knows of no reason the Underwriters are not
entitled to rely upon the opinions of such local counsel. Manatt, Xxxxxx &
Xxxxxxxx, LLP may rely as to matters of fact on certificates of officers of the
Company and of governmental officials, without verification except as specified,
in which case their opinion is to state that they are so doing and that the
Underwriters and their counsel are justified in relying on such opinions or
certificates. Manatt, Xxxxxx & Xxxxxxxx, LLP shall also include a statement to
the effect that nothing has come to their attention that would lead them to
believe that either at the effective date of the Registration Statement or at
the applicable Closing Date the Registration Statement or the Prospectus, or any
such amendment or supplement, contains any untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
Manatt, Xxxxxx & Xxxxxxxx, LLP may base the opinions set forth in
paragraphs (16)-(18) above solely upon the representations and warranties
contained in this Agreement, or Securityholders Agreements executed by each
Selling Securityholder, provided that they confirm that it has no reason to
believe that such representations or warranties are materially inaccurate.
In addition to the matters set forth above, the opinion of Manatt, Xxxxxx &
Xxxxxxxx, LLP shall also include a statement to the effect that, although it has
not independently verified the accuracy or completeness of the statements in the
Registration Statement and the Prospectus, nothing has come to its attention
that causes it to believe that the Registration Statement (except as to the
financial statements and the financial data derived therefrom, as to which it
need not express any opinion or belief) at the Effective Date contained any
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 that the Prospectus (except as to the financial statements and the financial
data derived therefrom, as to which it need not express any opinion or belief)
at the Effective Date contained any 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 that the Prospectus (except as to
the financial statements and the financial data derived therefrom, as to which
it need not express any opinion or belief) as of its date or at the First
Closing Date or Second Closing Date, as the case may be, contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statement therein, in the light of the
circumstances under which the statement was made, not misleading. With respect
to such statement, Manatt, Xxxxxx &
-28-
Xxxxxxxx, LLP may state that its belief is based upon the procedures set forth
therein, but is without independent check or verification.
(ii) An opinion of Xxxxxx Xxxxxxxxx, Esq., counsel to Pacific
Media, addressed to the Underwriters and dated the First Closing Date to the
effect that:
(1) To such counsel's knowledge, (a) this Agreement and the
Securityholders Agreement have been duly authorized, executed and delivered by
or on behalf of Pacific Media and (b) the Agent has been duly and validly
authorized to act as the custodian of the Stock to be sold by Pacific Media; and
the performance by Pacific Media of its obligations pursuant to this Agreement
and the Securityholders Agreement will not result in a breach of, or constitute
a default under, any material indenture, mortgage, deed of trust, trust
(constructive or other), loan agreement, lease, franchise, license or other
agreement or instrument known to such counsel to which Pacific Media is a party
or by which Pacific Media or any of its properties may be bound, or violate any
statute, judgment, decree, order, rule or regulation known to such counsel of
any court or governmental body having jurisdiction over Pacific Media or any of
its properties if such breach or violation would adversely affect a Pacific
Media's ability to perform such Pacific Media's obligations pursuant to this
Agreement or the Securityholders Agreement; and to such counsel's knowledge, no
approval, authorization, order or consent of any court, regulatory body,
administrative agency or other governmental body is required for the execution
and delivery of this Agreement or the Securityholders Agreement or the
consummation by the Pacific Media of the transactions contemplated by this
Agreement, except such as have been obtained and are in full force and effect
under the Securities Act and such as may be required under the rules of the NASD
and applicable Blue Sky laws;
(2) To such counsel's knowledge, Pacific Media has full
right, power and authority to enter into this Agreement and the Securityholders
Agreement and to sell, transfer and deliver the Common Shares to be sold on such
Closing Date by Pacific Media hereunder and upon delivery of and payment for the
Stock to be sold by Pacific Media as provided in this Agreement and upon
registration of such Stock in the names of the Underwriters (or their nominees)
in the stock records of the Company, the Underwriters will be the owners of such
Stock, free and clear of any adverse claim, provided that the Underwriters are
purchasing such Stock in good faith and without notice of any adverse claim; and
(3) To such counsel's knowledge, this Agreement and the
Securityholders Agreement are valid and binding agreements of Pacific Media in
accordance with their terms except as enforceability may be limited by general
equitable principles, bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and except with respect to
those provisions relating to indemnities or contributions for liabilities under
the Securities Act, as to which no opinion need be expressed.
Counsel rendering the foregoing opinion may rely as to questions of law not
involving the laws of the United States, of the State of California or the
corporate laws of the State of Delaware upon opinions of local or foreign
counsel satisfactory in form and scope to counsel for the
-29-
Underwriters. Copies of any opinions so relied upon shall be delivered to the
Representatives and to counsel for the Underwriters and the foregoing opinion
shall also state that counsel knows of no reason the Underwriters are not
entitled to rely upon the opinions of such local counsel.
(iii) An opinion of Skjerven, Morrill, XxxXxxxxxx, Xxxxxxxx &
Xxxxx, the Company's intellectual property counsel, addressed to the
Underwriters and dated the First Closing Date or the Second Closing Date, as the
case may be, to the effect that:
(1) To such counsel's knowledge, the Company owns all
patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, maskworks, copyrights, licenses, inventions, trade
secrets and rights described in the Prospectus as being owned by it or necessary
for the conduct of its business, and such counsel is not aware of any claim to
the contrary or any challenge by any other person to the ownership rights of the
Company with respect to the foregoing;
(2) No fact has come to such counsel's attention that would
lead such counsel to believe that the patents presently issued and held by the
Company are not valid and enforceable.
(3) Such counsel is not aware of any material fact with
respect to the patent applications of the Company presently on file that (a)
would preclude the issuance of patents with respect to such applications or (b)
would lead such counsel to believe that such patents when issued would not be
valid and enforceable.
(4) Such counsel is not aware of any legal actions, claims
or proceedings pending or threatened against the Company alleging that the
Company has infringed or currently is infringing or otherwise violating any
patents rights, trademarks, service marks, trade name rights, maskworks,
copyrights, licenses, inventions, trade secrets and similar rights owned by any
other person or entity and no fact has come to such counsel's attention that any
of the Company's present or proposed products or processes described in the
Prospectus have infringed or currently infringe any patents, trademarks,
trademark registrations, service marks, service xxxx registrations, trade names,
maskworks, copyrights, licenses, inventions, trade secrets and rights owned by
any other person or entity.
(5) Such counsel has reviewed the descriptions of patents
and patent applications under the caption "Business -- Intellectual Property
Rights" in the Registration Statement and Prospectus, and, to the extent they
constitute matters of law or legal conclusions, these descriptions are true and
correct in all material respects and fairly present the patent situation of the
Company; and
(6) Nothing has come to such counsel's attention that causes
such counsel to believe that, as of the date the Registration Statement became
effective and as of the date of such opinion, the statements set forth under the
caption "Business -- Intellectual Property Rights" in the Registration Statement
and Prospectus contain any untrue statement of a material fact or omit
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to state a material fact necessary to make the statements made therein, in light
of the circumstances under which they were made, not misleading.
(iv) Such opinion or opinions of Wilson, Sonsini, Xxxxxxxx &
Xxxxxx Professional Corporation, counsel for the Underwriters dated the First
Closing Date or the Second Closing Date, as the case may be, with respect to the
incorporation of the Company, the sufficiency of all corporate proceedings and
other legal matters relating to this Agreement, the validity of the Stock, the
Registration Statement and the Prospectus and other related matters as you may
reasonably require, and the Company and the Selling Securityholders shall have
furnished to such counsel such documents and shall have provided to them such
papers and records as they may reasonably request for the purpose of enabling
them to pass upon such matters. In connection with such opinions, such counsel
may rely on representations or certificates of officers of the Company and
governmental officials.
(v) A certificate of the Company executed by the Chairman of the
Board or President and the chief financial or accounting officer of the Company,
dated the First Closing Date or the Second Closing Date, as the case may be, to
the effect that:
(1) The representations and warranties of the Company set
forth in Section 2 of this Agreement are true and correct as of the date of this
Agreement and as of the First Closing Date or the Second Closing Date, as the
case may be, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied on or prior to each
such Closing Date;
(2) To their knowledge (a) the Commission has not issued any
order preventing or suspending the use of the Prospectus or any Preliminary
Prospectus filed as a part of the Registration Statement or any amendment
thereto; (b) no stop order suspending the effectiveness of the Registration
Statement has been issued; and (c) no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act;
(3) Each of the respective signers of the certificate has
carefully examined the Registration Statement and the Prospectus; in his opinion
and to the best of his knowledge, neither the Registration Statement nor the
Prospectus nor any amendment or supplement thereto includes any untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(4) Since the initial date on which the Registration
Statement was filed, no agreement, written or oral, transaction or event has
occurred which is required to be set forth in an amendment to the Registration
Statement or in a supplement to or amendment of any prospectus which has not
been disclosed in such a supplement or amendment;
(5) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as disclosed
in or contemplated by the Prospectus, (a) there has not been any material
adverse change or a development involving a material adverse change in the
condition (financial or otherwise), business, properties, results of operations
or
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management of the Company and its subsidiaries, taken as a whole, (b) no legal
or governmental action, suit or proceeding is pending or threatened against the
Company or any of its subsidiaries which is material to the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, or which may adversely affect the transactions
contemplated by this Agreement, (c) neither the Company nor any of its
subsidiaries has entered into any verbal or written agreement or other
transaction which is not in the ordinary course of business or which could
result in a material reduction in the future net income of the Company and its
subsidiaries, taken as a whole, or incurred any material liability or
obligation, direct, contingent or indirect, made any change in its capital
stock, made any material change in its short-term debt or funded debt or
repurchased or otherwise acquired any of the Company's capital stock, and (d)
the Company has not declared or paid any dividend, or made any other
distribution, upon its outstanding capital stock payable to Securityholders of
record on a date prior to the First Closing Date or Second Closing Date; and
(6) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus and except as disclosed
in or contemplated by the Prospectus, the Company and its subsidiaries have not
sustained a material loss or damage by strike, fire, flood, windstorm, accident
or other calamity (whether or not insured).
(vi) On the First Closing Date or the Second Closing Date, as the
case may be, a certificate, dated such Closing Date and addressed to you, signed
by or on behalf of each of the Selling Securityholders to the effect that the
representations and warranties of such Selling Securityholder in Section 3 of
this Agreement are true and correct, as if made at and as of the First Closing
Date or the Second Closing Date, as the case may be, and that such Selling
Securityholder has complied with all the agreements and satisfied all the
conditions on his part to be performed or satisfied prior to the First Closing
Date or the Second Closing Date, as the case may be.
(vii) You shall have received from KPMG, a letter or letters,
addressed to the Underwriters and dated the First Closing Date and the Second
Closing Date confirming that they are independent public accountants with
respect to the Company within the meaning of the Securities Act and the
applicable published rules and regulations thereunder and based upon the
procedures described in their letter delivered to you concurrently with the
execution of this Agreement (herein called the Original Letter), but carried out
to a date not more than three business days prior to the First Closing Date or
Second Closing Date (i) confirming, to the extent true, that the statements and
conclusions set forth in the Original Letter are accurate as of the First
Closing Date or Second Closing Date, as the case may be, and (ii) setting forth
any revisions and additions to the statements and conclusions set forth in the
Original Letter which are necessary to reflect any changes in the facts
described in the Original Letter since the date of the Original Letter or to
reflect the availability of more recent financial statements, data or
information. The letters shall not disclose any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company or any of its subsidiaries which, in your sole judgment, makes it
impractical or inadvisable to proceed with the public offering of the Stock or
the purchase of the Option Stock as contemplated by the Prospectus.
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(viii) On or prior to the First Closing Date, you shall have
received from all directors, officers, and Selling Securityholders agreements,
in form reasonably satisfactory to Xxxxxxxxx & Xxxxx LLC, stating that, without
the prior written consent of Xxxxxxxxx & Xxxxx LLC on behalf of the
Underwriters, such person or entity will not, for a period of 90 days following
the commencement of the public offering of the Stock by the Underwriters,
directly or indirectly, (i) sell, offer, contract to sell, make any short sale,
pledge, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any shares of Common Stock or any securities convertible into or
exchangeable or exercisable for or any rights to purchase or acquire Common
Stock or (ii) enter into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences or ownership of Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise.
(ix) You shall have been furnished evidence in usual written or
telegraphic form from the appropriate authorities of the several jurisdictions,
or other evidence satisfactory to you, of the qualification referred to in
paragraph (f) of Section 7 hereof.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the
Underwriters. The Company shall furnish you with such manually signed or
conformed copies of such opinions, certificates, letters and documents as you
reasonably request. Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the Underwriters as
to the statements made therein.
(d) You shall be satisfied that (i) as of the Effective Date, the
statements made in the Registration Statement and the Prospectus were true and
correct in all material respects and neither the Registration Statement nor the
Prospectus omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein, respectively, not misleading,
(ii) since the Effective Date, no event has occurred which should have been set
forth in a supplement or amendment to the Prospectus which has not been set
forth in such a supplement or amendment, (iii) since the respective dates as of
which information is given in the Registration Statement in the form in which it
originally became effective and the Prospectus contained therein, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the business, properties, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary course of
business, and, since such dates, except in the ordinary course of business,
neither the Company nor any of its subsidiaries has entered into any material
transaction not referred to in the Registration Statement in the form in which
it originally became effective and the Prospectus contained therein, (iv)
neither the Company nor any of its subsidiaries has any material contingent
obligations which are not disclosed in the Registration Statement and the
Prospectus, (v) there are not any pending or known threatened legal proceedings
to which the Company or any of its subsidiaries is a party or of which property
of the Company or any of its subsidiaries is the subject which are material and
which are not disclosed in the Registration Statement and the Prospectus, (vi)
there are not any franchises,
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contracts, leases or other documents which are required to be filed as exhibits
to the Registration Statement which have not been filed as required, (vii) the
representations and warranties of the Company herein are true and correct in all
material respects as of the First Closing Date or the Second Closing Date, as
the case may be, and (viii) there has not been any material change in the market
for securities in general or in political, financial or economic conditions from
those reasonably foreseeable as to render it impracticable in your reasonable
judgment to make a public offering of the Stock, or a material adverse change in
market levels for securities in general (or those of companies in particular) or
financial or economic conditions which render it inadvisable to proceed.
(e) In case any of the conditions specified in this Section 10 shall
not be fulfilled, this Agreement may be terminated by you by giving notice to
the Company and to the Selling Securityholders. Any such termination shall be
without liability of the Company or the Selling Securityholders to the
Underwriters and without liability of the Underwriters to the Company or the
Selling Securityholders; PROVIDED, HOWEVER, that (i) in the event of such
termination, the Company and the Selling Securityholders agree to indemnify and
hold harmless the Underwriters from all costs or expenses incident to the
performance of the obligations of the Company and the Selling Securityholders
under this Agreement, including all costs and expenses referred to in paragraphs
(i) and (j) of Section 7 hereof, and (ii) if this Agreement is terminated by you
because of any refusal, inability or failure on the part of the Company or the
Selling Securityholders to perform any agreement herein, to fulfill any of the
conditions herein, or to comply with any provision hereof other than by reason
of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the transactions contemplated hereby.
11. CONDITIONS OF THE OBLIGATION OF THE COMPANY AND THE SELLING
SECURITYHOLDERS. The obligation of the Company and the Selling Securityholders
to deliver the Stock shall be subject to the conditions that (a) the
Registration Statement shall have become effective and (b) no stop order
suspending the effectiveness thereof shall be in effect and no proceedings
therefor shall be pending or threatened by the Commission.
In case either of the conditions specified in this Section 11 shall not be
fulfilled, this Agreement may be terminated by the Company and the Selling
Securityholders by giving notice to you. Any such termination shall be without
liability of the Company and the Selling Securityholders to the Underwriters and
without liability of the Underwriters to the Company or the Selling
Securityholders; PROVIDED, HOWEVER, that in the event of any such termination
the Company and the Selling Securityholders jointly and severally agree to
indemnify and hold harmless the Underwriters from all costs or expenses incident
to the performance of the obligations of the Company and the Selling
Securityholders under this Agreement, including all costs and expenses referred
to in paragraphs (i) and (j) of Section 7 hereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of the Company, the Selling Securityholders and the several
Underwriters and, with respect to the
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provisions of Section 8 hereof, the several parties (in addition to the Company,
the Selling Securityholders and the several Underwriters) indemnified under the
provisions of said Section 8, and their respective personal representatives,
successors and assigns. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Stock from any of the
several Underwriters.
NOTICES. Except as otherwise provided herein, all communications hereunder
shall be in writing or by telegraph and, if to the Underwriters, shall be
mailed, telegraphed or delivered to Xxxxxxxxx & Xxxxx LLC, Xxx Xxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xx. Xxxxxxx X. Xxxxxxxx, with a copy to
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., at 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxx, Esq.; and if to the Company,
shall be mailed, telegraphed or delivered to it at its office, 0000 Xxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxx; and if to the
Selling Securityholders, shall be mailed, telegraphed or delivered to the
Selling Securityholders in care of (i) the Company at 0000 Xxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxx X. Xxxx with a copy to Manatt,
Xxxxxx & Xxxxxxxx LLP and (ii) Pacific Media Development, Inc., x/x Xxxxxx
Xxxxxxx xx Xxxxx, Xxxxxxx, 00, 3-chome, Xxxxxx-xxx, Xxxxxxxx-xx Xxxxxxxx 000,
Xxxxx, with a copy to Xxxxxx X. Xxxxxxxxx XX, Esq., 000 Xxxxxx Xxxxxx, Xxxxx
000, Xxxx Xxxx, Xxxxxxxxxx 00000. All notices given by telegraph shall be
promptly confirmed by letter.
13. MISCELLANEOUS. The reimbursement and indemnification 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
the Selling Securityholders or their respective directors or officers, and (c)
delivery and payment for the Stock under this Agreement; PROVIDED, HOWEVER, that
if this Agreement is terminated prior to the First Closing Date, the provisions
of paragraphs (l) and (m) of Section 7 hereof shall be of no further force or
effect.
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
laws of the State of California.
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Please sign and return to the Company and to the Selling Securityholders in
care of the Company the enclosed duplicates of this letter, whereupon this
letter will become a binding agreement among the Company, the Selling
Securityholders and the several Underwriters in accordance with its terms.
Very truly yours,
MACROVISION CORPORATION
By: ____________________________
Xxxx X. Xxxx, Chairman of the Board of Directors and Chief Executive
Officer
SELLING SECURITYHOLDERS:
By: ____________________________
Xxxx X. Xxxx (Attorney-in-Fact)
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXXXXX & XXXXX LLC
XX XXXXX SECURITIES CORPORATION
U.S. BANCORP XXXXX XXXXXXX, INC.
ING BARINGS LLC
By Xxxxxxxxx & Xxxxx LLC
By: ____________________________
Xxx Xxxxxxxx, Managing Director
Acting on behalf of the several Underwriters,
including themselves, named in Schedule I hereto.
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SCHEDULE I
UNDERWRITERS
UNDERWRITERS NUMBER OF SHARES TO BE PURCHASED
------------ --------------------------------
Xxxxxxxxx & Xxxxx LLC __________
XX Xxxxx Securities Corporation __________
U.S. Bancorp Xxxxx Xxxxxxx Inc. __________
ING Barings LLC __________
Total....................................... __________
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SCHEDULE II
SELLING SECURITYHOLDERS
NAME OF SECURITYHOLDERS NUMBER OF SHARES TO BE SOLD
----------------------- ---------------------------
Xxxxxx Company of Japan 430,000
Xxxxxxx X. Krepick 20,000
Xxxxxxx X. Xxxxxxx 5,000
Xxxxxx Xxxxxxxxxx 5,000
Total....................................... ____________
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