EXHIBIT 1.1
ARTISAN COMPONENTS, INC.
_________ SHARES
PLUS AN OPTION TO PURCHASE UP TO
______ ADDITIONAL SHARES TO COVER OVER-ALLOTMENTS
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
April __, 1998
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXXXX & XXXXX L.L.C.
XXXX XXXXXXXX XXXXXXX
(A division of Xxxx Xxxxxxxx Incorporated)
As Representatives of the several Underwriters
c/o Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Artisan Components, Inc., a Delaware corporation (the "Company"), and
the persons named in Schedule 2 hereto (the "Selling Stockholders") hereby
confirm their agreement with the several underwriters named in Schedule 1 hereto
(the "Underwriters"), for whom you have been duly authorized to act as
representatives (the firms acting in such capacities, the "Representatives"), as
set forth below. If you are the only Underwriters, all references herein to the
Representatives shall be deemed to be references to the Underwriters.
Section 1. Underwriting. Subject to the terms and conditions contained herein:
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(a) The Company proposes to issue and sell ______ shares of common
stock, par value $.001 per share (the "Common Stock"), of the Company, and the
Selling Stockholders propose to sell ________ shares of Common Stock (said
shares to be issued and sold by the Company and shares to be sold by the
Selling Stockholders, the "Firm Shares") to the several Underwriters. The
Company also proposes to issue and sell not more than ______ additional
shares of Common Stock (the "Option Shares" and, together with the Firm
Shares, the "Shares") to the several Underwriters if requested by the
Representatives as provided in Section 2(b) hereof.
(b) Upon your authorization of the release of the Firm Shares, the
Underwriters propose to make a public offering (the "Offering") of the Firm
Shares upon the terms set forth in the Prospectus (as defined below) as soon
after the Registration Statement (as defined below) and this Agreement have
become effective as in the Representatives' sole judgment is advisable. As used
in this Agreement, the term "Original Registration Statement" means the
registration statement (File No. 333-_____) initially filed with the Securities
and Exchange Commission (the "Commission") relating to the Shares, as amended at
the time when it was or is declared effective, including all financial schedules
and exhibits thereto and including any information omitted therefrom pursuant to
Rule 430A under the Securities Act of 1933, as amended (the "Securities Act"),
and included in the Prospectus; the term "Rule 462(b) Registration Statement"
means any registration statement filed with the Commission pursuant to Rule
462(b) under the Securities Act (including the Registration Statement and any
Preliminary Prospectus (as defined below) or Prospectus incorporated therein at
the time such Registration Statement becomes effective); the term "Registration
Statement" includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with the Original Registration Statement or any
amendment thereto (including the prospectus subject to completion, if any,
included in the Original Registration Statement or any amendment thereto at the
time it was or is declared effective); the term "Prospectus" means:
(i) if the Company relies on Rule 434 under the Securities Act,
the Term Sheet (as defined below) relating to the Shares that is
first filed pursuant to Rule 424(b)(7) under the Securities Act,
together with the Preliminary Prospectus identified therein that
such Term Sheet supplements;
(ii) if the Company does not rely on Rule 434 under the
Securities Act, the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Securities Act;
(iii) if the Company does not rely on Rule 434 under the
Securities Act and if no prospectus is required to be filed
pursuant to Rule 424(b) under the Securities Act, the prospectus
included in the Registration Statement; or
(iv) for purposes of the representations and warranties contained
in Section 5 hereof, if the prospectus is not in existence, the
most recent Preliminary Prospectus;
and the term "Term Sheet" means any term sheet that satisfies the
requirements of Rule 434 under the Securities Act. Any reference herein to
the "date" of a Prospectus that includes a Term Sheet shall mean the date
of such Term Sheet.
Section 2. Purchase and Closing.
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(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell, and the Selling Stockholders
propose to sell, to each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company and the Selling
Stockholders, at a purchase price of $____ per Share (the "Purchase Price"), the
respective number
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of Firm Shares set forth opposite the name of such Underwriter in Schedule 1
hereto. Firm Shares shall be registered by BankBoston, N.A. in the name of the
nominee of the Depository Trust Company ("DTC"), Cede & Co. ("Cede & Co."), and
credited to the accounts of such of its participants as the Representatives
shall request, upon notice to the Company and the Selling Stockholders at least
48 hours prior to the First Closing Date (as defined below), with any transfer
taxes payable in connection with the transfer of the Firm Shares to the
Underwriters duly paid, against payment by or on behalf of the Underwriters to
the account of the Company and the Selling Stockholders of the aggregate
Purchase Price therefor by wire transfer in immediately available funds.
Delivery or registry of and payment for the Firm Shares shall be made at the
offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000 at 9:30 A.M., New York City time, on the fourth full
business day following the date of this Agreement, or at such other place, time
or date as the Representatives, the Company and the Selling Stockholders may
agree upon. Such time and date of delivery against payment are herein referred
to as the "First Closing Date", and the implementation of all the actions
described in this Section 2(a) is herein referred to as the "First Closing".
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Shares as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Shares. The purchase price to
be paid for any Option Shares shall be the same as the Purchase Price for the
Firm Shares set forth above in paragraph (a) of this Section 2. The option
granted hereby may be exercised as to all or any part of the Option Shares
from time to time within thirty days after the date of the Prospectus (or, if
such 30th day shall be a Saturday or Sunday or a holiday, on the next business
day thereafter when the New York Stock Exchange and the Nasdaq Stock Market's
National Market (the "Nasdaq National Market") are open for trading). The
Underwriters shall not be under any obligation to purchase any of the Option
Shares prior to the exercise of such option. The Representatives may from time
to time exercise the option granted hereby by giving notice in writing or by
telephone (confirmed in writing) to the Company setting forth the aggregate
number of Option Shares as to which the several Underwriters are then
exercising the option and the date and time for delivery or registry of and
payment for such Option Shares. Any such date of delivery or registry shall be
determined by the Representatives but shall not be earlier than two business
days or later than five business days after such exercise of the option and,
in any event, shall not be earlier than the First Closing Date. The time and
date set forth in such notice, or such other time or date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 2(a) hereof, is herein called an "Option Closing
Date" with respect to such Option Shares, and the implementation of all the
actions described in this Section 2(b) is herein referred to as the "Option
Closing". As used in this Agreement, the term "Closing Date" means either the
First Closing Date or any Option Closing Date, as applicable, and the term
"Closing" means either the First Closing or any Option Closing, as applicable.
If the option is exercised as to all or any portion of the Option Shares, then
either one or more certificates in definitive form for such Option Shares
shall be delivered or, if such Option Shares are to be held through DTC, such
Option Shares shall be registered and credited, on the related Option Closing
Date in the same manner, and upon the same terms and conditions, set forth in
paragraph (a) of this Section 2, except that reference therein to the Firm
Shares and the First Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Shares and Option Closing Date,
respectively. Upon
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exercise of the option as provided herein, the Company shall become obligated
to sell to each of the several Underwriters, and, on the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, each of the Underwriters
(severally and not jointly) shall become obligated to purchase from the
Company, the same percentage of the total number of the Option Shares as to
which the several Underwriters are then exercising the option as such
Underwriter is obligated to purchase of the aggregate number of Firm Shares,
as adjusted by the Representatives in such manner as they deem advisable to
avoid fractional shares.
(c) The Company and the Selling Stockholders hereby acknowledge that
the payment of monies pursuant to Section 2(a) hereof (a "Payment") by or on
behalf of the Underwriters of the aggregate Purchase Price for any Shares does
not constitute closing of a purchase and sale of the Shares. Only execution and
delivery, by facsimile or otherwise, of a receipt for Shares by the Underwriters
indicates completion of the closing of a purchase of the Shares from the Company
and the Selling Stockholders. Furthermore, in the event that the Underwriters
make a Payment to the Company and the Selling Stockholders prior to the
completion of the closing of a purchase of Shares, the Company and the Selling
Stockholders hereby acknowledge that until the Underwriters execute and deliver
such receipt for the Shares, the Company and the Selling Stockholders will not
be entitled to the Payment and shall return the Payment to the Underwriters as
soon as practicable (by wire transfer of same-day funds) upon demand. In the
event that the closing of a purchase of Shares is not completed and the Payment
is not returned by the Company and the Selling Stockholders to the Underwriters
on the same day the Payment was received by the Company and the Selling
Stockholders, the Company and the Selling Stockholders agree to pay to the
Underwriters in respect of each day the Payment is not returned by them, in
same-day funds, interest on the amount of such Payment in an amount representing
the Underwriters' cost of financing as reasonably determined by the
Representatives, pro rata in proportion to the percentage of such Payment
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received by each.
(d) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make Payment on behalf
of any Underwriter or Underwriters for any of the Shares to be purchased by such
Underwriter or Underwriters. No such Payment shall relieve such Underwriter or
Underwriters from any of its or their obligations hereunder.
Section 3. Covenants.
---------
(a) The Company covenants and agrees with the several Underwriters
that:
(i) The Company will:
(x) use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as
promptly as possible. If
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required, the Company will file the Prospectus or any Term
Sheet that constitutes a part thereof and any amendment or
supplement thereto with the Commission in the manner and
within the time period required by Rules 434 and 424(b)
under the Securities Act. During any time when a prospectus
relating to the Shares is required to be delivered under the
Securities Act, the Company (I) will comply with all
requirements imposed upon it by the Securities Act and the
rules and regulations of the Commission thereunder to the
extent necessary to permit the continuance of sales of or
dealings in the Shares in accordance with the provisions
hereof and of the Prospectus, as then amended or
supplemented, and (II) will not file with the Commission the
Prospectus, Term Sheet, any amendment or supplement to such
Prospectus or Term Sheet, any amendment to the Registration
Statement (including the amendment referred to in the second
sentence of Section 5(a)(i) hereof) or any Rule 462(b)
Registration Statement unless the Representatives previously
have been advised of, and furnished with a copy within a
reasonable period of time prior to, the proposed filing and
the Representatives shall have given their consent to such
filing. The Company will prepare and file with the
Commission, in accordance with the rules and regulations of
the Commission, promptly upon request by the Representatives
or counsel for the Underwriters, any amendments to the
Registration Statement or amendments or supplements to the
Prospectus that may be necessary or advisable in connection
with the distribution of the Shares by the several
Underwriters. The Company will advise the Representatives,
promptly after receiving notice thereof, of the time when
the Registration Statement or any amendment thereto has been
filed or declared effective or the Prospectus or Term Sheet
or any amendment or supplement thereto has been filed and
will provide evidence satisfactory to the Representatives of
each such filing or effectiveness.
(y) without charge, provide (I) to each of the
Representatives and to counsel for the Underwriters, an
executed and a conformed copy of the Original Registration
Statement and each amendment thereto or any Rule 462(b)
Registration Statement (in each case including exhibits
thereto), (II) to each other Underwriter, a conformed copy
of the Original Registration Statement and each amendment
thereto or any Rule 462(b) Registration Statement (in each
case without exhibits thereto), and (III) so long as a
prospectus relating to the Shares is required to be
delivered under the Securities Act, as many copies of each
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto as the Representatives may reasonably
request. Without limiting the application of clause (III)
of the preceding sentence, the Company, not later than (A)
9:00 A.M., New York City time, on the second business day
following the date of determination
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of the public offering price, if such determination occurred
at or prior to 12:00 noon, New York City time, on such date
or (B) 6:00 P.M., New York City time, on the second business
day following the date of determination of the public
offering price, if such determination occurred after 12:00
noon, New York City time, on such date, will deliver to the
Underwriters, without charge, as many copies of the
Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of
confirming orders that are expected to settle on the First
Closing Date.
(z) advise the Representatives, promptly after receiving
notice or obtaining knowledge thereof, of (I) the issuance
by the Commission of any stop order suspending the
effectiveness of the Original Registration Statement or any
amendment thereto or any Rule 462(b) Registration Statement
or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, (II) the suspension of the qualification
of the Shares for offering or sale in any jurisdiction,
(III) the institution, threatening or contemplation of any
proceeding for any purpose identified in the preceding
clause (I) or (II), or (IV) any request made by the
Commission for amending the Original Registration Statement
or any Rule 462(b) Registration Statement, for amending or
supplementing the Prospectus or for additional information.
The Company will use all reasonable efforts to prevent the
issuance of any such stop order and, if any such stop order
is issued, to obtain the withdrawal thereof as promptly as
possible.
(ii) The Company will arrange for the qualification of the Shares
for offering and sale in each jurisdiction as the Representatives
shall reasonably designate including, but not limited to,
pursuant to applicable state securities ("Blue Sky") laws of
certain states of the United States of America or other U.S.
jurisdictions, and the Company shall maintain such qualifications
in effect for so long as may be necessary in order to complete
the placement of the Shares; provided, however, that the Company
shall not be obliged to file any general consent to service of
process or to qualify as a foreign corporation or as a securities
dealer in any jurisdiction or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(iii) If, at any time prior to the final date when a prospectus
relating to the Shares is required to be delivered under the
Securities Act, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include 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 under which they were made, not
misleading, or if for any other reason it shall be necessary at
any time to amend the Registration
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Statement or amend or supplement the Prospectus to comply with
the Securities Act or the rules or regulations of the Commission
thereunder or applicable law, the Company will promptly notify
the Representatives thereof and will promptly, at its own
expense, but subject to the second sentence of Section 3(a)(i)(x)
hereof: (x) prepare and file with the Commission an amendment to
the Registration Statement or amendment or supplement to the
Prospectus which will correct such statement or omission or
effect such compliance; and (y) supply any amended Registration
Statement or amended or supplemented Prospectus to the
Underwriters in such quantities as the Underwriters may
reasonably request.
(iv) The Company will make generally available to its
securityholders and to the Representatives as soon as practicable
an earnings statement that satisfies the provisions of Section
11(a) of the Securities Act, including Rule 158 thereunder.
(v) The Company will apply the net proceeds from the sale of the
Shares being sold by it in the manner set forth under "Use of
Proceeds" in the Prospectus.
(vi) The Company will not, and will not allow any subsidiary to,
publicly announce any intention to, and will not itself, and will
not allow any subsidiary to, without the prior written consent of
the Representatives, on behalf of the Underwriters, (x) offer,
pledge, sell, offer to sell, contract to sell, sell any option or
contract to purchase, purchase any option to sell, grant any
option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into, or exercisable or exchangeable
for, Common Stock, or (y) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic
consequences of ownership of the shares of Common Stock or
securities convertible into, or exercisable or exchangeable for,
shares of Common Stock (whether any such transaction described in
clause (x) or (y) above is to be settled by delivery of shares of
Common Stock or such other securities, in cash or otherwise), for
a period beginning from the date hereof and continuing to and
including the date 180 days after the date hereof, except
pursuant to this Agreement and other than with respect to shares
of Common Stock (or any securities convertible into, exercisable
for or exchangeable for shares of Common Stock) issued or
issuable pursuant to any employee benefit plans, qualified stock
option plans or other employee compensation plans which are
disclosed in the Prospectus.
(vii) Neither the Company nor any of its affiliates, nor any
person acting on behalf of any of them will, directly or
indirectly, (x) take any action designed to cause or to result
in, or that has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of
the
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Shares or (y) (I) sell, bid for, purchase, or pay anyone any
compensation for soliciting purchases of, the Shares or (II) pay
or agree to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(viii) The Company will obtain the agreements described in
Section 7(h) hereof prior to the First Closing Date.
(ix) If at any time during the period prior to any Closing Date,
any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in the Representatives'
sole judgment the market price of the Shares has been or is
likely to be materially affected (regardless of whether such
rumor, publication or event necessitates a supplement to or
amendment of the Prospectus), the Company will, after notice from
the Representatives advising the Company to the effect set forth
above, forthwith prepare, consult with the Representatives
concerning the substance of, and disseminate a press release or
other public statement reasonably satisfactory to the
Representatives, responding to or commenting on such rumor,
publication or event.
(x) If the Company elects to rely on Rule 462(b), the Company
shall both file the Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable
fees in accordance with Rule 111 promulgated under the Securities
Act by the earlier of (x) 10:00 P.M. New York City time on the
date of this Agreement and (y) the time confirmations are sent or
given, as specified by Rule 462(b)(2) under the Securities Act.
(xi) The Company will cause the Shares to be duly included for
quotation on the Nasdaq National Market prior to the First
Closing Date. The Company will use all reasonable efforts to
ensure that the Shares remain included for quotation on the
Nasdaq National Market following the First Closing Date.
(b) Each Selling Stockholder agrees that:
(i) It will not, and no person acting on behalf of such Selling
Stockholder will, directly or indirectly, (x) take any action
designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or (y) (I)
sell, bid for, purchase, or pay anyone any compensation for
soliciting purchases of, the Shares or (II) pay or agree to pay
to any person any compensation for soliciting another to purchase
any other securities of the Company (except for the sale of
Shares by the Selling Stockholders under this Agreement).
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(ii) It will not, and will not allow any subsidiary to, publicly
announce any intention to, and will not itself, and will not
allow any subsidiary to, without the prior written consent of the
Representatives on behalf of the Underwriters, (x) offer, pledge,
sell, offer to sell, contract to sell, sell any option or
contract to purchase, purchase any option to sell, grant any
option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any of the shares of Common
Stock or any securities convertible into, or exercisable or
exchangeable for, Common Stock, or (y) enter into any swap or
other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the shares of Common Stock
or any securities convertible into, or exercisable or
exchangeable for, shares of Common Stock (whether any such
transaction described in clause (x) or (y) above is to be settled
by delivery of shares of Common Stock or such other securities,
in cash or otherwise), in each case, beneficially owned (within
the meaning of Rule 13d-3 under the Exchange Act) or otherwise
controlled by such person on the date hereof or hereafter
acquired, for a period beginning from the date hereof and
continuing to and including the date 180 days after the date
hereof in the case of executive officers and remaining founders
("Principal Selling Stockholders") and 90 days after the date
hereof in the case of all other Selling Stockholders; provided,
however, that such Selling Stockholder may, without the prior
written consent of the Representatives on behalf of the
Underwriters, transfer shares of Common Stock or such other
securities to members of such Selling Stockholder's immediate
family or to trusts for the benefit of members of such Selling
Stockholder's immediate family or in connection with bona fide
gifts, provided that any transferee agrees to the transfer
restrictions described above.
Section 4. Expenses.
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(a) The Company shall bear and pay all costs and expenses incurred
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 9 hereof, including: (i) the fees and expenses of
its counsel, accountants and any other experts or advisors retained by the
Company; (ii) the costs of delivering and distributing the Powers of Attorney
(as defined below) and the Custody Agreements (as defined below) and the fees
and expenses of the Custodian (as defined below) (and any other Attorney-in-Fact
(as defined below)); (iii) fees and expenses incurred in connection with the
registration of the Shares under the Securities Act and the preparation and
filing of the Registration Statement, the Prospectus and all amendments and
supplements thereto; (iv) the printing and distribution of the Prospectus and
any Preliminary Prospectus and the printing and production of all other
documents connected with the Offering (including this Agreement and any other
related agreements); (v) expenses related to the qualification of the Shares
under the state securities or Blue Sky laws and the securities laws of Canada
and Japan, including filing fees and the fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any Blue Sky memoranda; (vi) the filing fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities Dealers,
Inc., including the fees and disbursements of counsel for
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the Underwriters in connection therewith; (vii) all expenses arising from the
quoting of the Shares on the Nasdaq National Market; (viii) all arrangements
relating to the preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Shares, including transfer agent's and registrar's
fees; (ix) the costs and expenses of travel, lodging and meals of the Company's
employees in connection with the "roadshow" and any other meetings with
prospective investors in the Shares (other than as shall have been specifically
approved by the Representatives to be paid for by the Underwriters) and one-half
of the cost of any aircraft chartered in connection with the roadshow; and (x)
the costs and expenses of advertising relating to the Offering (other than as
shall have been specifically approved by the Representatives to be paid for by
the Underwriters). Subject to the provisions of Section 10, the Underwriters
agree to pay all costs and expenses incident to the performance of their
obligations under this Agreement not payable by the Company pursuant to the
preceding sentence, including, without limitation, the fees and disbursements of
counsel to the Underwriters (other than as set forth in clauses (v) and (vi)
above).
(b) The Selling Stockholders shall bear and pay all costs and expenses
incurred incident to the performance of their respective obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 9 hereof, including: (i) any
stamp duties, capital duties and stock transfer taxes, if any, payable upon the
sale of the Shares of such Selling Stockholders to the Underwriters and (ii) the
fees and disbursements of their respective counsel, accountants and other
advisors.
Section 5. Representations and Warranties.
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(a) As a condition of the obligation of the Underwriters to underwrite
and purchase the Shares, the Company and, to the best of their knowledge after
careful review of this Agreement, the Registration Statement and the Prospectus,
the Principal Selling Stockholders, Xxxxxx X. Xxxxx and the Selling Stockholders
affiliated with U.S. Venture Partners represent and warrant to, and agree with,
each of the several Underwriters as follows:
Registration Statement and Prospectus
(i) The Original Registration Statement, including the
Preliminary Prospectus, has been filed by the Company with the
Commission under the Securities Act, and one or more amendments to
such Registration Statement may have been so filed. After the
execution of this Agreement, the Company will file with the Commission
either (x) if such Registration Statement, as it may have been
amended, has been declared by the Commission to be effective under the
Securities Act, either (I) if the Company relies on Rule 434 under the
Securities Act, a Term Sheet relating to the Shares that shall
identify the Preliminary Prospectus that it supplements containing
such information as is required or permitted by Rules 434, 430A and
424(b) under the Securities Act or (II) if the Company does not rely
on Rule 434 under the Securities Act, a prospectus in the form most
recently included in an amendment to such Registration Statement (or,
if no such amendment shall have been filed, in such Registration
Statement), with such changes or insertions as are required by Rule
430A under the Securities Act or permitted by Rule 424(b) under the
Securities Act, and in the case of either clause (I) or (II) of this
sentence, as have
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been provided to and approved by the Representatives prior to the
execution of this Agreement, or (y) if such Registration Statement, as
it may have been amended, has not been declared by the Commission to
be effective under the Securities Act, an amendment to such
Registration Statement, including a form of prospectus, a copy of
which amendment has been furnished to and approved by the
Representatives prior to the execution of this Agreement. The Company
may also file a Rule 462(b) Registration Statement with the Commission
for the purpose of registering certain additional Shares, which
registration shall be effective upon filing with the Commission.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any
Preliminary Prospectus was filed with the Commission, it (x) contained
all statements required to be stated therein in accordance with, and
complied in all material respects with the requirements of, the
Securities Act and the rules and regulations of the Commission
thereunder and (y) did not include 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 under which they
were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective, it (I) contained or
will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (II) did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. When the Prospectus or any Term
Sheet that is a part thereof or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or,
if the Prospectus or such amendment or supplement is not required to
be so filed, when the Registration Statement or the amendment thereto
containing the Prospectus or such amendment or supplement to the
Prospectus was or is declared effective) and on the Closing Date, the
Prospectus, as amended or supplemented at any such time, (A) contained
or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (B) did not or will not
include 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 under which they were made, not
misleading. The foregoing provisions of this paragraph (ii) do not
apply to statements or omissions made in any Preliminary Prospectus,
the Registration Statement or any amendment thereto or the Prospectus
or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein.
(iii) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement is not effective, (x) the Company
will file a Rule 462(b) Registration Statement in compliance with, and
that is effective upon filing
11
pursuant to, Rule 462(b) and (y) the Company has given irrevocable
instructions for transmission of the applicable filing fee in
connection with the filing of the Rule 462(b) Registration Statement,
in compliance with Rule 111 under the Securities Act, or the
Commission has received payment of such filing fee.
(iv) If the Company has elected to rely on Rule 434 under the
Securities Act, the Prospectus is not "materially different", as such
term is used in Rule 434, from the prospectus included in the
Registration Statement at the time of its effectiveness or an
effective post-effective amendment thereto (including such information
that is permitted to be omitted pursuant to Rule 430A under the
Securities Act).
(v) The Company has not distributed and, prior to the later of
(x) any Closing Date and (y) the completion of the distribution of the
Shares, will not distribute any offering material in connection with
the Offering other than the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto.
(vi) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (x) the
Company and its subsidiary, taken as a whole, have not incurred any
material liability or obligation, direct or contingent, nor entered
into any material transaction not in the ordinary course of business;
(y) the Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (z) there has not
been any material change in the capital stock, short-term or long-term
debt of the Company and its subsidiary, taken as a whole, except in
each case as described in or contemplated by the Prospectus.
The Shares
(vii) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable, have been issued
in compliance with all applicable federal and state securities laws
and were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase such securities.
The Shares have been duly authorized by all necessary corporate action
of the Company and, after payment therefor in accordance herewith,
will be validly issued, fully paid and nonassessable at the Closing
Date. No holders of outstanding shares of capital stock of the
Company are entitled as such to any preemptive or other rights to
subscribe for any of the Shares, and no holder of securities of the
Company has any right which has not been fully exercised or waived to
require the Company to register the offer or sale of any securities
owned by such holder under the Securities Act in the Offering
contemplated by this Agreement.
(viii) Except as disclosed in the Prospectus, there are no
outstanding (x) securities or obligations of the Company or its
subsidiary convertible into or
12
exchangeable for any capital stock of the Company or its subsidiary,
(y) warrants, rights or options to subscribe for or purchase from the
Company or its subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (z)
obligations of the Company or its subsidiary to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(ix) Except for the shares of its subsidiary owned by the
Company, neither the Company nor its subsidiary owns any shares of
stock or any other equity securities of any corporation or has any
equity interest in any firm, partnership, association or other entity,
except as described in or contemplated by the Registration Statement.
Listing
(x) All of the Shares have been duly authorized and accepted for
quotation on the Nasdaq National Market, subject to official notice of
issuance.
Market manipulation
(xi) Neither the Company nor any of its affiliates, nor any
person acting on behalf of any of them has, directly or indirectly,
(x) taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares, or (y) since
the filing of the Original Registration Statement (I) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases
of, the Shares or (II) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities
of the Company.
Corporate power and authority
(xii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the law of its
jurisdiction of incorporation with full power and authority to own,
lease and operate its properties and assets and conduct its business
as described in the Prospectus, is duly qualified to transact business
and is in good standing in each jurisdiction in which its ownership,
leasing or operation of its properties or assets or the conduct of its
business requires such qualification, except where the failure to be
so qualified does not amount to a material liability or disability to
the Company and its subsidiary, taken as a whole, and has full power
and authority to execute and perform its obligations under this
Agreement; the subsidiary of the Company is a corporation duly
incorporated and validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the ownership, leasing or operation of its
properties or assets or the conduct of its business requires such
qualification, except where the failure to be so qualified does not
amount to a material liability or disability to the
13
Company and its subsidiary, taken as a whole, and the subsidiary has
full power and authority to own, lease and operate its properties and
assets and conduct its business as described in the Registration
Statement and the Prospectus; all of the issued and outstanding shares
of capital stock of the subsidiary have been duly authorized and are
fully paid and nonassessable and, except for directors' qualifying
shares and as otherwise set forth in the Prospectus, are owned
beneficially by the Company free and clear of any security interests,
liens, encumbrances, equities or claims.
(xiii) The execution and delivery of this Agreement and the
issuance and sale of the Shares have been duly authorized by all
necessary corporate action of the Company, and this Agreement has been
duly executed and delivered by the Company and is the valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as its enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally.
(xiv) The issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (x)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except (I) if the
Company has elected to rely on Rule 462(b) and the Rule 462(b)
Registration Statement is not effective, the registration of certain
Shares pursuant to the Rule 462(b) Registration Statement that will be
effective upon filing in compliance with Rule 462(b) and (II) such as
have been obtained or made or such as may be required by the state
securities or Blue Sky laws of the various states of the United States
of America or other U.S. jurisdictions or by the National Association
of Securities Dealers, Inc. ("NASD") in connection with the offer and
sale of the Shares by the Underwriters, or (y) conflict with or result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Company or
its subsidiary is a party or by which the Company or its subsidiary or
any of their respective properties are bound, or the charter documents
or by-laws of the Company or its subsidiary, or any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or
its subsidiary.
(xv) The Company is not, and will conduct its operations in a
manner so that it continues not to be, an "investment company" and,
after giving effect to the Offering and the application of the
proceeds therefrom, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
14
Title, licenses and consents
(xvi) The Company and its subsidiary have good and marketable
title in fee simple to all items of real property and marketable title
to all personal property owned by each of them, in each case free and
clear of any security interests, liens, encumbrances, equities, claims
and other defects, except such as do not materially and adversely
affect the value of such property and do not interfere with the use
made or proposed to be made of such property by the Company or its
subsidiary, and any real property and buildings held under lease by
the Company or its subsidiary are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do
not interfere with the use made or proposed to be made of such
property and buildings by the Company or its subsidiary, in each case
except as described in or contemplated by the Prospectus.
(xvii) The Company and its subsidiary own or possess, or can
acquire on reasonable terms, all material patents, patent
applications, trademarks, service marks, trade names, licenses, know-
how, copyrights, trade secrets and proprietary or other confidential
information necessary to operate their respective businesses as
described in the Prospectus, and neither the Company nor its
subsidiary has received any notice of infringement of or conflict with
asserted rights of any third party with respect to any of the
foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a materially
adverse effect on or constitute a materially adverse change in, or
constitute a development involving a prospective materially adverse
effect on or change in, the condition (financial or otherwise),
earnings, properties, business affairs or business prospects,
stockholders' equity, net worth or results of operations of the
Company and its subsidiary, taken as a whole, except as described in
or contemplated by the Prospectus.
(xviii) The Company and its subsidiary possess all consents,
licenses, certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses as described in the Prospectus,
and neither the Company nor its subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a materially adverse effect on or constitute a
materially adverse change in, or constitute a development involving a
prospective materially adverse effect on or change in, the condition
(financial or otherwise), earnings, properties, business affairs or
business prospects, net worth or results of operations of the Company
and its subsidiary, taken as a whole, except as described in or
contemplated by the Prospectus.
Financial statements
(xix) Coopers & Xxxxxxx L.L.P., who have certified certain
financial statements of the Company and delivered their report with
respect to the audited financial statements and schedule included in
the Registration Statement and the
15
Prospectus, are independent public accountants as required by the
Securities Act and the applicable rules and regulations thereunder.
(xx) The consolidated financial statements and schedule of the
Company and its subsidiary included in the Registration Statement and
the Prospectus were prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout the
periods involved (except as otherwise noted therein) and they present
fairly the financial condition of the Company as at the dates at which
they were prepared and the results of operations of the Company in
respect of the periods for which they were prepared.
Internal Accounting Controls
(xxi) The Company and its subsidiary maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (w) transactions are executed in accordance with
management's general or specific authorizations; (x) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (y) access
to assets is permitted only in accordance with management's general or
specific authorization; and (z) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
Litigation
(xxii) No legal or governmental proceedings are pending or
threatened to which the Company or its subsidiary is a party or to
which the property of the Company or its subsidiary is subject that
are required to be described in the Registration Statement or the
Prospectus and are not described therein; and no statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
therein or filed as required.
Dividends and Distributions
(xxiii) The subsidiary of the Company is not currently
prohibited, directly or indirectly, from paying any dividends to the
Company, making any other distribution on its capital stock, repaying
to the Company any loans or advances to it from the Company or
transferring any of its property or assets to the Company or any other
subsidiary of the Company, and the Company is not currently
prohibited, directly or indirectly, from paying any dividends or
making any other distribution on its capital stock, in each case
except as described in or contemplated by the Prospectus.
Taxes
(xxiv) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions of the time for filing thereof (except in any case in which
the failure so to file would not have a materially
16
adverse effect on the Company and its subsidiary, taken as a whole)
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
described in or contemplated by the Prospectus.
Insurance
(xxv) The Company and its subsidiary are insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in their businesses as
described in the Prospectus; neither the Company nor its subsidiary
has been refused any insurance coverage sought or applied for; and
neither the Company nor its subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the condition (financial or
otherwise), earnings, properties, business affairs or business
prospects, net worth or results of operations of the Company and its
subsidiary, taken as a whole, except as described in or contemplated
by the Prospectus.
Pension and Labor
(xxvi) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (x) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (y) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(xxvii) No labor dispute with the employees of the Company or
its subsidiary exists or is threatened or imminent that could have a
materially adverse effect on or constitute a materially adverse change
in, or constitute a development involving a prospective materially
adverse effect on or change in, the condition (financial or
otherwise), properties, management, earnings, business affairs or
business prospects, net worth or results of operations of the Company
and its subsidiary, taken as a whole, except as described in or
contemplated by the Prospectus.
17
Environmental
(xxviii) Neither the Company nor its subsidiary is in violation
of any federal or state law or regulation relating to occupational
safety and health or to the storage, handling or transportation of
hazardous or toxic materials and the Company and its subsidiary have
received all permits, licenses or other approvals required of them
under applicable federal and state occupational safety and health and
environmental laws and regulations to conduct their respective
businesses as described in the Prospectus, and the Company and its
subsidiary are in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals which would not, singly or in the
aggregate, have a materially adverse effect on or constitute a
materially adverse change in, or constitute a development involving a
prospective materially adverse effect on or change in, the condition
(financial or otherwise), earnings, properties, business affairs or
business prospects, net worth or results of operations of the Company
and its subsidiary, taken as a whole, except as described in or
contemplated by the Prospectus.
Other Agreements
(xxix) No default by the Company or its subsidiary, or to their
knowledge, by another party, exists, and no event has occurred which,
with notice or lapse of time or both, would constitute a default by
the Company or its subsidiary, or to their knowledge, by another
party, in the due performance and observance of any term, covenant or
condition of any material indenture, mortgage, deed of trust, lease or
other material agreement or instrument to which the Company or its
subsidiary is a party or by which the Company or its subsidiary or any
of their respective properties is bound.
Absence of Materially Adverse Change
(xxx) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, neither the
Company nor its subsidiary has sustained any material loss or
interference with its business as described in the Prospectus or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, and there has been no materially
adverse change (including, without limitation, a change in management
or control), or development involving a prospective materially adverse
change, in the condition (financial or otherwise), management,
earnings, property, business affairs or business prospects,
stockholders' equity, net worth or results of operations of the
Company or its subsidiary, taken as a whole, other than as described
in or contemplated by the Prospectus (exclusive of any amendments or
supplements thereto).
(xxxi) No receiver or liquidator (or similar person) has been
appointed in respect of the Company or its subsidiary or in respect of
any part of the assets of the
18
Company or its subsidiary; no resolution, order of any court,
regulatory body, governmental body or otherwise, or petition or
application for an order, has been passed, made or presented for the
winding up of the Company or its subsidiary or for the protection of
the Company or its subsidiary from its creditors; and neither the
Company nor its subsidiary has stopped or suspended payments of its
debts, become unable to pay its debts or otherwise become insolvent.
(b) As a further condition of the obligation of the Underwriters to
underwrite and pay for the Shares, each Selling Stockholder (including each
Principal Selling Stockholder), severally and not jointly, represents and
warrants to, and agrees with, each of the several Underwriters that:
(i) Such Selling Stockholder has full power (corporate and other)
to enter into this Agreement and to sell, assign, transfer and deliver
to the Underwriters the Shares to be sold by such Selling Stockholder
hereunder in accordance with the terms of this Agreement; the
execution and delivery of this Agreement have been duly authorized by
all necessary corporate action of such Selling Stockholder; and this
Agreement has been duly executed and delivered by such Selling
Stockholder.
(ii) Such Selling Stockholder has duly executed and delivered a
power of attorney and custody agreement (with respect to such Selling
Stockholder, the "Power-of-Attorney" and the "Custody Agreement",
respectively), each in the form heretofore delivered to the
Representatives, appointing Xxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxx as
such Selling Stockholder's attorneys-in-fact (the "Attorney-in-Fact")
with authority to execute, deliver and perform this Agreement on
behalf of such Selling Stockholder and appointing First National Bank
of Boston, as custodian thereunder (the "Custodian"). Certificates in
negotiable form, endorsed in blank or accompanied by blank stock
powers duly executed, with signatures appropriately guaranteed,
representing the Shares to be sold by such Selling Stockholder
hereunder have been deposited with the Custodian pursuant to the
Custody Agreement for the purpose of delivery pursuant to this
Agreement. Such Selling Stockholder has full power (corporate and
other) to enter into the Custody Agreement and the Power-of-Attorney
and to perform its obligations under the Custody Agreement. The
execution and delivery of the Custody Agreement and the Power of
Attorney have been duly authorized by all necessary corporate action
of such Selling Stockholder; the Custody Agreement and the Power-of-
Attorney have been duly executed and delivered by such Selling
Stockholder and, assuming due authorization, execution and delivery by
the Custodian, are the legal, valid, binding and enforceable
instruments of such Selling Stockholder. Such Selling Stockholder
agrees that each of the Shares represented by the certificates on
deposit with the Custodian is subject to the interests of the
Underwriters hereunder, that the arrangements made for such custody,
the appointment of the Attorney-in-Fact and the right, power and
authority of the Attorney-in-Fact to execute and deliver this
Agreement, to agree on the price at which the Shares (including such
Selling Stockholder's Shares) are to be sold to the Underwriters, and
to carry out the terms of this Agreement, are to that extent
irrevocable and that the obligations of such Selling Stockholder
hereunder shall not
19
be terminated, except as provided in this Agreement or the Custody
Agreement, by any act of such Selling Stockholder, by operation of law
or otherwise, whether in the case of any individual Selling
Stockholder by the death or incapacity of such Selling Stockholder, in
the case of a trust or estate by the death of the trustee or trustees
or the executor or executors or the termination of such trust or
estate, or in the case of a corporate or partnership Selling
Stockholder by its liquidation or dissolution or by the occurrence of
any other event. If any individual Selling Stockholder, trustee or
executor should die or become incapacitated or any such trust should
be terminated, or if any corporate or partnership Selling Stockholder
shall liquidate or dissolve, or if any other event should occur,
before the delivery of such Shares hereunder, the certificates for
such Shares deposited with the Custodian shall be delivered by the
Custodian in accordance with the respective terms and conditions of
this Agreement as if such death, incapacity, termination, liquidation
or dissolution or other event had not occurred, regardless of whether
or not the Custodian or the Attorney-in-Fact shall have received
notice thereof.
(iii) Such Selling Stockholder is the lawful owner of the Shares
to be sold by such Selling Stockholder hereunder and upon sale and
delivery of, and payment for, such Shares, as provided herein, such
Selling Stockholder will convey good and marketable title to such
Shares, free and clear of any security interests, liens, encumbrances,
equities, claims or other defects.
(iv) Neither such Selling Stockholder nor any person acting on
behalf of it has, directly or indirectly, (x) taken any action
designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares or (y) since the filing of the
Original Registration Statement (I) sold, bid for, purchased, or paid
anyone any compensation for soliciting purchases of, the Shares or
(II) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company
(except for the sale of Shares by the Selling Stockholders under this
Agreement).
(v) Such Selling Stockholder has carefully reviewed this
Agreement, the Prospectus and the Registration Statement, and the
information regarding such Selling Stockholder set forth therein under
the caption "Principal and Selling Stockholders" is complete and
accurate. All information furnished by or on behalf of such Selling
Stockholder for use in the Registration Statement is, and on each
Closing Date will be, true, correct, and complete, and does not, and
on such Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make
such information not misleading, and all information furnished in
writing by or on behalf of such Selling Stockholder for use in the
Prospectus is, and on such Closing Date will be, true, correct, and
complete, and does not, and on such Closing Date will not, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make such information not misleading in the light of the
circumstances under which they were made.
20
(vi) The sale by such Selling Stockholder of Shares pursuant
hereto is not prompted by any adverse information concerning the
Company or its subsidiary that is not set forth in the Registration
Statement or the Prospectus.
(vii) The sale of the Shares to the Underwriters by such Selling
Stockholder pursuant to this Agreement, the compliance by such Selling
Stockholder with the other provisions of this Agreement, the Custody
Agreement and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained or made or such as may be required
by state securities or Blue Sky laws of the various states of the
United States of America or such other U.S. jurisdictions or by the
NASD and, if the Registration Statement is not effective under the
Securities Act as of the time of execution hereof, such as may be
required (and shall be obtained as provided in this Agreement) under
the Securities Act, or (ii) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which such Selling Stockholder or any of
its subsidiaries is a party or by which such Selling Stockholder or
any of its subsidiaries or any of their respective properties are
bound, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator applicable to such Selling Stockholder or any of its
subsidiaries.
(viii) Such Selling Stockholder has not distributed and, prior
to the later of (x) any Closing Date and (y) the completion of the
distribution of the Shares, will not distribute any offering material
in connection with the offering other than the Registration Statement
or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto.
(c) The above representations and warranties shall be deemed to be
repeated at each Closing, and all references therein to the Shares and the
Closing Date shall be deemed to refer to the Firm Shares or the Option Shares
and the First Closing Date or the applicable Option Closing Date, each as
applicable.
Section 6. Indemnity.
---------
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), against any and all losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company in Section 5 hereof,
21
(ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other costs or expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein; and provided, further,
that the Company will not be liable to any Underwriter or any person controlling
such Underwriter with respect to any such untrue statement, alleged untrue
statement, omission or alleged omission made in any Preliminary Prospectus that
is corrected in the Prospectus or any amendment or supplement thereto if the
person asserting any such loss, claim, damage or liability purchased Shares from
such Underwriter but was not sent or given a copy of the Prospectus, as amended
or supplemented, in any case where such delivery of the Prospectus, as amended
or supplemented, was required by the Securities Act, unless such failure to
deliver the Prospectus, as amended or supplemented, was a result of
noncompliance by the Company with Section 3 hereof. The indemnity provided for
in this Section 6 shall be in addition to any liability which the Company may
otherwise have. The Company will not, without the prior written consent of the
Representatives, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any such Representatives
or any person who controls any such Representatives is a party to such claim,
action, suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of all of the Underwriters and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(b) Each of the Principal Selling Stockholders, Xxxxxx X. Xxxxx and
the Selling Stockholders affiliated with U.S. Venture Partners 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 Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement made by such Selling Stockholder in Section 5 hereof, and will
reimburse, as incurred, each Underwriter and each such controlling person for
any legal or other
22
costs or expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating, defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action; provided, however, that such Selling Stockholder will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein. Notwithstanding any other
provision of this paragraph (b), no Selling Stockholder shall be liable for
indemnification hereunder in an aggregate amount exceeding the net proceeds
(before deducting expenses) received by such Selling Stockholder in respect of
the Shares sold by such Selling Stockholder to the Underwriters pursuant to this
Agreement. The indemnity provided for in this Section 6 shall be in addition to
any liability which the Selling Stockholders may otherwise have. The Selling
Stockholders will not, without the prior written consent of the Representatives,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not any such Representatives or any person
who controls any such Representatives is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
(c) Each of the Selling Stockholders other than the Principal Selling
Stockholders, Xxxxxx X. Xxxxx and the Selling Stockholders affiliated with U.S.
Venture Partners 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 Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which such Underwriter or such controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement made by such Selling
Stockholder in Section 5 hereof, and will reimburse, as incurred, each
Underwriter and each such controlling person for any legal or other costs or
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action;
provided, however, that to the extent that such loss, claim, damage, liability
or action arises out of or is based upon Section 5(b)(v), such Selling
Stockholder will be liable in any such case only to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement or any amendment thereto, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information relating to such Selling Stockholder
furnished to the Company by or on behalf of such Selling Stockholder
specifically for use therein. Notwithstanding any other provision of this
paragraph (b), no Selling Stockholder shall be liable for indemnification
hereunder in an aggregate amount exceeding the net proceeds (before deducting
expenses) received by such Selling Stockholder in respect of the Shares sold by
such Selling Stockholder to the Underwriters pursuant to this Agreement. The
indemnity provided for in this Section 6 shall be in addition to any liability
which the Selling Stockholders may otherwise have. The Selling Stockholders
will not, without the prior
23
written consent of the Representatives, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Representatives or any person who controls any such
Representatives is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of all
of the Underwriters and such controlling persons from all liability arising out
of such claim, action, suit or proceeding.
(d) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, each Selling Stockholder and each person, if
any, who controls the Company or such Selling Stockholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which the Company or any such director
or officer of the Company, such Selling Stockholder or any such controlling
person of the Company or such Selling Stockholder may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto or (ii) the
omission or the alleged omission to state in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto 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 reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company or any such director,
officer or controlling person or such Selling Stockholder or controlling person
of such Selling Stockholder in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or any action in respect thereof. The indemnity provided in
this Section 6 will be in addition to any liability which any Underwriter may
otherwise have. The Underwriters will not, without the prior written consent of
the Company, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Company or any
person who controls the Company is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Company and such controlling persons from all
liability arising out of such claim, action, suit or proceeding. The remedies
provided for in this Section 6 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
(e) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a), (b), (c) or (d) of this Section 6, such person
(for purposes of this paragraph (e), the "indemnified party") shall, promptly
after receipt by such party of notice of the commencement of such action, notify
the person against whom such indemnity may be sought (for purposes of this
paragraph (d), the "indemnifying party"), but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 6.
24
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that 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 one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense of any such action and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated in writing by the
Representatives in the case of paragraph (a), (b) or (c) of this Section 6,
representing the indemnified parties under such paragraph (a), (b) or (c) who
are parties to such action or actions), or (ii) the indemnifying party does not
promptly retain counsel satisfactory to the indemnified party, or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. All fees and expenses reimbursed
pursuant to this paragraph (e) shall be reimbursed as they are incurred. After
such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
(f) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 6 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the Offering or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the Offering (before deducting expenses)
received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions
25
received by the Underwriters. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters, the parties' relative intents, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Company, the Selling Stockholders and the Underwriters agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this paragraph (f). Notwithstanding any other provision of this paragraph
(f), no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the total public offering price of the Shares purchased by
such Underwriter under this Agreement, less the aggregate amount of any damages
that such Underwriter has otherwise been required to pay in respect of the same
or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(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
hereunder are several in proportion to their respective underwriting obligations
and not joint, and contributions among Underwriters shall be governed by the
provisions of the Deutsche Xxxxxx Xxxxxxxx Inc. Master Agreement Among
Underwriters. For purposes of this paragraph (f), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company or such Selling Stockholder, as the case may be.
Section 7. Conditions Precedent. The obligations of the several Underwriters
--------------------
to purchase and pay for the Shares shall be subject, in the Representatives'
sole discretion, to the accuracy of the representations and warranties of the
Company and the Selling Stockholders contained herein as of the date hereof and
as of each Closing Date, as if made on and as of each Closing Date, to the
accuracy of the statements of the Company's officers and the officers of the
Selling Stockholders made pursuant to the provisions hereof, to the performance
by the Company and the Selling Stockholders of their respective covenants and
agreements hereunder and to the following additional conditions:
(a) (i) If the Original Registration Statement or any amendment
thereto filed prior to the First Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment shall have been declared effective not later than 6:00 P.M. New York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 4:30 P.M. New York City time on such date,
or 12:00 Noon New York City time on the business day following the day on which
the public offering price was determined, if such determination occurred after
4:30 P.M. New York City time on such date, and (ii) if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have been
declared effective not later than the time confirmations are sent or given as
specified by Rule 462(b)(2), or such later time and date as shall have been
consented to by the
26
Representatives; if required, the Prospectus or any Term Sheet that constitutes
a part thereof and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required by Rules
434 and 424(b) under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto shall have
been issued, and no proceedings for that purpose shall have been instituted or
threatened or, to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission; and the Company shall have complied with any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received a legal opinion from
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Registration Statement is effective under the Securities
Act; any required filing of the Prospectus, or any Term Sheet
that constitutes a part thereof, pursuant to Rules 434 and 424(b)
has been made in the manner and within the time period required
by Rules 434 and 424(b); and no stop order suspending the
effectiveness of the Registration Statement or any amendment
thereto has been issued and, to the best knowledge of such
counsel, no proceedings for that purpose are pending or
threatened by the Commission;
(ii) the Original Registration Statement and each amendment
thereto, any Rule 462(b) Registration Statement and the
Prospectus (in each case, other than the financial statements,
including the notes thereto, schedule and other financial
information contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the applicable requirements of the Securities Act and the
rules and regulations of the Commission thereunder;
(iii) such counsel has no reason to believe that (in each case,
other than the financial statements, including the notes thereto,
schedule and other financial information contained therein, as to
which such counsel need express no opinion) (x) the Registration
Statement, as of its 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 (y) the Prospectus, as of its date or
the date of such opinion, included or includes any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(iv) if the Company elects to rely on Rule 434 under the
Securities Act, the Prospectus is not "materially different", as
such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time of its effectiveness or an
effective post-effective amendment thereto (including
27
such information that is permitted to be omitted pursuant to Rule
430A under the Securities Act);
(v) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus as of the dates
stated therein; all of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid and nonassessable, have been issued in compliance with
all applicable federal and state securities laws and were not
issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities; the Shares
have been duly authorized by all necessary corporate action of
the Company and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued,
fully paid and nonassessable; no holders of outstanding shares of
capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Shares;
and no holder of securities of the Company has any right which
has not been fully exercised or waived to require the Company to
register the offer or sale of any securities owned by such holder
under the Securities Act in the Offering contemplated by this
Agreement;
(vi) all of the Shares have been duly authorized and accepted for
quotation on the Nasdaq National Market, subject to official
notice of issuance;
(vii) the Company and its subsidiary have been duly organized
and are validly existing as corporations in good standing under
the laws of their respective jurisdictions of incorporation and
are duly qualified to transact business as foreign corporations
and are in good standing under the laws of all other
jurisdictions where the ownership, leasing or operation of their
respective properties or assets or the conduct of their
respective businesses requires such qualification, except where
the failure to be so qualified does not amount to a material
liability or disability to the Company and its subsidiary, taken
as a whole; the Company and its subsidiary have full power and
authority to own, lease and operate their respective properties
and assets and conduct their respective businesses as described
in the Registration Statement and the Prospectus, and the Company
has corporate power to enter into this Agreement and to carry out
all the terms and provisions hereof to be carried out by it; all
of the issued and outstanding shares of capital stock of the
Company's subsidiary have been duly authorized and validly
issued, are fully paid and nonassessable and are owned
beneficially by the Company free and clear of any perfected
security interests or, to the best knowledge of such counsel, any
other security interests, liens, encumbrances, equities or
claims;
(viii) the statements set forth under the heading "Description
of Capital Stock" in the Prospectus, insofar as such statements
purport to summarize certain provisions of the capital stock of
the Company, provide a fair summary of such provisions; and the
statements set forth under the headings
28
"Risk Factors--Dependence on Key Personnel," "-Certain Anti-
Takeover Provisions," and "-Shares Eligible for Future Sale,"
"Management--Limitation on Liability and Indemnification
Matters," "--Stock Plans," "--401(k) Plan," and "--Employment
Agreements and Change in Control Arrangements," "Certain
Transactions," "Principal and Selling Stockholders," and "Shares
Eligible for Future Sale" in the Prospectus, insofar as such
statements constitute a summary of the legal matters, documents
or proceedings referred to therein, have been reviewed by such
counsel and fairly present the information called for with
respect to such legal matters, documents and proceedings in all
material respects as required by the Securities Act and the rules
and regulations thereunder;
(ix) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and
this Agreement has been duly executed and delivered by the
Company;
(x) the issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (x) require the consent, approval,
authorization, registration or qualification of or with any
governmental authority, except such as have been obtained or made
(and specified in such opinion) or such as may be required by the
securities or Blue Sky laws of the various states of the United
States of America and other U.S. jurisdictions in connection with
the offer and sale of the Shares by the Underwriters, or (y)
conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under (I) any
indenture, mortgage, deed of trust, lease or other agreement or
instrument, known to such counsel, to which the Company or its
subsidiary is a party or by which the Company or its subsidiary
or any of their properties is bound, and which is either required
to be filed as an exhibit to the Registration Statement or is an
agreement with a customer of the Company identified in the
Prospectus, or (II) the charter documents or by-laws of the
Company or its subsidiary, or any statute or any judgment,
decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel
and applicable to the Company or its subsidiary;
(xi) the Company is not an "investment company" and, after giving
effect to the Offering and the application of the proceeds
therefrom, will not be an "investment company", as such term is
defined in the 1940 Act; and
(xii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or its
subsidiary is a party or to which the property of the Company or
its subsidiary is subject that are required to be described in
the Registration Statement or the Prospectus and are not
described therein or any statutes, regulations, contracts
29
or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described
therein or filed as required.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than the States of Delaware and
California or the United States, to the extent satisfactory in form and scope to
counsel for the Underwriters, upon the opinion of local counsel. The foregoing
opinion shall also state that the Underwriters are justified in relying upon
such opinion of such local counsel, and copies of such opinion shall be
delivered to the Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion. The opinions of issuer's counsel described herein shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(c) The Representatives shall have received a legal opinion from
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the
Selling Stockholders, dated the Closing Date, to the effect that:
(i) such Selling Stockholder has full power (corporate and other)
to enter into this Agreement, the Custody Agreement and the
Power-of-Attorney and to sell, assign, transfer and deliver the
Shares being sold by such Selling Stockholder hereunder in the
manner provided in this Agreement and to perform its obligations
under the Custody Agreement; the execution and delivery of this
Agreement, the Custody Agreement and the Power of Attorney have
been duly authorized by all necessary action of each Selling
Stockholder; this Agreement, the Custody Agreement and the Power-
of-Attorney have been duly executed and delivered by each Selling
Stockholder; assuming due authorization, execution and delivery
by the Custodian, the Custody Agreement and the Power-of-Attorney
are the legal, valid, binding and enforceable instruments of such
Selling Stockholder, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law);
(ii) the delivery by each Selling Stockholder to the several
Underwriters of certificates for the Shares being sold hereunder
by such Selling Stockholder against payment therefor as provided
herein, will convey good and marketable title to such Shares to
the several Underwriters, free and clear of all security
interests, liens, encumbrances, equities, claims or other
defects;
(iii) the sale of the Shares to the Underwriters by such Selling
Stockholder pursuant to this Agreement, the compliance by such
Selling Stockholder with the other provisions of this Agreement
and the Custody
30
Agreement and the consummation of the other transactions herein
contemplated do not (x) require the consent, approval,
authorization, registration or qualification of or with any
governmental authority, except such as have been obtained and
such as may be required under state securities or Blue Sky laws,
or (y) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which, to the best of such counsel's knowledge,
such Selling Stockholder or any of its subsidiaries is a party or
by which such Selling Stockholder or any of its subsidiaries or
any of their respective properties are bound, or the charter
documents or bylaws of such Selling Stockholder or any of its
subsidiaries or any statute, rule or regulation or, to the best
of such counsel's knowledge, any judgment, decree, order of any
court or other governmental authority or any arbitrator
applicable to such Selling Stockholder or any of its
subsidiaries.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of the Selling
Stockholders and public officials and, as to matters involving the application
of laws of any jurisdiction other than the State of California or the United
States, to the extent satisfactory in form and scope to counsel for the
Underwriters, upon the opinion of local counsel. The foregoing opinion shall
also state that the Underwriters are justified in relying upon such opinion of
such local counsel, and copies of such opinion shall be delivered to the
Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (c) shall include any amendment or supplement thereto at the date of
such opinion.
(d) The Representatives shall have received a legal opinion from
Fenwick & West LLP, counsel for the Underwriters, dated the Closing Date,
covering the issuance and sale of the Shares, the Registration Statement and the
Prospectus, and such other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(e) The Representatives shall have received from Coopers & Xxxxxxx
L.L.P. a letter or letters dated, respectively, the date hereof and the Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company
and its subsidiary within the meaning of the Securities Act and
the applicable rules and regulations thereunder;
(ii) in their opinion, the audited financial statements and
schedule examined by them and included in the Registration
Statement and the Prospectus comply in form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published rules and regulations;
31
(iii) on the basis of a reading of the latest available interim
unaudited consolidated financial statements of the Company,
carrying out certain specified procedures (which do not
constitute an examination made in accordance with generally
accepted auditing standards) that would not necessarily reveal
matters of significance with respect to the comments set forth in
this paragraph (iii), a reading of the minute books of the
stockholders, the board of directors and any committees thereof
of the Company and its subsidiary, and inquiries of certain
officials of the Company and its subsidiary who have
responsibility for financial and accounting matters, nothing came
to their attention that caused them to believe that:
(x) the unaudited consolidated financial statements of the
Company and its subsidiary included in the Registration
Statement and the Prospectus do not comply in form in all
material respects with the applicable accounting
requirements of the Securities Act and the related published
rules and regulations thereunder or are not in conformity
with GAAP applied on a basis substantially consistent with
that of the audited financial statements included in the
Registration Statement and the Prospectus;
(y) at a specific date not more than five business days
prior to the date of such letter, there were any changes in
the capital stock or long-term debt of the Company or any
decreases in net current assets or stockholders' equity of
the Company, in each case compared with amounts shown on the
March 31, 1998 balance sheet included in the Registration
Statement and the Prospectus, or for the period from April
1, 1998 to such specified date there were any decreases, as
compared with a period of comparable length commencing on
April 1, 1997, in revenue, net income before provision for
income taxes or total or per share amounts of net income of
the Company, except in all instances for changes, decreases
or increases set forth in such letter.
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information that are derived from the
general accounting records of the Company and are included in the
Registration Statement and the Prospectus under the captions
"Prospectus Summary," "Risk Factors," "Use of Proceeds,"
"Capitalization," "Dilution," "Selected Financial Data,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Management," "Certain
Transactions," "Principal and Selling Stockholders," "Description
of Capital Stock," "Shares Eligible for Future Sales" and "Item
15. Recent Sales of Unregistered Securities" and in Exhibit
11.01 to the Registration Statement, and have compared such
amounts, percentages and financial information with such records
of the Company and with information derived from such records and
have found them to be in agreement, excluding any questions of
legal interpretation.
32
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (I) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (II) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement, as amended as of the date
hereof. References to the Registration Statement and the Prospectus in this
paragraph (e) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(f) The Company shall have furnished or caused to be furnished to the
Underwriters at the Closing a certificate of its President and Chief Executive
Officer and its Vice President, Finance and Chief Financial Officer satisfactory
to the Underwriters to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the
Closing Date; the Registration Statement, as amended as of the
Closing Date, does not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading, and the Prospectus, as amended
or supplemented as of the Closing Date, does not include 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 under which they were made, not
misleading; and the Company has performed all covenants and
agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued,
and no proceedings for that purpose have been instituted or
threatened or, to the best of the Company's knowledge, are
contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus,
neither the Company nor its subsidiary has sustained any material
loss or interference with its business as described in the
Prospectus or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding, and there
has not been any materially adverse change (including, without
limitation, a change in management or control), or development
involving a prospective materially adverse change, in the
condition (financial or otherwise), management, earnings,
properties, business affairs or business prospects, stockholders'
equity, net worth or results of operations of the Company or its
subsidiary, except in each case as described in or contemplated
by the Prospectus (exclusive of any amendment or supplement
thereto).
33
(g) The Representatives shall have received from each Selling
Stockholder a certificate, signed by such Selling Stockholder, dated the Closing
Date, to the effect that:
(i) the representations and warranties of such Selling
Stockholder in this Agreement are true and correct as if made on
and as of the Closing Date;
(ii) the Registration Statement, as amended as of the Closing
Date, does not include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading, and the Prospectus, as amended or
supplemented as of the Closing Date, does not include 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 under which they were made, not misleading;
and
(iii) such Selling Stockholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior
to the Closing Date.
(h) The Representatives shall have received from each officer,
director and Selling Stockholder an agreement dated on or before the date of
this Agreement to the effect that such person will not publicly announce any
intention to and will not, without the prior written consent of the
Representatives on behalf of the Underwriters, (i) offer, pledge, sell, offer to
sell, contract to sell, sell any option or contract to purchase, purchase any
option to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any of the shares of Common
Stock or any securities convertible into, or exercisable or exchangeable for,
Common Stock, or (ii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the shares of
Common Stock or any securities convertible into, or exercisable or exchangeable
for, shares of Common Stock (whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of shares of Common Stock or such
other securities, in cash or otherwise), in each case, beneficially owned
(within the meaning of Rule 13d-3 under the Exchange Act) or otherwise
controlled by such person on the date hereof or hereafter acquired, for a period
beginning from the date hereof and continuing to and including the date 180 days
after the date hereof in the case of the Principal Selling Stockholders and 90
days after the date hereof in the case of all other executive officers,
directors and Selling Stockholders; provided, however, that such person may,
without the prior written consent of the Representatives on behalf of the
Underwriters, transfer shares of Common Stock or such other securities to
members of such person's immediate family or to trusts for the benefit of
members of such person's immediate family or in connection with bona fide gifts,
provided that any transferee agrees to the transfer restrictions described
above.
(i) Prior to the commencement of the Offering, the Company shall have
made an application for the quotation of the Shares on the Nasdaq National
Market and the Shares shall have been included for trading on the Nasdaq
National Market, subject to official notice of issuance.
(j) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not
34
indicate the direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(k) On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company and the
Selling Stockholders.
(l) Each of (i) the ISDA Master Agreement by and among Deutsche Bank
AG, London Branch ("Deutsche Bank"), Deutsche Xxxxxx Xxxxxxxx Inc. ("DMG") and
Synopsys, Inc. ("Synopsys") regarding the forward sale of 891,448 shares of
Common Stock of the Company by Synopsys, and the related Confirmation dated
April 15, 1998, and (ii) the [Master Securities Loan Agreement] by and among
Deutsche Bank and Synopsys regarding the loan of 891,448 shares of Common Stock
of the Company, shall be in full force and effect and the parties thereto shall
have performed all of their obligations to be performed at or prior to the
Closing Date.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
satisfactory in all material respects to the Representatives and counsel for the
Underwriters. The Company and the Selling Stockholders shall furnish to the
Representatives such conformed copies of such opinions, certificates, letters
and documents in such quantities as the Representatives and counsel for the
Underwriters shall reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Shares, except that all references therein
to the Shares and the Closing Date shall be deemed to refer to the Firm Shares
or the Option Shares and the First Closing Date or the related Option Closing
Date, each as applicable.
Section 8. Default of Underwriters. If, at any Closing, any one or more of the
-----------------------
Underwriters shall fail or refuse to purchase Shares that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is ten percent or less of the aggregate number of the Shares to be
purchased on such date, the other Underwriters may make arrangements
satisfactory to the Representatives for the purchase of such Shares by other
persons (who may include one or more of the non-defaulting Underwriters,
including the Representatives), but if no such arrangements are made by the
First Closing Date or the related Option Closing Date, as the case may be, the
other Underwriters shall be obligated severally in the proportions that the
number of Firm Shares set forth opposite their respective names in Schedule 1
hereto bears to the aggregate number of Firm Shares set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, at the First Closing, any Underwriter or Underwriters shall fail or
refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than ten per cent of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to the
Representatives, the Company and the Selling Stockholders for the purchase of
such Firm Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter,
the Company or any Selling Stockholder. In any such case either the
Representatives or the Company shall have the right to postpone the Closing, 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. If, at any Option Closing, any
Underwriter or Underwriters shall fail or refuse to purchase Option Shares, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Option Shares or (ii) purchase not less than
the number of Option Shares that such non-defaulting
35
Underwriters would have been obligated to purchase in the absence of such
default. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 8. Any action taken under this
Section 8 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
Section 9. Termination. This Agreement shall be subject to termination in the
-----------
sole discretion of the Representatives by notice to the Company and the Selling
Stockholders given prior to any Closing Date in the event that the Company or
any Selling Stockholder shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder at or prior thereto or, if at or prior to any Closing Date, (a)
trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited or minimum or
maximum prices shall have been established by or on, as the case may be, the
Commission or the New York Stock Exchange or the Nasdaq National Market; (b)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market; (c) a general moratorium on
commercial banking activities shall have been declared by Federal, New York
State or California authorities; (d) there shall have occurred (i) an outbreak
or escalation of hostilities between the United States and any foreign power,
(ii) an outbreak or escalation of any other insurrection or armed conflict
involving the United States, or (iii) any other calamity or crisis or materially
adverse change in general economic, political or financial conditions having an
effect on the U.S. financial markets that, in the sole judgment of the
Representatives, makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Shares as contemplated by the Registration
Statement, as amended as of the date hereof; or (e) the Company or its
subsidiary shall have, in the sole judgment of the Representatives, sustained
any material loss or interference with their respective businesses as described
in the Prospectus or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, or there shall have been any materially
adverse change (including, without limitation, a change in management or
control), or constitute a development involving a prospective materially adverse
change, in the condition (financial or otherwise), management, earnings,
properties, business affairs or business prospects, stockholders' equity, net
worth or results of operations of the Company or its subsidiary, except in each
case as described in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto). Termination of this Agreement pursuant to
this Section 9 shall be without liability of any party to any other party except
for the liability of the Company in relation to expenses as provided in Sections
4 and 10 hereof, the liability of the Selling Stockholders in relation to
expenses as provided in Sections 4 and 10 hereof, the indemnity provided in
Section 6 hereof and any liability arising before or in relation to such
termination.
Section 10. Reimbursement of Expenses. If the sale of the Shares provided for
-------------------------
herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied or because of any
termination pursuant to Section 9 hereof (other than by reason of a default by
any of the Underwriters), the Company shall reimburse the Underwriters,
severally upon demand, for all out-of-pocket expenses (including fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Shares. If the Company is required
to make any payments to the Underwriters under this Section 10 because of any
Selling Stockholder's refusal, inability or failure to satisfy any condition to
the obligations of the Underwriters set forth in Section 7 hereof, such
defaulting Selling
36
Stockholder, pro rata in proportion to the percentage of Shares to be sold by
--- ----
each, shall reimburse the Company on demand for all amounts so paid.
Section 11. Information Supplied by Underwriters. The statements set forth in
------------------------------------
the last paragraph on the front cover page and under the heading "Underwriting"
in any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Section 5(a)(ii) and Section 6 hereof. The Underwriters confirm that such
statements (to such extent) are correct.
Section 12. Notices. In all dealings hereunder, you shall act on behalf of
-------
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives. Any notice or notification in
any form to be given under this Agreement may be delivered in person or sent by
facsimile or telephone (subject in the case of a communication by telephone to
confirmation by facsimile) addressed to:
in the case of the Company:
Artisan Components, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
in the case of the Underwriters:
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
In the case of the Selling Stockholders, any such notice shall be addressed to
the Selling Stockholders at the addresses set forth in Schedule 2 hereto. Any
notice under this Section 12 shall take effect, in the case of delivery, at the
time of delivery and, in the case of facsimile, at the time of dispatch with
confirmed receipt.
Section 13. Miscellaneous.
-------------
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect, the meaning or interpretation
of this Agreement.
37
(c) For purposes of this Agreement, (a) "business day" means any day
on which the New York Stock Exchange is open for trading, and (b) "subsidiary"
has the meaning set forth in Rule 405 under the Securities Act.
(d) This Agreement may be executed in any number of counterparts, all
of which, taken together, shall constitute one and the same Agreement and any
party may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding
upon the several Underwriters, the Company, the Selling Stockholders and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that (i)
the indemnities of the Company and the Selling Stockholders contained in Section
6 hereof shall also be for the benefit of any person or persons who control any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and (ii) the indemnities of the Underwriters contained in
Section 6 hereof shall also be for the benefit of the directors of the Company,
the officers of the Company who have signed the Registration Statement, each
Selling Stockholder and any person or persons who control the Company or such
Selling Stockholder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act. No purchaser of Shares from any Underwriter
shall be deemed a successor because of such purchase.
(f) The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Company, its officers, the Selling
Stockholders and the several Underwriters set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement shall remain in
full force and effect, regardless of (i) any investigation made by or on behalf
of the Company, any of its officers or directors, the Selling Stockholders, any
Underwriter or any controlling person referred to in Section 6 hereof and (ii)
delivery of and payment for the Shares. The respective agreements, covenants,
indemnities and other statements set forth in Sections 4, 6 and 10 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
Section 14. Severability. It is the desire and intent of the parties that the
------------
provisions of this Agreement be enforced to the fullest extent permissible under
the law and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this Agreement would be
held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 15. Governing Law. The validity and interpretation of this Agreement,
-------------
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
38
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in the Deutsche Xxxxxx Xxxxxxxx Inc. Master Agreement Among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
Very truly yours,
Artisan Components, Inc.
By
-----------------------------
Chief Executive Officer
The Selling Stockholders identified in Schedule 2
By
-----------------------------------------------
Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
DEUTSCHE XXXXXX XXXXXXXX
XXXXXXXXX & XXXXX L.L.C.
XXXX XXXXXXXX XXXXXXX
(A division of Xxxx Xxxxxxxx Incorporated)
By: DEUTSCHE XXXXXX XXXXXXXX
By
-----------------------
Xxxx Xxxxxxxx
By
-----------------------
Xxxx Xxxxxxxx
For itself and on behalf of the Representatives.
39
SCHEDULE 1
The Underwriters
Underwriter Underwriting commitment
----------- -----------------------
Deutsche Xxxxxx Xxxxxxxx Inc.
Xxxxxxxxx & Xxxxx LLC
Xxxx Xxxxxxxx Xxxxxxx
---------
Total...................................... 3,000,000
=========
SCHEDULE 2
The Selling Stockholders
Number of Firm
Selling Stockholders Shares to be Sold
-------------------- -----------------
[Entities affiliated with U.S. Venture
Partners]................................. 500,000
Xxxxxx X. Xxxxx............................. 475,000
Xxxx X. Xxxxxxx............................. 100,050
Xxxx. X. Xxxxxxxxx.......................... 96,150
Xxxxx X. Xxxx............................... 90,050
Xxxxx X. Xxxxxx............................. 88,940
Xxxxxxx Xxxxxx.............................. 34,978
Xxxxxxx X. Xxxxx............................ 9,514
[Other Selling Stockholders]................ 45,000
---------
Total.......................................
=========
