Exhibit 1.1
PRINTCAFE SOFTWARE, INC.
7,500,000 SHARES
COMMON STOCK
($0.0001 PAR VALUE)
UNDERWRITING AGREEMENT
____, 2002
UNDERWRITING AGREEMENT
____, 2002
UBS WARBURG LLC
XXXXXXXXX XXXXXXXX, INC.
U.S. BANCORP XXXXX XXXXXXX INC.
MCDONALD INVESTMENTS INC.
As Representatives of the several Underwriters
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Printcafe Software, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the underwriters named in SCHEDULE A hereto (the
"Underwriters") an aggregate of 7,500,000 shares (the "Firm Shares") of common
stock, $0.0001 par value ("Common Stock"), of the Company. In addition, solely
for the purpose of covering over-allotments, the Company proposes to grant to
the Underwriters the option to purchase from the Company up to an additional
1,125,000 shares of Common Stock (the "Additional Shares"). The Firm Shares and
the Additional Shares are hereinafter collectively sometimes referred to as the
"Shares." The Shares are described in the Prospectus referred to below.
The Company hereby acknowledges that in connection with the proposed
offering of the Shares, it has requested UBS Warburg LLC ("UBS Warburg") to
administer a directed share program (the "Directed Share Program") under which
up to 525,000 of the Firm Shares (the "Reserved Shares") shall be reserved for
sale at the initial public offering price to the Company's officers, directors,
employees and consultants and others having a relationship with the Company (the
"Directed Share Participants") as part of the distribution of the Shares by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. (the "NASD") and all other applicable laws, rules and regulations.
The number of Shares available for sale to the general public will be reduced to
the extent that Directed Share Participants purchase Reserved Shares. You may
offer any Reserved Shares not purchased by Directed Share Participants to the
general public on the same basis as the other Shares being issued and sold
hereunder. The Company has supplied UBS Warburg with names, addresses and
telephone numbers of the individuals or other entities that the Company has
designated to be participants in the Directed Share Program. It is understood
that any number of those designated to participate in the Directed Share Program
may decline to do so.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "Act"), with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-1 (File No. 333-82646), including a prospectus,
relating to the Shares. The Company has furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary prospectuses
(each thereof being herein called a "Preliminary Prospectus") relating to the
Shares. Except where the context otherwise requires, the registration statement,
as amended when it becomes effective, including all documents filed as a part
thereof, and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Act and deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act and also including any registration statement filed pursuant
to Rule 462(b) under the Act, is herein called the Registration Statement, and
the prospectus, in
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the form filed by the Company with the Commission pursuant to Rule 424(b) under
the Act on or before the second business day after the date hereof (or such
earlier time as may be required under the Act) or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time it became effective, is herein called the Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Company agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
in SCHEDULE A hereto, in each case at a purchase price of $____ per Share. The
Company is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the
effective date of the Registration Statement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus.
In addition, the Company hereby grants to the several Underwriters
the option to purchase, and upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for
the Firm Shares. This option may be exercised by you on behalf of the several
Underwriters at any time (but not more than once) on or before the thirtieth day
following the date hereof, by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised, and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the additional time of
purchase); provided, however, that the additional time of purchase shall not be
earlier than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. As used herein "business day" shall mean a day on which the New
York Stock Exchange is open for trading. The number of Additional Shares to be
sold to each Underwriter shall be the number that bears the same proportion to
the aggregate number of Additional Shares being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on SCHEDULE A hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer to a bank
account specified by the Company, against delivery of the certificates for the
Firm Shares to you through the facilities of the Depository Trust Company
("DTC") for the respective accounts of the Underwriters. Such payment and
delivery shall be made at 10 A.M., New York City time, on ______, 2002 (unless
another time shall be agreed to by you and the Company or unless postponed in
accordance with the provisions of Section 8 hereof). The time at which such
payment and delivery are actually made is hereinafter sometimes called "the time
of purchase." Electronic transfer of the Firm Shares shall be made to you at the
time of purchase in such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the time of purchase in such names and in such
denominations as you shall specify.
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Deliveries of the documents described in Section 6 hereof with
respect to the purchase of the Shares shall be made at the offices of Xxxxxx,
Xxxxx & Xxxxxxx LLP, One Oxford Centre, Pittsburgh, Pennsylvania, at 10 A.M.,
New York City time, on the date of the closing of the purchase of the Firm
Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) the Company has not received, and has no notice of, any
order of the Commission preventing or suspending the use of any
Preliminary Prospectus, or instituting proceedings for that purpose;
each Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Act; when the
Registration Statement becomes effective, the Registration Statement
and the Prospectus will comply in all material respects with the
provisions of the Act, the Registration Statement will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, not misleading, and the Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
all statutes and regulations that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement have been so described or filed; provided,
however, that the Company makes no warranty or representation with
respect to any statement contained in the Registration Statement or the
Prospectus in reliance upon and in conformity with information
concerning the Underwriters and furnished in writing by or on behalf of
any Underwriter through you to the Company expressly for use in the
Registration Statement or the Prospectus;
(b) the Company has not distributed any offering material in
connection with the offering or sale of the Shares other than the
Registration Statement, the Preliminary Prospectus, the Prospectus or
any other materials, if any, permitted by the Act;
(c) as of the date of this Agreement, the Company has an
authorized capitalization as set forth under the heading entitled
"Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and, as of the time of purchase
and the additional time of purchase, as the case may be, the Company
shall have an authorized capitalization as set forth under the heading
entitled "Pro forma as adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization"; all of the
issued and outstanding shares of capital stock, including Common Stock,
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable, have been issued in compliance with all
federal and state securities laws and were not issued in violation of
any preemptive right, resale right, right of first refusal or similar
right;
(d) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement;
(e) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership
or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to so qualify would not
reasonably be expected to have a material adverse effect on the
business, properties, financial condition or results of operation of
the Company and the Subsidiaries (as hereinafter defined) taken as a
whole (a "Material Adverse Effect"), and the Company is in compliance
in all material respects with the laws, orders, rules, regulations and
directives issued or administered by such jurisdictions; all of the
outstanding shares of capital stock of each of the corporations,
associations or other entities listed in Exhibit 21.1
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to the Registration Statement (collectively, the "Subsidiaries") have
been duly authorized and validly issued, are fully paid and
non-assessable and, except as set forth in the Registration Statement
and the Prospectus, are owned by the Company subject to no security
interest, other encumbrance or adverse claims; no options, warrants or
other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligation into shares of capital stock or
ownership interests in the Subsidiaries are outstanding; other than the
capital stock of the Subsidiaries, the Company does not own, directly
or indirectly, any shares of stock or any other equity or long-term
debt securities of any corporation or have any equity interest in any
firm, partnership, joint venture, association or other entity; complete
and correct copies of the charters and by-laws of the Company and the
Subsidiaries and all amendments thereto have been delivered to you, and
except as set forth in the exhibits to the Registration Statement no
changes therein will be made subsequent to the date hereof and prior to
the at the time of purchase and additional time of purchase; each
Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement; and each Subsidiary is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction
where the ownership or leasing of the properties or the conduct of its
business requires such qualification, except where the failure to so
qualify would not reasonably be expected to have a Material Adverse
Effect, and each of the Subsidiaries is in compliance in all material
respects with the laws, orders, rules, regulations and directives
issued or administered by such jurisdictions;
(f) except as set forth in the Registration Statement and the
Prospectus, neither the Company nor any of the Subsidiaries is in
breach of, or in default under (nor has any event occurred that with
notice, lapse of time, or both would result in any breach of, or
constitute a default under), its charter or by-laws or, except where
such breach or default would not reasonably be expected to have a
Material Adverse Effect, in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries
is a party or by which any of them or any of their properties is bound,
and the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, or result in
any breach of or constitute a default under (nor constitute any event
that with notice, lapse of time, or both would result in any breach of,
or constitute a default under), any provisions of the charter or
by-laws of the Company or any of the Subsidiaries or under any
provision of any license, indenture, mortgage, deed of trust, bank
loan, credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument, to which the Company or any
of the Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree, judgment
or order applicable to the Company or any of the Subsidiaries;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution
and delivery by the Underwriters, is a legal, valid and binding
agreement of the Company enforceable in accordance with its terms,
except (i) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally, (ii) that forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought and (iii) as rights to indemnity or contribution may be limited
by federal or state securities laws;
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(h) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and the Prospectus; the certificates for
the Shares will be in due and proper form; and the holders of the
Shares will not be subject to personal liability by reason of being
such holders;
(i) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable;
(j) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares or the consummation by the
Company of the transactions as contemplated hereby other than
registration of the Shares under the Act, which has been or will be
effected, and any necessary qualification or approval under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters and under the rules and
regulations of the NASD;
(k) except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any shares of Common Stock or
shares of any other capital stock or other equity interests of the
Company, (ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of
Common Stock or shares of any other capital stock or other equity
interests of the Company, and (iii) no person has the right to act as
an underwriter, or as a financial advisor to the Company, in connection
with the offer and sale of the Shares, in the case of each of the
foregoing clauses (i), (ii) and (iii), whether as a result of the
filing or effectiveness of the Registration Statement or the sale of
the Shares as contemplated thereby or otherwise; and except as set
forth in the Registration Statement and the Prospectus, no person has
the right, contractual or otherwise, to cause the Company to register
under the Act any shares of Common Stock or shares of any other capital
stock or other equity interests of the Company, or to include any such
shares or interests in the Registration Statement or the offering
contemplated thereby whether as a result of the filing or effectiveness
of the Registration Statement or the sale of the Shares as contemplated
thereby or otherwise, except for such rights as have been complied with
or waived;
(l) Ernst & Young LLP, whose report on the consolidated
financial statements of the Company and the Subsidiaries is filed with
the Commission as part of the Registration Statement and the
Prospectus, are independent public accountants as required by the Act;
(m) each of the Company and the Subsidiaries has all licenses,
authorizations, consents and approvals and has made all filings
required under any federal, state, local or foreign law, regulation or
rule and has obtained all authorizations, consents and approvals from
other persons, in order to conduct its respective business, except for
such licenses, authorizations, consents, approvals or filings, the
failure of which to obtain or make would not reasonably be expected to
have a Material Adverse Effect; and neither the Company nor any of the
Subsidiaries is in violation of, or in default under, any such license,
authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of the Subsidiaries, the effect of
which could reasonably be expected to have a Material Adverse Effect;
(n) all legal or governmental proceedings, contracts,
licenses, agreements, leases or documents of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement have been so
described or filed as required;
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(o) there are no actions, suits, claims, investigations or
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of the Subsidiaries or any of their respective
officers is a party or of which any of their respective properties is
subject at law or in equity, or before or by any federal, state, local
or foreign governmental or regulatory commission, board, body,
authority or agency that could result in a judgment, decree or order
that would reasonably be expected to have a Material Adverse Effect or
to prevent consummation of the transactions contemplated hereby;
(p) the audited consolidated financial statements of the
Company included in the Registration Statement and the Prospectus
present fairly in all material respects the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the
Company and the Subsidiaries for the periods specified and have been
prepared in compliance with the requirements of the Act and in
conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved; the other financial and
statistical data set forth in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent
with the financial statements and books and records of the Company; and
there are no financial statements (historical or pro forma) that are
required to be included in the Registration Statement and the
Prospectus that are not included as required;
(q) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change, or any development that is
likely to cause a material adverse change, in the business, properties
or assets described or referred to in the Registration Statement or the
results of operations, condition (financial or otherwise), business or
operations of the Company and the Subsidiaries taken as a whole, (ii)
any transaction that is material to the Company or the Subsidiaries,
(iii) any obligation, direct or contingent, incurred by the Company or
any of the Subsidiaries that is material to the Company and the
Subsidiaries taken as a whole, (iv) any change in the capital stock or
outstanding indebtedness of the Company or the Subsidiaries, or (v) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company; and neither the Company nor the
Subsidiaries has any material contingent obligation that is not
disclosed in the Registration Statement;
(r) the Company has obtained for the benefit of the
Underwriters an agreement (each a "Lock-Up Agreement"), substantially
in the form set forth as EXHIBIT A hereto or as modified with the
agreement of the Underwriters or their counsel, of each of its
directors and officers and certain holders of Common Stock, securities
convertible into or exercisable or exchangeable for Common Stock, and
warrants or other rights to purchase Common Stock or securities
convertible into or exercisable or exchangeable for Common Stock; and
the Company has taken all necessary actions under the Fifth Amended and
Restated Investors' Rights Agreement dated as of December 31, 2001, the
2000 Stock Incentive Plan, the 2002 Key Executive Stock Incentive Plan,
the 2002 Stock Incentive Plan and any other contract, agreement
(including a stock purchase agreement) or plan to which the Company is
a party or otherwise subject pursuant to which the Company has the
right to prohibit, restrict or otherwise limit transfers, pledges or
other dispositions of Common Stock, securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other
rights to purchase Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock (such investors' rights
agreement, stock incentive plans and other contracts, agreements and
plans are referred to herein collectively as the "Special Agreements"),
such that each other party thereto, each recipient of a stock option
thereunder, and each other person subject thereto, is prohibited,
restricted or otherwise limited, during the Lock-Up Period (as defined
below), from transferring, pledging or otherwise disposing of Common
Stock, securities convertible into or
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exercisable or exchangeable for Common Stock, or warrants or other
rights to purchase Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock.
(s) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended;
(t) all material tax returns required to be filed by the
Company and each of the Subsidiaries have been filed, other than those
filings being contested in good faith, and all taxes and other
assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax or penalties
applicable thereto, due or claimed to be due from such entities have
been paid, other than those being contested in good faith and for which
adequate reserves have been provided;
(u) the Company and each of the Subsidiaries maintains
insurance covering its properties, operations, personnel and businesses
as the Company deems adequate and as previously disclosed to the
Underwriters; such insurance insures against such losses and risks to
an extent that the Company reasonably believes to be adequate in
accordance with customary industry practice to protect the Company and
the Subsidiaries and their businesses; all such insurance is
outstanding and fully in force on the date hereof and will be
outstanding and duly in force at the time of purchase and additional
time of purchase, as the case may be;
(v) neither the Company nor any of the Subsidiaries has
sustained since December 31, 2001 any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree;
(w) the Company has not sent or received any communication
regarding termination of, or intent not to renew, any of the contracts
or agreements referred to or described in, or filed as an exhibit to,
the Registration Statement, and no such termination or non-renewal has
been threatened by the Company or any other party to any such contract
or agreement;
(x) the Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorization, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets, and (iii) access to assets is
permitted only in accordance with management's general or specific
authorization;
(y) all statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the
written consent to the use of such data from such sources to the extent
required;
(z) none of the Company, any of the Subsidiaries, and any
director, officer, affiliate or controlling person of the Company or
any of the Subsidiaries has taken, directly or indirectly, any action
designed to result, or that has constituted or might reasonably be
expected to cause or result, under the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder (collectively, the
"Exchange Act") or otherwise, in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Shares;
(aa) neither the Company, nor any of the Subsidiaries, nor to
the Company's knowledge after due inquiry, any employee or agent of the
Company or the Subsidiaries, has made any payment of
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funds of the Company or the Subsidiaries or received or retained any
funds in violation of any law, rule or regulation, which payment,
receipt or retention of funds is of a character required to be
disclosed in the Registration Statement or the Prospectus;
(bb) the Company and the Subsidiaries own, or have obtained
valid and enforceable licenses for, or other rights to use, the
inventions, patent applications, patents, trademarks (both registered
and unregistered), tradenames, copyrights and trade secrets described
in the Registration Statement and the Prospectus as being owned or
licensed by them, that the Company believes are necessary for the
conduct of the business of the Company and the Subsidiaries and which
the failure to own, license or have such rights could reasonably be
expected to have a Material Adverse Effect (collectively, "Intellectual
Property"); there are no third parties that have or, to the knowledge
of the Company, will be able to establish their rights to any
Intellectual Property, except for the ownership rights of the owners of
the Intellectual Property that is licensed to the Company; to the
knowledge of the Company, there is no infringement by third parties of
any Intellectual Property; there is no pending or, to the knowledge of
the Company, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any Intellectual Property,
and the Company is unaware of any facts that would form a reasonable
basis for any such claim; there is no pending or, to the knowledge of
the Company, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any Intellectual Property, and the
Company is unaware of any facts that would form a reasonable basis for
any such claim; except as disclosed in the letter to the Underwriters
dated _____, 2002, there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and
except as disclosed in the letter to the Underwriters dated _____,
2002, the Company is unaware of any facts that would form a reasonable
basis for any such claim; there is no patent or patent application that
contains claims that interfere with the issued or pending claims of any
of the Intellectual Property; and to the knowledge of the Company,
there is no prior art that may render any patent application owned by
the Company of the Intellectual Property unpatentable that has not been
disclosed to the U.S. Patent and Trademark Office;
(cc) neither the Company nor any of the Subsidiaries is
engaged in any unfair labor practice; except for matters that would not
reasonably be expected to have a Material Adverse Effect individually
or in the aggregate to the Company and the Subsidiaries, there is (i)
no unfair labor practice complaint pending or, to the knowledge of the
Company, threatened against the Company or any of the Subsidiaries
before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining
agreements is pending or threatened, (ii) no strike, labor dispute,
slowdown or stoppage pending or, to the knowledge of the Company,
threatened against the Company or any of the Subsidiaries and (iii) no
union representation dispute currently existing concerning the
employees of the Company or any of the Subsidiaries; and to the
knowledge of the management of the Company or any of the Subsidiaries,
(i) no union organizing activities are currently taking place
concerning the employees of the Company or any of the Subsidiaries and
(ii) there has been no violation of any federal, state or local law
relating to discrimination in the hiring, promotion or pay of
employees, of any applicable wage or hour laws, nor any provisions of
the Employee Retirement Income Security Act of 1974 and the rules and
regulations promulgated thereunder concerning the employees of the
Company and the Subsidiaries;
(dd) each of the Company and the Subsidiaries is in compliance
with any laws, statutes, ordinances, regulations, rules, decrees,
orders, judgments, consent orders, consent decrees or other binding
requirements and the common law relating to the protection of public
health or the environment, the release or threatened release of
hazardous material (including any material, substance, waste,
constituent, compound, pollutant or contaminant, including petroleum,
subject to
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regulation or that can give rise to liability under any such
requirements or laws, natural resources damages or occupational safety
and health (collectively, "Environmental Laws"); and each of the
Company and the Subsidiaries is in compliance with all material terms
and conditions of any required permits, licenses and authorizations and
is also in compliance with all other applicable limitations,
restrictions, conditions, standards, prohibitions, requirements and
obligations contained in the Environmental Laws; there are no past or
present events, conditions, activities, practices, actions, or plans
relating to the business operations or properties of the Company or any
of the Subsidiaries that could be reasonably expected to interfere with
or prevent compliance or continued compliance with the Environmental
Laws or that could be reasonably expected to give rise to any liability
based on or related to the Environmental Laws;
(ee) the Company and each of the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Prospectus as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances, other than encumbrances
reflected in the financial statements (or elsewhere in the Registration
Statement and Prospectus) or encumbrances that are not material in
amount and do not adversely affect the use made of such property by the
Company and the Subsidiaries; and all the property described in the
Registration Statement and the Prospectus as being held under lease by
the Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases;
(ff) the Shares have been approved for listing on The Nasdaq
National Market, subject only to notice of issuance; and
(gg) the Company has not offered, or caused the Underwriters
to offer, Shares to any person pursuant to the Directed Share Program
with the specific intent to influence unlawfully (i) a customer or
supplier of the Company or any of the Subsidiaries to alter the
customer's or supplier's level or type of business with the Company or
any of the Subsidiaries or (ii) a trade journalist or publication to
write or publish favorable information about the Company or any of the
Subsidiaries or an of their respective products or services.
In addition, any certificate signed by any officer of the Company and delivered
to the representatives of the Underwriters or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares; provided that the Company
shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as
many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may reasonably request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus within the nine-month period
-10-
referred to in Section 10(a)(3) of the Act in connection with the sale
of the Shares, the Company will prepare promptly upon request such
amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to
confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes
effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act, which the Company agrees to file in a timely manner under such
Rules;
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for,
or the entry of a stop order suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to make
every reasonable effort to obtain the lifting or removal of such order
as soon as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and to file no
such amendment or supplement to which you shall object in writing;
(e) subject to Section 4(o) hereof, to file promptly all
reports and any definitive proxy or information statement required to
be filed by the Company with the Commission in order to comply with the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the shares, and to promptly notify you of such
filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you promptly and, upon request, to each of
the other Underwriters for a period of five years from the date of this
Agreement (i) copies of any reports or other communications that the
Company shall send to its stockholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the
Commission, (iii) copies of documents or reports filed with any
national securities exchange on which any class of securities of the
Company is listed, and (iv) such other information as you may
reasonably request regarding the Company or the Subsidiaries;
(h) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a
Prospectus relating to the Shares is required to be delivered under the
Act that, in the judgment of the Company, would require the making of
any change in the Prospectus then being used so that the Prospectus
would not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are made,
not misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change and to furnish you a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the
Commission;
(i) to make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined
-11-
in Rule 158(c) of the Act) as soon as is reasonably practicable after
the termination of such twelve-month period but not later than
_________, 2003;
(j) to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and of cash flow
of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent
certified public accountants);
(k) to furnish to you four copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto) and sufficient
copies of the foregoing (other than exhibits) for distribution of a
copy to each of the other Underwriters;
(l) to furnish to you as early as practicable prior to the
time of purchase and the additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements,
if any, of the Company and the Subsidiaries that have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 6(b) hereof;
(m) to apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(n) to pay all reasonable costs, expenses, fees and taxes
(other than any transfer taxes and fees and disbursements of counsel
for the Underwriters except as set forth under Section 5 hereof and
(iii), (iv), (vi) and (vii) below) in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto,
and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment),
(ii) the registration, issue, sale and delivery of the Shares, (iii)
the producing, word processing and/or printing of this Agreement, any
Agreement Among Underwriters, any dealer agreements, any Powers of
Attorney and any closing documents (including compilations thereof) and
the reproduction and/or printing and furnishing of copies of each
thereof to the Underwriters and (except closing documents) to dealers
(including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under state laws and the determination
of their eligibility for investment under state law as aforesaid
(including the legal fees and filing fees and other disbursements of
counsel for the Underwriters) and the printing and furnishing of copies
of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (v) any qualification of the Shares for quotation on
The Nasdaq National Market and any registration thereof under the
Exchange Act, (vi) any filing for review of the public offering of the
Shares by the NASD, including the legal fees and filing fees and other
disbursements of counsel to the Underwriters, (vii) the Directed Share
Program, including the legal fees and filing fees and other
disbursements of counsel for the Underwriters, (viii) the costs and
expenses of the Company relating to presentations or meetings
undertaken in connection with the marketing of the offer and sale of
the Shares to prospective investors and the Representatives' sales
forces, including expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged with
the consent of the Company in connection with the road show
presentations, travel, lodging and other expenses incurred by the
officers of the Company any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (ix) the
performance of the Company's other obligations hereunder;
(o) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (e) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of
the Exchange Act;
-12-
(p) not to sell, offer or agree to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or other rights to purchase Common Stock
or any other securities of the Company that are substantially similar
to Common Stock for a period of 180 days after the date hereof (the
"Lock-Up Period"), without the prior written consent of UBS Warburg,
except for (i) the registration of the Shares and the sales to the
Underwriters pursuant to this Agreement, (ii) issuances of Common Stock
upon the exercise of options issued under the 1999 Stock Option Plan or
warrants disclosed as outstanding in the Registration Statement and the
Prospectus, (iii) the issuance of stock options not exercisable during
the Lock-Up Period pursuant to stock option plans described in the
Registration Statement and the Prospectus, and (iv) the registration on
Form S-8 of shares of Common Stock issuable under the 2002 Employee
Stock Purchase Plan, the 2000 Stock Incentive Plan, the 2002 Key
Executive Stock Incentive Plan and the 2002 Stock Incentive Plan;
(q) if, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the Company will endeavor to cause the
Registration Statement or such post-effective amendment to become
effective as soon as possible and will advise you promptly and, if
requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become
effective; and
(r) not to release or purport to release any person from any
Lock-Up Agreement without the prior written consent of UBS Warburg; not
to release or purport to release any person from any provision of the
Special Agreements relating to the Lock-Up Period without the prior
written consent of UBS Warburg; and to enter stop transfer instructions
with its transfer agent and registrar against the transfer of any
Common Stock subject to a Lock-Up Agreement or a Special Agreement, and
not to release or purport to release such transfer restrictions without
the prior written consent of UBS Warburg.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 8 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof and at the time of purchase (unless
previously waived) and at the additional time of purchase, as the case may be),
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion
of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Company, addressed to
the Underwriters, and dated the time of purchase or the additional time
of
-13-
purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form reasonably satisfactory to Xxxx and Xxxx
LLP, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware, with full corporate power and authority
to own, lease and operate its properties and conduct its
business as described in the Registration Statement and the
Prospectus, to execute and deliver this Agreement and to
issue, sell and deliver the Shares as herein contemplated;
(ii) each of the Subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation with full
corporate power and authority to own, lease and operate its
properties and to conduct its business;
(iii) the Company and the Subsidiaries are duly qualified or
licensed in the jurisdictions listed on SCHEDULE B hereto;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Shares have been duly authorized and, when issued and
delivered to and paid for by the Underwriters in accordance
with this Agreement, will be validly issued and will be fully
paid and non-assessable;
(vi) the Company has an authorized capitalization as set forth
in the Registration Statement and the Prospectus; the
outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid,
nonassessable and free of statutory (under the Delaware
General Corporation Law) and, to such counsel's knowledge,
contractual preemptive rights, resale rights, rights of first
refusal and similar rights; the Shares when issued will be
free of statutory and contractual preemptive rights; the
certificates for the Shares are in due and proper form under
the Delaware General Corporation Law;
(vii) all of the outstanding shares of capital stock of each
of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and, except as
otherwise stated in the Registration Statement, are owned by
the Company, in each case subject to no security interest,
other encumbrance or adverse claim, other than as disclosed in
the Registration Statement; to such counsel's knowledge, no
options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests
in the Subsidiaries are outstanding;
(viii) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof
contained in the section entitled "Description of capital
stock" in the Registration Statement and the Prospectus;
(ix) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial
and statistical data contained therein, as to which such
counsel need express no opinion) as of the effective date of
the Registration Statement comply as to form in all material
respects with the requirements of the Act;
-14-
(x) the Registration Statement has become effective under the
Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened
under the Act and any required filing of the Prospectus and
any supplement thereto pursuant to Rule 424 under the Act has
been made in the manner and within the time period required by
such Rule 424;
(xi) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares and
consummation by the Company of the transactions as
contemplated hereby other than registration of the Shares
under the Act and the Exchange Act (except such counsel need
express no opinion as to any necessary qualification under the
state securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters);
(xii) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not and will not
result in any breach of, or constitute a default under (nor
constitute any event that with notice, lapse of time, or both,
would result in any breach of, or constitute a default under),
any provisions of the charter or by-laws of the Company or any
of the Subsidiaries or under any provision of any agreement or
instrument filed as an exhibit to the Registration Statement,
or under any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the
Company or any of the Subsidiaries;
(xiii) to such counsel's knowledge, neither the Company nor
any of the Subsidiaries is in violation of its charter or
by-laws or is in breach of, or in default under (nor has any
event occurred that with notice, lapse of time, or both would
result in any breach of, or constitute a default under), any
agreement or instrument filed as an exhibit to the
Registration Statement to which the Company or any of the
Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected or under any
federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any
of the Subsidiaries;
(xiv) to such counsel's knowledge, there are no contracts,
licenses, agreements, leases or documents of a character that
are required to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus
that have not been so filed, summarized or described as
required;
(xv) to such counsel's knowledge, there are no actions, suits,
claims, investigations or proceedings pending, threatened or
contemplated to which the Company or any of the Subsidiaries
is subject or of which any of their respective properties is
subject at law or in equity or before or by any federal,
state, local or foreign governmental or regulatory commission,
board, body, authority or agency that are required to be
described in the Prospectus but are not so described as
required;
(xvi) the Company will not, upon consummation of the
transactions contemplated by this Agreement, be an "investment
company," or a "promoter" or "principal underwriter" for, a
"registered investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(xvii) such counsel has read the statements in the Prospectus
under the captions "Business - Legal Proceedings," "Management
- Employment and Other
-15-
Agreements," "Management - Stock Plans," "Related party
transactions," "Description of capital stock" and "Shares
eligible for future sale," and insofar as such statements
constitute summaries of legal matters, contracts, agreements,
documents or proceedings referred to therein, or refer to the
statements of law or legal conclusions, such statements are
accurate in all material respects and present fairly the
information purported to be shown; and
(xviii) no person has the right, pursuant to the terms of any
contract, agreement or other instrument described in or filed
as an exhibit to the Registration Statement or otherwise known
to such counsel to have any securities issued by the Company
and owned by them registered pursuant to the Act, included in
the Registration Statement or sold in the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the
transactions contemplated by this Agreement or other wise,
except for such rights as have been complied with or waived.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters, at which conferences the contents of the
Registration Statement and the Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as and to the extent stated in the first
clause of subparagraph (vi) ending with the word "Prospectus" and in
subparagraphs (viii) and (xviii) above), on the basis of the foregoing and the
information disclosed to us, but without independent verification (relying in
part, in any determination as to materiality, upon the officers and other
representatives of the Company), nothing has come to the attention of such
counsel that causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at all times up to and including
the time of purchase or additional time of purchase, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief with
respect to the financial statements, schedules, notes, or other financial,
statistical and accounting data included in the Registration Statement or the
Prospectus).
In rendering such opinion, such counsel may rely as to questions of fact upon
representations or certificates of officers of the Company and of government
officials. In addition, such counsel's opinion with respect to the Company's
ownership of all of the outstanding capital stock of the Subsidiaries set forth
in subparagraph (vii) above may be based on such counsel's review of the stock
records of the Subsidiaries.
(b) You shall have received from Ernst & Young LLP, letters
dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by UBS Warburg.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion
of Xxxx and Xxxx LLP, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, as to
the matters referred to
-16-
in subparagraphs (iv), (v), (viii) (with respect to the Shares only)
and (x) of paragraph (a) of this Section 6. In addition, such counsel
shall state that such counsel have participated in conferences with
officers and other representatives of the Company, counsel for the
Company, representatives of the independent public accountants of the
Company and representatives of the Underwriters at which the contents
of the Registration Statement and the Prospectus and related matters
were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
the Prospectus (except as to matters referred to with respect to the
Shares under subparagraph (viii) of paragraph (a) of this Section 6),
on the basis of the foregoing (relying as to materiality to a large
extent upon the opinions of officers and other representatives of the
Company), no facts have come to the attention of such counsel that lead
them to believe that (i) the Registration Statement and the Prospectus
do not comply as to form in all material respects with the requirements
of the Act, (ii) the Registration Statement or any amendment thereto at
the time such Registration Statement or amendment became effective
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) the Prospectus as of its
date or any supplement thereto as of its date contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that, with respect to
the statements made pursuant to clauses (i), (ii) and (iii), such
counsel need express no comment with respect to the financial
statements and schedules and other financial and statistical data
included in the Registration Statement or the Prospectus).
(d) No amendment or supplement to the Registration Statement
or the Prospectus shall be filed prior to the time the Registration
Statement becomes effective to which you object in writing.
(e) The Registration Statement shall become effective not
later than 5:30 P.M., New York City time, on the date of this Agreement
and, if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act, at or
before 5:30 P.M., New York City time, on the second full business day
after the date of this Agreement.
(f) Prior to and as of the time of purchase or the additional
time of purchase, as the case may be, (i) no stop order with respect to
the effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act, (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not have contained, and shall not
contain, an untrue statement of a material fact and shall not have
omitted, and shall not omit, to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (iii) the Prospectus and all amendments or supplements
thereto, or modifications thereof, if any, shall not have contained,
and shall not contain, an untrue statement of a material fact and shall
not have omitted, and shall not omit, to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made,
not misleading.
(g) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, (i) no material and unfavorable change or any development involving
a material adverse change, financial or otherwise (other than as
specifically identified in the Registration Statement and the
Prospectus), in the business, properties, financial condition, results
of operation or prospects of the Company and the Subsidiaries taken as
a whole shall occur or become known and (ii) no transaction that is
material and unfavorable to the Company shall have been entered into by
the Company or any of the Subsidiaries.
-17-
(h) The Company will, at the time of purchase or additional
time of purchase, as the case may be, deliver to you a certificate of
its President and Chief Executive Officer and its Chief Financial
Officer and Chief Operating Officer to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of such date, that the Company has
performed such of its obligations under this Agreement as are to be
performed at or before the time of purchase or the additional time of
purchase, as the case may be, and the conditions set forth in
paragraphs (f) and (g) of this Section 6 have been met.
(i) Each of the Lock-Up Agreements shall be in full force and
effect in accordance with its terms.
(j) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and the additional time of purchase, as the case may
be, as you may reasonably request.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) that has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statement
and the Prospectus, (x) there has been any material adverse change, financial or
otherwise (other than as specifically identified in the Registration Statement
and the Prospectus), in the operations, business, properties, financial
condition, results of operation or prospects of the Company and the Subsidiaries
taken as a whole, that would, in your judgment or in the judgment of such group
of Underwriters, make it impracticable to market the Shares, or (y) there shall
have occurred: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, American Stock Exchange, The Nasdaq
National Market or The Nasdaq SmallCap Market; (ii) a suspension or material
limitation in trading in the Company's securities on The Nasdaq National Market;
(iii) a general moratorium on commercial banking activities declared by Federal,
New York State or Pennsylvania authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war ;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v), in the judgment
of the Representatives, makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and the Prospectus.
If you or any group of Underwriters elects to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
-18-
8. Increase in Underwriters' Commitments. Subject to Sections 6 and 7,
if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares that all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
SCHEDULE A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in SCHEDULE A hereto.
If the aggregate number of Shares that the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Shares that
all Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Shares that the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
terminate without further act or deed and without any liability on the part of
the Company to any non-defaulting Underwriter and without any liability on the
part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person
who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) that, jointly or severally, any such Underwriter or any
such person may incur under the Act, the Exchange Act, the common law
or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus
(the term Prospectus for the purpose of this Section 9 being deemed to
include any Preliminary Prospectus, the Prospectus and the Prospectus
as amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact
required to be
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stated in either such Registration Statement or Prospectus or necessary
to make the statements made therein not misleading, except insofar as
any such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished
in writing by or on behalf of any Underwriter through you to the
Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based
upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such
information not misleading, (ii) any untrue statement or alleged untrue
statement made by the Company in Section 3 of this Agreement or the
failure by the Company to perform when and as required any agreement or
covenant contained herein, (iii) any untrue statement or alleged untrue
statement of any material fact contained in any audio or visual
materials provided by the Company or based upon written information
furnished by or on behalf of the Company including slides, videos,
films or tape recordings used in connection with the marketing of the
Shares, or (iv) the Directed Share Program, provided that the Company
shall not be responsible under this clause (iv) for any loss, damage,
expense, liability or claim that is finally judicially determined to
have resulted from the gross negligence or willful misconduct of the
Underwriters in conducting the Directed Share Program, provided,
however, that the indemnity agreement contained in this subsection (a)
with respect to any Preliminary Prospectus or amended Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the
person asserting any such loss, damage, expense, liability or claim
purchased the Shares that is the subject thereof if the Prospectus
corrected any such alleged untrue statement or omission and if such
Underwriter failed to send or give a copy of the Prospectus to such
person at or prior to the written confirmation of the sale of such
Shares to such person, unless the failure is the result of
noncompliance by the Company with Section 4(g) hereof.
If any action, suit or proceeding (each a "Proceeding") is
brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Company pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly notify the
Company in writing of the institution of such Proceeding and the
Company shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party
and payment of all fees and expenses; provided, however, that the
omission to so notify the Company shall not relieve the Company from
any liability that the Company may have to any Underwriter or any such
person or otherwise, except to the extent the Company shall not have
otherwise learned of such Proceeding and such omission results in the
forfeiture by the Company of substantial rights and defenses. Such
Underwriter or such person shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or of such person unless
the employment of such counsel shall have been authorized in writing by
the Company in connection with the defense of such Proceeding or the
Company shall not have, within a reasonable period of time in light of
the circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them
that are different from, additional to or in conflict with those
available to the Company (in which case the Company shall not have the
right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and
expenses shall be borne by the Company and paid as incurred (it being
understood, however, that the Company shall not be liable for the
expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties
to such Proceeding). The Company shall not be liable for any settlement
of any Proceeding effected without its written consent but if settled
with the written consent of the Company, the Company agrees to
indemnify and hold harmless any Underwriter and any such person from
and against any
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loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second sentence of
this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its
written consent if (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such Proceeding and does not
include an admission of fault, culpability or a failure to act, by or
on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, and any person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all
of the foregoing persons from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation)
that, jointly or severally, the Company or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished
in writing by or on behalf of such Underwriter through you to the
Company expressly for use with reference to such Underwriter in the
Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus
or necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company or such
person shall promptly notify such Underwriter in writing of the
institution of such Proceeding and such Underwriter shall assume the
defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all
fees and expenses; provided, however, that the omission to so notify
such Underwriter shall not relieve such Underwriter from any liability
that such Underwriter may have to the Company or any such person or
otherwise, except to the extent the Underwriter shall not have
otherwise learned of such Proceeding and such omission results in the
forfeiture by the Underwriter of substantial rights and defenses. The
Company or such person shall have the right to employ its own counsel
in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company or such person unless the employment of such
counsel shall have been authorized in writing by such Underwriter in
connection with the defense of such Proceeding or such Underwriter
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such
indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them that are different from or
additional to or in conflict with those available to such Underwriter
(in which case such Underwriter shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or
parties, but such Underwriter may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at
the expense of such Underwriter), in any of which events such fees and
expenses shall be
-21-
borne by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to
such Proceeding). No Underwriter shall be liable for any settlement of
any such Proceeding effected without the written consent of such
Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless the
Company and any such person from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing sentence, if
at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then
the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if
(i) such settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at
least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of
this Section 9 in respect of any losses, damages, expenses, liabilities
or claims referred to therein, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be
in the same respective proportions as the total proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, bear to the
aggregate public offering price of the Shares. The relative fault of
the Company on the one hand and of the Underwriters on the other shall
be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this
subsection shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(d) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in subsection (c) above. Notwithstanding the provisions of
this Section 9, no Underwriter shall be required to contribute any
-22-
amount in excess of the amount by which the total price at which the
Shares underwritten by such Underwriter and distributed to the public
were offered to the public exceeds the amount of any damage that such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting commitments and
not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Company contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Company, its
directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and
delivery of the Shares. The Company and each Underwriter agree promptly
to notify each other of the commencement of any Proceeding against it
and, in the case of the Company, against any of the Company's officers
or directors in connection with the issuance and sale of the Shares, or
in connection with the Registration Statement or the Prospectus.
10. Information Furnished by the Underwriters. The statements set forth
in the last paragraph on the cover page of the Prospectus and the statements set
forth in the fifth, seventh, tenth and eleventh paragraphs under the caption
"Underwriting" in the Prospectus constitute the only information furnished by or
on behalf of the Underwriters as such information is referred to in Sections 3
and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at Printcafe
Software, Inc., Forty 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
President and Chief Executive Officer.
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement (a "Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement. The term
"including" as used in this Agreement shall not be construed so as to exclude
any other thing not referred to or described.
13. Submission to Jurisdiction. Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and each of the Company
and each Underwriter consents to the jurisdiction of such courts and personal
service with respect thereto. Each of the Company and each Underwriter hereby
consents to personal jurisdiction, service and venue in any court in which any
Claim arising out of or in any way relating to this Agreement is brought by any
third party against any indemnified party. Each of the Company and each
Underwriter (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders and affiliates) waives all right to trial by jury in
any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in
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any way arising out of or relating to this Agreement. Each of the Company and
each Underwriter agrees that a final judgment in any such action, proceeding or
counterclaim brought in any such court shall be conclusive and binding upon each
of the Company and each Underwriter and may be enforced in any other courts in
the jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
14. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company and to the
extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in one or
more counterparts that together shall constitute one and the same agreement
among the parties.
16. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
PRINTCAFE SOFTWARE, INC.
By:
------------------------------
Title:
Accepted and agreed to as of the date first
above written, on behalf of themselves and
the other several Underwriters named in
SCHEDULE A hereto
UBS WARBURG LLC
XXXXXXXXX XXXXXXXX, INC.
U.S. BANCORP XXXXX XXXXXXX INC.
MCDONALD INVESTMENTS INC.
By: UBS Warburg LLC
By:
----------------------------------
Title:
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SHARES
UBS Warburg LLC............................................... ___
U.S. Bancorp Xxxxx Xxxxxxx Inc................................ ___
Xxxxxxxxx Xxxxxxxx, Inc....................................... ___
McDonald Investments Inc...................................... ___
-----------
Total.................................................... 7,500,000
===========
SCHEDULE B
EXHIBIT A
LOCK-UP AGREEMENT
UBS WARBURG LLC
As Lead Representative of the several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Printcafe Software, Inc.
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the
underwriting agreement (the "Underwriting Agreement") proposed to be entered
into by Printcafe Software, Inc. (the "Company") and you, as lead representative
of the several underwriters to be named therein, with respect to a public
offering (the "Offering") of common stock, par value $0.0001 per share, of the
Company (the "Common Stock").
In order to induce the several underwriters to enter into the
Underwriting Agreement, the undersigned agrees that, during the period
commencing on the date hereof and ending 180 days after the date of the final
prospectus relating to the Offering, the undersigned will not, without the prior
written consent of UBS Warburg LLC:
(i) sell, offer to sell, contract to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of, directly or indirectly, contract
to dispose of, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission (the "Commission") in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder with respect to, any Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock (including in each such case
any Common Stock or any such securities, warrants or other rights that may be
deemed to be beneficially owned by the undersigned in accordance with the rules
and regulations of the Commission promulgated under the Securities Act of 1933,
as amended),
(ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of beneficial
ownership of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock, whether any such transaction is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise, or
(iii) publicly announce an intention to effect any transaction
specified in clause (i) or (ii).
The foregoing sentence shall not apply to any bona fide gift by the undersigned
or any disposition to a trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that each gift
recipient or trust agrees in writing to be bound by the terms of this Lock-Up
Agreement and confirms that it has been in compliance with the terms of this
Lock-Up Agreement since the date hereof. For the purposes of the preceding
sentence, "immediate family" shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin. The undersigned also
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agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of the undersigned's
Common Stock except in compliance with the foregoing restrictions.
In addition, the undersigned hereby waives any rights the undersigned
may have to require registration of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock in connection with the
filing of a registration statement relating to the Offering. The undersigned
further agrees that, during the period commencing on the date hereof and ending
180 days after the date of the final prospectus relating to the Offering, the
undersigned will not, without the prior written consent of UBS Warburg LLC, make
any demand for, or exercise any right with respect to, the registration of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock.
If (i) the Company notifies you in writing that it does not intend to
proceed with the Offering, (ii) the registration statement filed with the
Commission with respect to the Offering is withdrawn prior to any sale of Common
Stock registered thereunder or (iii) for any reason the Underwriting Agreement
shall be terminated prior to the time of purchase (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder. The undersigned
understands that this Lock-Up Agreement is irrevocable and shall be binding upon
the undersigned's heirs, legal representatives, successors and assigns.
Yours very truly,
Dated: , 2002
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(Signature)
Name and address (please print or type):
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