EXHIBIT 1.1
[________________] Shares
THE 3DO COMPANY
Common Stock
UNDERWRITING AGREEMENT
[________, 1999]
XXXXXX XXXXXX XXXXXXXX & CO., INC.
WEDBUSH XXXXXX SECURITIES INC.
As Representatives of the
several Underwriters
c/o Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The 3DO Company, a Delaware corporation (the "Company"), proposes to
issue and sell [____________] shares (the "Firm Shares") of the Company's Common
Stock, $0.01 par value (the "Common Stock"), to you and to the other
underwriters named in Schedule I (collectively, the "Underwriters"), for whom
you are acting as Representatives (the "Representatives"). The Company has also
agreed to grant to you and the other Underwriters an option (the "Option") to
purchase up to an additional [__________] [15% of total Firm Shares] shares of
Common Stock (the "Option Shares") on the terms and for the purposes set forth
in Section 1(b). The Firm Shares and the Option Shares are referred to
collectively herein as the "Shares".
The public offering price per share at which the Shares are initially
offered and the purchase price per share for the Shares to be paid by the
several Underwriters shall be agreed upon by the Company and the
Representatives, acting on behalf of the several Underwriters, and such
agreement shall be set forth in a separate written instrument substantially in
the form of EXHIBIT A hereto (the "Price Determination Agreement"). The Price
Determination Agreement may take the form of an exchange of any standard form of
written telecommunication among the Company and the Representatives and shall
specify such applicable information as is indicated in EXHIBIT A hereto. The
offering of the Shares shall be governed by this Agreement, as supplemented by
the Price Determination Agreement. From and after the date of the execution and
delivery of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and, unless the context otherwise indicates, all references
contained herein to "this Agreement" and to the phrase "herein" shall be deemed
to include, the Price Determination Agreement.
The Company confirms as follows its agreements with the Representatives
and the several other Underwriters:
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1. AGREEMENT TO SELL AND PURCHASE.
(a) On the basis of the respective representations,
warranties and agreements of the Company herein contained and subject to all the
terms and conditions of this Agreement: (i) the Company agrees to issue and sell
to the several Underwriters the Firm Shares; and (ii) each of the Underwriters,
severally and not jointly, agrees to purchase from the Company at the purchase
price per share for the Firm Shares to be agreed upon by the Company and the
Representatives, in accordance with Section 1(c) hereof and set forth in the
Price Determination Agreement, the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I, plus such additional number of Firm
Shares which such Underwriter may become obligated to purchase pursuant to
Section 8 hereof. If the Company elects to rely on Rule 430A (as hereinafter
defined), Schedule I may be attached to the Price Determination Agreement.
(b) Subject to all the terms and conditions of this
Agreement, the Company grants the Option to the several Underwriters to
purchase, severally and not jointly, up to [___________] Option Shares from the
Company at the same price per share as the Underwriters shall pay for the Firm
Shares. The Option may be exercised only to cover over-allotments in the sale of
the Firm Shares by the Underwriters and may be exercised in whole or in part at
any time (but not more than once) on or before the [45th] day after the date of
this Agreement (or, if the Company has elected to rely on Rule 430A, on or
before the [45th] day after the date of the Price Determination Agreement), upon
written or telegraphic notice (the "Option Shares Notice") by the
Representatives to the Company no later than 12:00 noon, New York City time, at
least two and no more than five business days before the date specified for
closing in the Option Shares Notice (the "Option Closing Date") setting forth
the aggregate number of Option Shares to be purchased and the time and date for
such purchase. On the Option Closing Date, the Company shall issue and sell to
the Underwriters the number of Option Shares set forth in the Option Shares
Notice, and each Underwriter shall purchase such percentage of the Option Shares
as is equal to the percentage of Firm Shares that such Underwriter is
purchasing, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares.
(c) The public offering price per share at which the Shares
are initially offered and the purchase price per share for the Firm Shares to be
paid by the several Underwriters shall be agreed upon and set forth in the Price
Determination Agreement. In the event such prices have not been agreed upon and
the Price Determination Agreement has not been executed by the close of business
on the fourteenth business day following the date on which the Registration
Statement (as hereinafter defined) becomes effective, this Agreement shall
terminate forthwith, without liability of any party to any other party.
2. DELIVERY AND PAYMENT. Delivery of the Firm Shares shall be made
to the Representatives for the accounts of the Underwriters against payment of
the purchase price therefor by wire transfer of immediately available funds to
the order of the Company at the offices of Xxxxxxxx & Xxxxxxxx LLP, counsel to
the Underwriters, located at [1290 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000]. Such payments shall be made at 10:00 a.m., New York City time,
on [_______________, 1999], or at such time on such other date, not later than
ten business days after such date, as may be agreed upon by the Company and the
Representatives (such date is hereinafter referred to as the "Closing Date").
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To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) shall take
place at the offices specified above for the closing, at the time and date
(which may be the Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive form and
shall be registered in such names and in such denominations as the
Representatives shall request at least two full business days prior to the
Closing Date or the Option Closing Date, as the case may be, by written notice
to the Company. For the purpose of expediting the checking and packaging of
certificates for the Shares, the Company agrees to make such certificates
available for inspection at least 24 hours prior to the Closing Date or the
Option Closing Date, as the case may be.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Shares and the Option Shares by the Company to
the respective Underwriters shall be borne by the Company. The Company shall pay
and hold each Underwriter and any subsequent holder of the Firm Shares and the
Option Shares harmless from, any and all liabilities with respect to or
resulting from any failure or delay in paying Federal and state stamp and other
transfer taxes, if any, which may be payable or determined to be payable in
connection with the original issuance or sale to such Underwriter of the Firm
Shares and the Option Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and covenants with, each Underwriter that:
(a) The company meets the requirements for use of Form S-3
and a registration statement (Registration No. 333-[_________]) on Form S-3
relating to the Shares, including a preliminary prospectus and such amendments
to such registration statement as may have been required to the date of this
Agreement, has been prepared by the Company under the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
(collectively referred to as the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, and has been filed with the
Commission. The term "preliminary prospectus" as used herein means a preliminary
prospectus as contemplated by Rule 430 or Rule 430A ("Rule 430A") of the Rules
and Regulations included at any time as part of the registration statement.
Copies of such registration statement and amendments and of each related
preliminary prospectus have been delivered to the Representatives. The term
"Registration Statement" means the registration statement as amended at the time
it becomes or became effective (the "Effective Date"), including financial
statements and all exhibits and any information deemed to be included by Rule
430A or Rule 434 of the Rules and Regulations. If the Company files a
registration statement to register a portion of the Shares and relies on Rule
462(b) of the Rules and Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to the "Registration Statement" shall be deemed
to include the Rule 462 Registration Statement, as amended from time to time.
The term "Prospectus" means the prospectus as first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the Effective Date. Any reference herein to the Registration Statement, any
preliminary prospectus or the
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Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the Effective Date or the date of such preliminary prospectus or the Prospectus,
as the case may be. Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date, or the date of
any preliminary prospectus or the Prospectus, as the case may be, and deemed to
be incorporated therein by reference.
(b) On the Effective Date, the date the Prospectus is first
filed with the Commission pursuant to Rule 424(b) (if required), at all times
subsequent to and including the Closing Date and, if later, the Option Closing
Date and when any post-effective amendment to the Registration Statement becomes
effective or any amendment or supplement to the Prospectus is filed with the
Commission, the Registration Statement and the Prospectus (as amended or as
supplemented if the Company shall have filed with the Commission any amendment
or supplement thereto), including the financial statements included or
incorporated by reference in the Prospectus, did or will comply in all material
respects with all applicable provisions of the Act, the Rules and Regulations,
the Exchange Act and the rules and regulations thereunder (the "Exchange Act
Rules and Regulations") and will contain all statements required to be stated
therein in accordance with the Act, the Rules and Regulations, the Exchange Act
and the Exchange Act Rules and Regulations. On the Effective Date and when any
post-effective amendment to the Registration Statement becomes effective, no
part of the Registration Statement or any such amendment did or will contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading. At the Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission and at the Closing
Date and, if later, the Option Closing Date, the Prospectus did not or will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing representations and
warranties in this Section 3(b) do not apply to any statements or omissions made
in reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Representatives specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. For all purposes of this Agreement, the amounts of the
selling concession and reallowance set forth in the Prospectus under
"Underwriting" constitute the only information relating to any Underwriter
furnished in writing to the Company by or on behalf of the Representatives
specifically for inclusion in the preliminary prospectus, the Registration
Statement or the Prospectus. The Company has not distributed any offering
material in connection with the offering or sale of the Shares other than the
Registration Statement, the preliminary prospectus, the Prospectus or any other
materials, if any, permitted by the Act.
(c) The documents which are incorporated by reference in the
preliminary prospectus and the Prospectus or from which information is so
incorporated by reference, when they become effective or were filed with the
Commission, as the case may be, complied in all material respects with the
requirements of the Act or the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations; and any documents so filed
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and incorporated by reference subsequent to the Effective Date shall, when they
are filed with the Commission, conform in all material respects with the
requirements of the Act or the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations.
(d) The only subsidiaries (as defined in the Rules and
Regulations) of the Company are the subsidiaries listed on Exhibit 21 to the
Registration Statement (the "Subsidiaries"). The Company and each of its
Subsidiaries is, and at the Closing Date will be, a corporation duly organized,
validly existing and in good standing (if such status is recognized by
governmental authorities) under the laws of its jurisdiction of incorporation.
Each of the Company and its Subsidiaries is not now, and at the Closing Date
will not be, in violation of any provision of its certificate of incorporation
or by-laws. The Company and each of its Subsidiaries has, and at the Closing
Date will have, full power and authority to conduct all the activities conducted
by it, to own or lease all the assets owned or leased by it and to conduct its
business as described in the Registration Statement and the Prospectus. The
Company and each of its Subsidiaries is, and at the Closing Date will be, duly
licensed or qualified to do business in and in good standing as a foreign
corporation in all jurisdictions in which the nature of the activities conducted
by it or the character of the assets owned or leased by it makes such licensing
or qualification necessary, except where the failure to be so qualified would
not have a material adverse effect, singly or in the aggregate, on the business,
properties, prospects, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole (a "Material
Adverse Effect"). All of the issued and outstanding shares of capital stock of
the Subsidiaries have been duly authorized and validly issued, and are fully
paid and non-assessable and, except as disclosed in the Prospectus, are owned by
the Company free and clear of all liens, encumbrances and claims. Except for the
stock of the Subsidiaries and as disclosed in the Registration Statement, the
Company does not own, and at the Closing Date will not own, directly or
indirectly, any shares of stock or any other equity or long-term debt securities
of any corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity. Complete and correct copies of the
certificate of incorporation and of the by-laws of the Company and each of its
Subsidiaries and all amendments thereto have been delivered to the
Representatives, and no changes therein will be made subsequent to the date
hereof and prior to the Closing Date or, if later, the Option Closing Date.
(e) The outstanding shares of Common Stock have been and the
Shares to be issued and sold by the Company upon such issuance will be, duly
authorized, validly issued, fully paid and nonassessable and will not be subject
to any preemptive, first refusal, or similar right. The description of the
Common Stock in the Registration Statement and the Prospectus under the caption
"Description of Capital Stock" is now, and at the Closing Date will be, complete
and accurate in all respects. Except as set forth in the Prospectus, the Company
does not have outstanding, and at the Closing Date will not have outstanding,
any options to purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, any shares of Common Stock, any shares of capital stock of any
Subsidiary or any such warrants, convertible securities or obligations.
(f) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the Prospectus
present fairly in all material respects the consolidated financial condition of
the Company and its Subsidiaries as of the respective
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dates thereof and the consolidated results of operations and cash flows of the
Company and its Subsidiaries for the respective periods covered thereby, all in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the entire period involved, except as otherwise disclosed in
the Prospectus. No other financial statements or schedules of the Company are
required by the Act, the Rules and Regulations, the Exchange Act or the Exchange
Act Rules and Regulations to be included or incorporated by reference in the
Registration Statement or the Prospectus. KPMG LLP (the "Accountants") who have
reported on such financial statements and schedules, are independent accountants
with respect to the Company as required by the Act and the Rules and
Regulations. The statements included in the Registration Statement with respect
to the Accountants pursuant to Rule 509 of Regulation S-K of the Rules and
Regulations are true and correct in all material respects.
(g) The Company maintains a system of internal accounting
control sufficient to provide reasonable assurance that: (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(h) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus and prior
to the Closing Date, except as set forth in or contemplated by the Registration
Statement and the Prospectus, (i) there has not been and will not have been any
material change in the capitalization of the Company (except for the issuance of
Common Stock upon the exercise of stock options granted under the Company's
stock option or other employee benefit plans), (ii) there has not been and will
not have been any material adverse change in the business, properties,
prospects, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries taken as a whole (a "Material Adverse Change"),
(iii) neither the Company nor any of its Subsidiaries has incurred, nor will it
incur any material liabilities or obligations, direct or contingent, nor has it
entered into, nor will it enter into any material transactions other than
pursuant to this Agreement and the transactions referred to herein, and (iv) the
Company has not and will not have paid or declared any dividends or other
distributions of any kind on any class of its capital stock.
(i) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended.
(j) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending against or
affecting the Company or any of its Subsidiaries or any of their respective
officers or directors in their capacity as such, before or by any Federal or
state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable ruling, decision
or finding could reasonably be expected to have a Material Adverse Effect and,
to the knowledge of the Company, no such proceedings are threatened. Neither the
Company nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any
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authorization, approval, order, license, certificate, franchise or permit which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect. There are no pending
investigations known to the Company involving the Company or any of its
Subsidiaries by any governmental agency having jurisdiction over the Company or
its Subsidiaries or their respective businesses or operations.
(k) Except as would not have a Material Adverse Effect, each
of the Company and its Subsidiaries has, and at the Closing Date will have, (i)
all governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to carry on its business as contemplated in the
Prospectus, (ii) complied in all respects with all laws, regulations and orders
applicable to it or its business and (iii) performed all obligations required to
be performed by it, and is not, and at the Closing Date will not be, in default
under any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement, lease, license agreement, contract
or other agreement or instrument (collectively, a "Contract or Other Agreement")
to which it is a party or by which its property is bound or affected. To the
knowledge of the Company and each of its Subsidiaries, no other party under any
Contract or Other Agreement to which it is a party is in default in any respect
thereunder or has given written or oral notice to the Company, its Subsidiaries
or any of their respective officers or directors of such other party's intention
to terminate, cancel or refuse to renew any Contract or Other Agreement.
(l) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is required
in connection with the authorization, issuance, transfer, sale or delivery of
the Shares by the Company, in connection with the execution, delivery and
performance of this Agreement by the Company or in connection with the taking by
the Company of any action contemplated hereby or thereby, except as have been
obtained under the Act or the Rules and Regulations and such as may be required
under state securities or Blue Sky laws or the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") or regulations of any
jurisdiction in the United States in connection with the purchase and
distribution by the Underwriters of the Shares to be sold by the Company.
(m) The Company has and will have full corporate power and
authority to enter into this Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and (assuming the due authorization,
execution and delivery by the Representatives) constitutes a valid and binding
agreement of the Company and is enforceable against the Company in accordance
with the terms hereof. The performance of this Agreement and the consummation of
the transactions contemplated hereby, and the application of the net proceeds
from the offering and sale of the Shares to be sold by the Company in the manner
set forth in the Prospectus under "Use of Proceeds" will not result in the
creation or imposition of any lien, charge or encumbrance upon any of the assets
of the Company or any of its Subsidiaries pursuant to the terms or provisions
of, or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate any of
its obligations under, or result in the acceleration of any obligation under,
(x) the certificate of incorporation or by-laws of the Company or any of its
Subsidiaries, or (y) any Contract or other Agreement 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 properties is bound or affected, and will not violate
or
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conflict with any judgment, ruling, decree, order, statute, rule or regulation
of any court or other governmental agency or body applicable to the business or
properties of the Company or any of its Subsidiaries, except where such breach,
violation or default would not have a Material Adverse Effect.
(n) Each of the Company and its Subsidiaries has good and
marketable title to all properties and assets described in the Prospectus to be
owned by each such entity, respectively, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in the Prospectus or
are not material to the business of the Company or its Subsidiaries. Each of the
Company and its Subsidiaries has valid, subsisting and enforceable leases or
licenses, as the case may be, for the properties (whether tangible or
intangible) described in the Prospectus to be leased or licensed by it, with
such exceptions as are not material and do not materially interfere with the use
made and proposed to be made of such properties by the Company and such
Subsidiaries.
(o) There is no document or Contract or Other Agreement of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement which is
not described or filed as required. All such Contracts or Other Agreements to
which the Company or any Subsidiary is a party have been duly authorized,
executed and delivered by the Company or such Subsidiary and (assuming the due
authorization, execution and delivery thereof by the other parties to such
Contracts and Other Agreements) constitute valid and binding agreements of the
Company or such Subsidiary and are enforceable against the Company or such
Subsidiary in accordance with the terms thereof.
(p) No statement, representation, warranty or covenant made
by the Company in this Agreement or made in any certificate or document required
by this Agreement to be delivered to the Representatives was or will be, when
made, inaccurate, untrue or incorrect.
(q) Neither the Company nor, to the knowledge of the Company,
any of its directors, officers or controlling persons has taken, directly or
indirectly, any action intended to cause or result in, or which might reasonably
be expected to cause or result in, or which has constituted, stabilization or
manipulation, under the Act or otherwise, of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(r) No holder of securities of the Company has rights to
register any securities of the Company because of the filing of the Registration
Statement, except for rights that have been duly waived by such holder.
(s) The Shares are duly authorized for listing on the Nasdaq
National Market, subject only to notice of issuance of the Shares.
(t) Neither the Company nor any of its Subsidiaries is
involved in any material labor dispute, nor, to the knowledge of the Company, is
any such dispute threatened.
(u) The Company and its Subsidiaries own, or are licensed or
otherwise have the full right to use, all material trademarks and trade names
which are used in or necessary for the conduct of their respective businesses as
described in the Prospectus. Except as otherwise
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disclosed in the Prospectus, neither the Company nor any of its Subsidiaries has
received any notice of any claims asserted by any person with respect to the use
of any such trademarks or trade names, or challenging or questioning the
validity or effectiveness of any such trademark or trade name. The use, in
connection with the business and operations of the Company and its Subsidiaries
of such trademarks and trade names does not, to the Company's knowledge,
infringe on the rights of any person.
(v) Neither the Company, its Subsidiaries nor, to the best of
the Company's knowledge, any of their respective officers, directors, partners,
employees, agents or affiliates or any other person acting on behalf of the
Company or any of its Subsidiaries has made or agreed to make any payment of
funds or other items of value, or received or retained any funds or other items
of value, in violation of any law or regulation or of a character required to be
disclosed in the Prospectus.
4. AGREEMENTS OF THE COMPANY. The Company with the several
Underwriters as follows:
(a) The Company shall not, either prior to the Effective Date
or thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by an Underwriter or dealer,
file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Representatives within a reasonable period of time prior to the filing thereof
and the Representatives shall not have objected thereto in good faith.
(b) The Company shall use its best efforts to cause the
Registration Statement to become effective, and shall notify the Representatives
promptly (1) when the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective, (2) of any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (3) of the commencement by the
Commission or by any state securities commission or other securities regulator
of any proceedings for the suspension of the qualification of any of the Shares
for offering or sale in any jurisdiction or of the initiation, or the
threatening, of any proceeding for that purpose, including, without limitation,
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that purpose
or the threat thereof, (4) of the happening of any event during the period
mentioned in the second sentence of Section 4(e) hereof that in the judgment of
the Company makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or that requires the making of any changes in
the Registration Statement or the Prospectus in order to make the statements
therein, in light of the circumstances in which they are made, not misleading
and (5) of receipt by the Company or any attorney or other representative of the
Company of any other communication from the Commission or other securities
regulator relating to the Company, the Registration Statement, any preliminary
prospectus or the Prospectus. If at any time the Commission shall issue any
order suspending the effectiveness of the Registration Statement, if so
requested by the Representatives, the Company shall make every reasonable effort
to obtain the withdrawal of such order at the earliest possible moment. The
Company shall use its best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 430A and to notify the
Representatives promptly of all such filings.
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(c) The Company shall furnish to counsel for the
Underwriters, without charge, one manually signed copy of the Registration
Statement and of any post-effective amendment thereto, including financial
statements and schedules, and all exhibits thereto (including any documents
filed under the Exchange Act and deemed to be incorporated by reference into the
Prospectus) and shall furnish to the Representatives, without charge, for
transmittal to each of the other Underwriters, a copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules but without exhibits.
(d) The Company shall comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time,
the Company shall deliver to each of the Underwriters, without charge, as many
copies of the Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by the several Underwriters
and by all dealers to whom the Shares may be sold, both in connection with the
offering or sale of the Shares and for any period of time thereafter during
which the Prospectus is required by law to be delivered in connection therewith.
If during such period of time any event shall occur which in the judgment of the
Company or counsel to the Underwriters is necessary to be set forth in the
Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made, not misleading, or if it is necessary to
supplement or amend the Prospectus to comply with law, the Company shall, as
promptly as practicable, prepare and duly file with the Commission an
appropriate supplement or amendment thereto, and shall deliver to each of the
Underwriters, without charge, such number of copies thereof as the
Representatives may reasonably request. The Company shall not file with the
Commission any document under the Exchange Act before the termination of the
offering of the Shares by the Underwriters if such document would be deemed to
be incorporated by reference into the Prospectus, unless such document has been
reviewed and approved by the Representatives after reasonable notice thereof.
(f) Prior to any public offering of the Shares by the
Underwriters, the Company shall cooperate with the Representatives and counsel
to the Underwriters in connection with the registration or qualification of the
Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representatives may request, including, without limitation,
the provinces and territories of Canada and other jurisdictions outside of the
United States; provided, however, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the
Effective Date, the Company shall furnish to the Representatives and each other
Underwriter who may so request copies of such financial statements and other
periodic and special reports as the Company may from time to time distribute
generally to the holders of any class of its capital stock, and will furnish to
the Representatives and each other Underwriter who may so request a copy of each
annual or other report it shall be required to file with the Commission.
10
(h) The Company shall make generally available to holders of
its securities as soon as reasonably practicable but in no event later than the
last day of the fifteenth full calendar month following the calendar quarter in
which the Effective Date falls, an earnings statement (which need not be audited
but shall be in reasonable detail) for a period of 12 months commencing after
the Effective Date, and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 of the Rules and Regulations).
(i) Whether or not any of the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, the Company
shall pay, or reimburse if paid by the Representatives, all costs and expenses
incident to the performance of the obligations of the Company under this
Agreement, including but not limited to costs and expenses of or relating to (1)
the preparation, printing and filing of the Registration Statement and exhibits
to it, each preliminary prospectus, the Prospectus and any amendment or
supplement to the Registration Statement or the Prospectus, (2) the preparation
and delivery of certificates representing the Shares, (3) the printing of this
Agreement, the Agreement Among Underwriters, any Dealer Agreements, any
Underwriters' Questionnaire and the Agreement and Power of Attorney, (4)
furnishing (including costs of shipping, mailing and overnight courier) such
copies of the Registration Statement, the Prospectus and any preliminary
prospectus (including any documents incorporated by reference therein), and all
amendments and supplements thereto, as may be requested for use in connection
with the offering and sale of the Shares by the Underwriters or by dealers to
whom Shares may be sold, (5) the listing of the Shares on the Nasdaq National
Market, (6) any filings required to be made by the Underwriters with the NASD,
and the fees, disbursements and other charges of counsel for the Underwriters in
connection therewith, (7) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions
designated pursuant to Section 4(f) hereof, including the fees, disbursements
and other charges of counsel to the Underwriters in connection therewith, and
the preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (8) counsel to the Company, (9) the transfer agent for the Shares,
(10) the Accountants, (11) the marketing of the offering by the Company,
including, without limitation, all costs and expenses of aircraft rentals,
commercial airline tickets, hotels, meals and other travel expenses of officers,
employees, agents and other representatives of the Company (but not officers,
employees, agents or other representatives of the Underwriters) and (12) all
fees, costs and expenses for consultants used by the Company in connection with
the offering.
(j) If this Agreement shall be terminated by the Company
pursuant to any of the provisions hereof (other than pursuant to Section 8) or
if for any reason the Company shall be unable to perform its obligations
hereunder, the Company shall reimburse the several Underwriters for all
out-of-pocket expenses (including the fees, disbursements and other charges of
counsel to the Underwriters) reasonably incurred by them in connection herewith.
(k) The Company shall not at any time, directly or
indirectly, take any action intended to cause or result in, or which might
reasonably be expected to cause or result in, or which will constitute,
stabilization or manipulation, under the Act or otherwise, of the price of the
shares of Common Stock to facilitate the sale or resale of any of the Shares.
11
(l) The Company shall apply the net proceeds from the
offering and sale of the Shares to be sold by the Company in the manner set
forth in the Prospectus under "Use of Proceeds."
(m) The Company shall not, and the Company shall cause each
of its executive officers and directors to enter into agreements with the
Representatives, in form and substance acceptable to the Representatives, to the
effect that they shall not, for a period of 180 days after the date of the
Prospectus, without the prior written consent of Xxxxxx Xxxxxx Xxxxxxxx & Co.,
Inc. ("GKM"), offer to sell, sell, contract to sell, grant any option to sell
(other than pursuant to the Company's employee benefit plans described in the
Prospectus), or otherwise dispose of, or require the Company to file with the
Commission a registration statement under the Act (other than on Form S-8) to
register, any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to acquire shares of
Common Stock of which such person is now, or may in the future become, the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act),
other than as bona fide gifts to persons who agree in writing with GKM to be
bound by the provisions of this Section 4(m).
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. In addition
to the execution and delivery of the Price Determination Agreement, the
obligations of each Underwriter hereunder are subject to the following
conditions:
(a) Notification that the Registration Statement has become
effective shall be received by the Representatives not later than 6:00 p.m., New
York City time, on the date of this Agreement or at such later date and time as
shall be consented to in writing by the Representatives and all filings required
by Rule 424 of the Rules and Regulations and Rule 430A shall have been made.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, which, in the Representatives' reasonable
judgment, makes it impracticable or inadvisable to market the Shares or to
enforce the contracts for the sale of the Shares, (iii) any request for
additional information on the part of the staff of the Commission or any such
authorities shall have been complied with to the satisfaction of the staff of
the Commission or such authorities and (iv) after the date hereof, no amendment
or supplement to the Registration Statement or the Prospectus shall have been
filed unless a copy thereof was first submitted to the Representatives and the
Representatives did not object thereto in good faith, and the Representatives
shall have received certificates, dated the Closing Date and the Option Closing
Date and signed by the Chief Executive Officer or the Chairman of the Board of
Directors of the Company and the Chief Financial Officer of the Company (who
may, as to proceedings threatened, rely upon the best of their information and
belief), to the effect of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there shall not have
been a Material Adverse
12
Change or development involving a prospective Material Adverse Change, whether
or not arising from transactions in the ordinary course of business, in each
case other than as set forth in the Registration Statement and the Prospectus,
(ii) neither the Company nor any of its Subsidiaries shall have sustained any
material loss or interference with its business or properties from fire,
explosion, flood or other casualty, whether or not covered by insurance, or from
any labor dispute or any court or legislative or other governmental action,
order or decree, which is not set forth in the Registration Statement and the
Prospectus, if in the judgment of the Representatives any such development makes
it impracticable or inadvisable to consummate the sale and delivery of the
Shares by the Underwriters at the public offering price, (iii) there shall have
been no transactions, not in the ordinary course of business, entered into by
the Company or any of its Subsidiaries, except as set forth in the Registration
Statement and the Prospectus, and no liabilities or obligations incurred by the
Company or any of its Subsidiaries, in each case from the latest date as of
which the financial condition of the Company and its Subsidiaries is set forth
in the Registration Statement and the Prospectus, which would have a Material
Adverse Effect, (iv) neither the Company nor any of its Subsidiaries has issued
any securities (other than the Shares) or declared or paid any dividend or made
any distribution in respect of its capital stock of any class, debt (long-term
or short-term) or, except in the ordinary course of business, liabilities or
obligations of the Company or any of its Subsidiaries (contingent or otherwise),
except as set forth in the Registration Statement and Prospectus, and (v) no
material amount of the assets of the Company or any of its Subsidiaries shall
have been pledged, mortgaged or otherwise encumbered, except as set forth in the
Registration Statement and Prospectus.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of its
Subsidiaries or any of their respective officers or directors in their
capacities as such, before or by any Federal, state or local court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, in which litigation or proceeding an unfavorable ruling, decision or
finding would have a Material Adverse Effect.
(e) Each of the representations and warranties of the Company
herein shall be true and correct in all material respects at the Closing Date
and, with respect to the Option Shares, at the Option Closing Date, as if made
at the Closing Date and, with respect to the Option Shares, at the Option
Closing Date, and all covenants and agreements contained herein to be performed
by the Company and all conditions contained herein to be fulfilled or complied
with by the Company at or prior to the Closing Date and, with respect to the
Option Shares, at or prior to the Option Closing Date, shall have been duly
performed, fulfilled or complied with.
(f) The Representatives shall have received opinions, each
dated the Closing Date and, with respect to the Option Shares, the Option
Closing Date, satisfactory in form and substance to counsel for the
Underwriters, from Wilson, Sonsini, Xxxxxxxx & Xxxxxx, counsel to the Company,
and from Xxxxx X. Xxxx, General Counsel of the Company.
(g) The Representatives shall have received an opinion, dated
the Closing Date and the Option Closing Date, from Xxxxxxxx & Xxxxxxxx LLP,
counsel to the Underwriters, with respect to the Registration Statement, the
Prospectus and this Agreement, which opinion shall be satisfactory in all
respects to the Representatives.
13
(h) On the date of the Prospectus, the Accountants shall have
furnished to the Representatives a letter, dated the date of its delivery,
addressed to the Representatives and in form and substance satisfactory to the
Representatives, confirming that they are independent accountants with respect
to the Company as required by the Act and the Rules and Regulations and with
respect to the financial and other statistical and numerical information
contained in the Registration Statement or incorporated by reference therein. At
the Closing Date and, as to the Option Shares, the Option Closing Date, the
Accountants shall have furnished to the Representatives a letter, dated the date
of its delivery, which shall confirm, on the basis of a review in accordance
with the procedures set forth in the letter from the Accountants, that nothing
has come to their attention during the period from the date of the letter
referred to in the prior sentence to a date (specified in the letter) not more
than five days prior to the Closing Date and the Option Closing Date which would
require any change in their letter dated the date of the Prospectus, if it were
required to be dated and delivered at the Closing Date and the Option Closing
Date.
(i) At the Closing Date and, as to the Option Shares, the
Option Closing Date, there shall be furnished to the Representatives an accurate
certificate, dated the date of its delivery, signed by the Chief Executive
Officer and the Chief Financial Officer of the Company, in form and substance
satisfactory to the Representatives, to the effect that:
1. Each signer of such certificate has carefully examined
the Registration Statement and the Prospectus (including any documents
filed under the Exchange Act and deemed to be incorporated by reference
into the Prospectus), and (A) as of the date of such certificate, such
documents are true and correct in all material respects and do not omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (B) since the Effective
Date, no event has occurred as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein not untrue or misleading in any material respect and there has
been no document required to be filed under the Exchange Act or the
Exchange Act Rules and Regulations, which upon such filing would be
deemed to be incorporated by reference into the Prospectus, that has not
been so filed on a timely basis;
2. Each of the representations and warranties of the Company
contained in this Agreement were, when originally made, and are, at the
time such certificate is delivered, true and correct in all material
respects; and
3. Each of the covenants required herein to be performed by
the Company on or prior to the date of such certificate has been duly,
timely and fully performed and each condition herein required to be
complied with by the Company on or prior to the delivery of such
certificate has been duly, timely and fully complied with.
(j) On or prior to the Closing Date, the Representatives
shall have received the executed agreements referred to in Section 4(m).
14
(k) The Shares shall be qualified for sale in such states as
the Representatives may reasonably request, each such qualification shall be in
effect and not subject to any stop order or other proceeding on the Closing Date
and the Option Closing Date.
(l) The Common Stock shall continue to be traded on the
Nasdaq National Market and the Shares shall have been duly authorized for
listing thereon, subject only to the issuance of the Shares.
(m) The Company shall have furnished to the Representatives
such certificates, in addition to those specifically mentioned herein, as the
Representatives may have reasonably requested as to the transactions and matters
contemplated hereby.
6. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each (i)
Underwriter and (ii) the directors, officers, employees, counsel and agents of
each Underwriter and each person, if any, who controls each Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act (any of
the persons referred to in clause (i) or (ii) may hereinafter be referred to as
an Indemnified Person or collectively as Indemnified Persons) from and against
any and all losses, claims, liabilities, expenses and damages (including any and
all investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
between any of the Indemnified Persons and any indemnifying parties or between
any indemnified party and any third party, or otherwise, or any claim asserted),
to which they, or any of them, may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on any untrue statement or alleged untrue statement of
a material fact contained in (i) any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus or in any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus, (ii) any
application, other document or written communication, executed by the Company or
based upon written information supplied by the Company, filed in any
jurisdiction in order to qualify the Shares under the securities laws of such
jurisdiction, or (iii) any document, executed by the Company or based on written
information supplied by the Company, filed with any securities exchange, or the
omission or alleged omission to state in such documents enumerated in the
immediately preceding clauses (i)-(iii) of a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made; PROVIDED, HOWEVER, that: (x) the
Company shall not be liable to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Shares in the public offering to
any person by an Underwriter and is based on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company by
the Representatives on behalf of any Underwriter expressly for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus; and (y)
the Company shall not be liable to any Underwriter (or any director, officer,
employee, counsel or agent or any person who controls such Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) with
respect to any loss, claim, liability, expense or damage arising out of or based
on any untrue statement or alleged untrue statement of a material fact or any
omission
15
or alleged omission to state a material fact in any preliminary prospectus
which is corrected in the Prospectus, if the person asserting any such loss,
claim, liability, expense or damage purchased Shares from such Underwriter
but was not sent or given a copy of the Prospectus at or prior to the written
confirmation of the sale of such Shares to such person. If multiple claims
are brought against any Indemnified Person in an arbitration proceeding, and
indemnification is permitted under applicable law and is provided for under
this Agreement with respect to at least one such claim, the Company agrees
that any arbitration award shall be conclusively deemed to be based on claims
as to which indemnification is permitted and provided for, except to the
extent the arbitration award expressly states that the award, or any portion
thereof, is based solely on a claim as to which indemnification is not
available. This indemnity agreement will be in addition to any liability that
the Company might otherwise have.
(b) Each Underwriter shall indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each director of the
Company and each officer of the Company who signs the Registration Statement to
the same extent as the foregoing indemnity from the Company to each Underwriter,
but only insofar as losses, claims, liabilities, expenses or damages arise out
of or are based on any untrue statement or omission or alleged untrue statement
or omission made in reliance on and in conformity with information relating to
any Underwriter furnished in writing to the Company by the Representatives on
behalf of such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus. This indemnity will be in addition to
any liability that each Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 shall, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 6, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
shall not relieve it from any liability that it may have to any indemnified
party under the foregoing provisions of this Section 6 unless, and only to the
extent that, such omission results in the forfeiture of substantive rights or
defenses by the indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled at its own expense (except as provided
below) to participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the action, with
counsel reasonably satisfactory to the indemnified party, and after notice from
the indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based on written advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (3) a conflict or
16
potential conflict exists (based on written advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party shall not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not
in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel shall be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings, be liable for the reasonable fees,
disbursements and other charges of more than one firm (in addition to local
counsel) for all such indemnified party or parties. All such fees, disbursements
and other charges shall be reimbursed by the indemnifying party promptly as they
are incurred. An indemnifying party shall not be liable for any settlement of
any action or claim effected without its written consent (which consent will not
be unreasonably withheld or delayed). No indemnifying party shall, without the
prior written consent of each indemnified party that is or could reasonably be
expected to become a party thereto, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 6, unless such settlement,
compromise or consent includes an unconditional release of each such indemnified
party from all liability arising or that may arise out of such claim, action or
proceeding.
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Underwriters, the
Company and the Underwriters shall contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company
and any one or more of the Underwriters may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
and the Underwriters, respectively. The relative benefits received by the
Company and the Underwriters, respectively, shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. If, but only if, the allocation provided by
the foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company and the Underwriters, respectively, with respect
to the statements or omissions which resulted in such loss, claim, liability,
expense or damage or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Representatives on
behalf of the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
17
would not be just and equitable if contributions pursuant to this Section 6(d)
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, liability, expense or damage, or action in respect thereof,
referred to above in this Section 6(d) shall be deemed to include, for purpose
of this Section 6(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(d), no Underwriter
shall be required to contribute any amount in excess of the underwriting
discounts and commissions received by it, and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 6(d) are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section 6(d), any
person who controls a party to this Agreement within the meaning of the Act will
have the same rights to contribution as that party, and each officer of the
Company who signed the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made under this Section 6(d), will notify any such party or parties from
whom contribution may be sought, but the omission so to notify will not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 6(d). No party will be liable
for contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of the Underwriters, (ii)
acceptance of any of the Shares and payment therefor or (iii) any termination of
this Agreement.
7. TERMINATION. The obligations of the several Underwriters under
this Agreement may be terminated at any time prior to the Closing Date (or, with
respect to the Option Shares, on or prior to the Option Closing Date), by notice
to the Company from the Representatives, without liability on the part of any
Underwriter to the Company if, prior to delivery and payment for the Shares (or
the Option Shares, as the case may be), in the sole judgment of the
Representatives, (i) trading in any of the equity securities of the Company
shall have been suspended by the Commission, by Nasdaq or by an exchange that
lists the Shares, (ii) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum or maximum prices shall
have been generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by such exchange or by
order of the Commission or any court or other governmental authority, (iii) a
general banking moratorium shall have been declared by either Federal or New
York State authorities, (iv) any material adverse change in the financial or
securities markets in the United States or in political, financial or economic
conditions in the United States or any outbreak or material escalation of
hostilities or declaration by the United
18
States of a national emergency or war or other calamity or crisis shall have
occurred, the effect of any of which is such as to make it impracticable or
inadvisable to market the Shares or the Option Shares on the terms and in the
manner contemplated by the Prospectus, (v) if the Company or any of its
Subsidiaries shall have sustained a loss material or substantial to the Company
or any of its Subsidiaries by reason of flood, fire, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act which, whether or
not such loss shall have been insured, will make it inadvisable to proceed with
the offering and sale of the Shares or the Option Shares, or (vi) if there shall
have been a material adverse change in the condition (financial or otherwise),
earnings, business, prospects, shareholders' equity, operations, properties,
business or results of operations of the Company or the Company and its
Subsidiaries taken as a whole, as would make it inadvisable to proceed with the
offering and sale of the Shares or the Option Shares.
8. SUBSTITUTION OF UNDERWRITERS. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Firm Shares which it or
they have agreed to purchase hereunder, and the aggregate number of Firm Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of Firm Shares to
be purchased on such date, the other Underwriters shall be obligated, severally,
to purchase the Firm Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase, in the proportions which the number of
Firm Shares which they have respectively agreed to purchase pursuant to Section
1 bears to the aggregate number of Firm Shares which all such non-defaulting
Underwriters have so agreed to purchase, or in such other proportions as the
Representatives may specify; provided that in no event shall the maximum number
of Firm Shares which any Underwriter has become obligated to purchase pursuant
to Section 1 be increased pursuant to this Section 8 by more than one-ninth of
the number of Firm Shares agreed to be purchased by such Underwriter without the
prior written consent of such Underwriter. If any Underwriter or Underwriters
shall fail or refuse to purchase any Firm Shares and the aggregate number of
Firm Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase exceeds one-tenth of the aggregate number of the Firm
Shares to be purchased on such date, and arrangements satisfactory to the
Company and the Representatives for the purchase of such Firm Shares are not
made within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company for the
purchase or sale of any Shares under this Agreement. In any such case, either
the Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken pursuant to
this Section 8 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
9. MISCELLANEOUS.
(a) Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at its principal office, 000 Xxxxxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, attention: Xxxxxxx X. Xxxxxxx III, or (b)
if to the Underwriters, to GKM at the offices of GKM, 000 Xxxxx Xxxxxx,
00
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx; or in any case to such
other address as the party to be notified may have requested in writing. Any
such notice shall be effective only upon receipt. Any notice under Section 7 or
8 may be made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
(b) This Agreement has been and is made solely for the
benefit of the several Underwriters and the Company and of the controlling
persons, directors and officers referred to in Section 6, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as used
in this Agreement shall not include a purchaser, as such purchaser, of Shares
from any of the several Underwriters.
(c) All representations, warranties and agreements of the
Company contained herein or in certificates or other instruments delivered
pursuant hereto, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or any of their
controlling persons and shall survive delivery of and payment for the Shares
hereunder.
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. Each party hereto hereby
irrevocably submits for purposes of any action arising from this Agreement
brought by any other party hereto to the jurisdiction of the courts of New York
State located in the Borough of Manhattan and the U.S. District Court for the
Southern District of New York. This Agreement may be signed in two or more
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
(e) In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(f) The Company and the Underwriters each hereby irrevocably
waive any right they may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
(g) This Agreement embodies the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof. This Agreement may not be
amended or otherwise modified or any provision hereof waived except by an
instrument in writing signed by GKM and the Company.
20
Please confirm that the foregoing correctly sets forth the agreement among the
Company and the several Underwriters.
Very truly yours,
THE 3DO COMPANY
By:
----------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Confirmed as of the date first
above mentioned:
XXXXXX XXXXXX XXXXXXXX & CO., INC.
WEDBUSH XXXXXX SECURITIES
Acting on their own behalf and as the
Representatives of the other several Underwriters
named in Schedule I hereof
By: XXXXXX XXXXXX XXXXXXXX & CO., INC.
By:
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Managing Director
WEDBUSH XXXXXX SECURITIES INC.
By:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
21
SCHEDULE I
UNDERWRITERS
Number of Firm
Name of Shares to be
Underwriter Purchased
---------------- ---------------------
Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc. ..................
Wedbush Xxxxxx Securities Inc. ......................
---------
Total [ ]
---------
---------
22
EXHIBIT A
THE 3DO COMPANY
--------------------------------------------------------------------------------
PRICE DETERMINATION AGREEMENT
[___________, 1999]
XXXXXX XXXXXX XXXXXXXX & CO., INC.
WEDBUSH XXXXXX SECURITIES INC.
As Representatives of the
several Underwriters
c/o Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated
[________________, 1999] (the "Underwriting Agreement"), among The 3DO Company,
a Delaware corporation (the "Company") and the several Underwriters named in
Schedule I thereto or hereto (the "Underwriters"), for whom you are acting as
Representatives (the "Representatives"). The Underwriting Agreement provides,
subject to the terms and conditions set forth therein, for the purchase by the
Underwriters from the Company an aggregate of [______________] shares (the "Firm
Shares") of the Company's common stock, par value $.01 per share (the "Common
Stock"). This Agreement is the Price Determination Agreement referred to in the
Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree with the Representatives as follows:
1. The public offering price per share at which the Firm Shares shall
initially be offered shall be $_______.
2. The purchase price per share for the Firm Shares to be paid to the
Company by the several Underwriters shall be $_______, representing an amount
equal to the public offering price set forth above, less $______ per share
representing the underwriting discounts and commissions.
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule I
is a completed list of the several Underwriters, which shall be a part of this
Agreement and the Underwriting Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY
23
WITHIN SUCH STATE. Each party hereto hereby irrevocably submits for purposes of
any action arising from this Agreement brought by any other party hereto to the
jurisdiction of the courts of New York State located in the Borough of Manhattan
and the U.S. District Court for the Southern District of New York.
If the foregoing is in accordance with your understanding of the
agreement among the Company and the Underwriters, please sign and return to the
Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement among the Company and the Underwriters in accordance with its terms
and the terms of the Underwriting Agreement.
Very truly yours,
THE 3DO COMPANY
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
Confirmed as of the date first
above mentioned:
XXXXXX XXXXXX XXXXXXXX & CO., INC.
WEDBUSH XXXXXX SECURITIES
Acting on their own behalf and as the
Representatives of the other several Underwriters
named in Schedule I hereof
By: XXXXXX XXXXXX XXXXXXXX & CO., INC.
By:
----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Managing Director
WEDBUSH XXXXXX SECURITIES INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
24
SCHEDULE I
UNDERWRITERS
Number of Firm Shares
Name of Underwriter to Be Purchased
---------------------- --------------------------
Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc.................
Wedbush Xxxxxx Securities Inc.....................
---------
Total [ ]
---------
---------
25
