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EXHIBIT 1.1
[NUMBER OF SHARES]
OPENSITE TECHNOLOGIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
, 1999
XX XXXXX SECURITIES CORPORATION
SOUNDVIEW TECHNOLOGY GROUP, INC.
WACHOVIA SECURITIES, INC.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
As Representatives of the several Underwriters
c/o XX Xxxxx Securities Corporation
Xxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTORY. OpenSite Technologies, Inc., a Delaware corporation
(the "Company"), proposes to sell, pursuant to the terms of this Agreement, to
the several underwriters named in Schedule A hereto (the "Underwriters," or,
each, an "Underwriter"), an aggregate of ____ shares of common stock, par value
$0.01 per share (the "Common Stock"), of the Company. The aggregate of ____
shares so proposed to be sold is hereinafter referred to as the "Firm Stock."
The Company also proposes to sell to the Underwriters, upon the terms and
conditions set forth in Section 3 hereof, up to an additional ______ shares of
the Common Stock (the "Optional Stock"). The Firm Stock and the Optional Stock
that the Underwriters elect to purchase pursuant to Section 3 hereof are
hereinafter collectively referred to as the "Stock." XX Xxxxx Securities
Corporation ("XX Xxxxx"), SoundView Technology Group, Inc.,Wachovia Securities,
Inc. and The Xxxxxxxx-Xxxxxxxx Company, LLC are acting as representatives of the
several Underwriters and in such capacity are hereinafter referred to as the
"Representatives."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-79629)
in respect of the Stock has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; no other document with respect to such registration statement has
heretofore been filed with the Commission; and no stop order suspending
the effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission; a second registration statement on Form S-1 with respect to
the stock (i) may also be prepared by the Company in conformity with
the requirements of the Securities Act and the rules and regulations of
the Commission thereunder and (ii) if to be so prepared, will be filed
with the Commission under the Securities Act pursuant to Rule 462(b) of
the
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rules and regulations on [the date hereof] (each prospectus included in
any such registration statement, or amendments thereof, before it
became effective under the Securities Act and any prospectus filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Securities Act of 1933, as amended (the
"Securities Act"), is hereinafter called a "Preliminary Prospectus";
the first registration statement referred to in this Section 2(a), as
amended at its Effective Time (as defined below) is hereinafter called
the "Primary Registration Statement"; the second registration
statement, if any, referred to in this Section 2(a), as filed with the
Commission is hereinafter called the "Rule 462(b) Registration
Statement", and "Registration Statements" means both the Primary
Registration Statement and any Rule 462(b) Registration Statement,
including in each case all exhibits thereto and including in each case
the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Securities Act in
accordance with Section 4(a) hereof and deemed by virtue of Rule 430A
under the Securities Act to be part of the Registration Statements, as
of the Effective Time of the Primary Registration Statement pursuant to
paragraph (b) of Rule 430A under the Securities Act; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Securities Act, is hereinafter called the "Prospectus." "Effective
Time" means (i) with respect to the Primary Registration Statement, the
date and the time it or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission and (ii) with
respect to the Rule 462(b) Registration Statement, the date and time as
of which it is filed with the Commission. "Effective Date" means with
respect to both the Primary Registration Statement and the Rule 462(b)
Registration Statement, the date of each of their respective Effective
Times). No document has been or will be prepared or distributed in
reliance on Rule 434 under the Securities Act. No order preventing or
suspending the use of any Preliminary Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the
Securities Act and the rules and regulations of the Commission
thereunder, and did 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 the light of the
circumstances under which they were made, not misleading; provided,
however, that the foregoing representation and warranty shall not apply
to information contained in or omitted from any Preliminary Prospectus
in reliance upon, and in conformity with, written information furnished
to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein.
(b) The Primary Registration Statement conforms (and the Rule
462(b) Registration Statement, if any, the Prospectus and any further
amendments or supplements to the Registration Statements or the
Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform) in all material respects
to the requirements of the Securities Act and the rules and regulations
of the Commission thereunder and do not and will not, as of the
applicable effective date (as to the Registration Statements and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing
representation and warranty shall not apply to information contained in
or omitted from the Registration Statements or the Prospectus or any
such amendment or supplement thereto in reliance
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upon, and in conformity with, written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein.
(c) Each of the Company and its subsidiaries (as defined in
Section 15) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification and has all power and authority necessary to own or hold
its properties and to conduct its business as described in the
Prospectus, except where the failure to so qualify or have such power
or authority would not have, singularly or in the aggregate, a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries,
taken as a whole, or prevent or adversely affect in any material
respect the ability of the Company to perform its obligations under
this Agreement (a "Material Adverse Effect"). Except for Open Site
Europe Limited ("OpenSite Europe"), the Company does not own or
control, directly or indirectly, any interest or investment in any
corporation, partnership, association or other form of business entity.
(d) This Agreement has been duly authorized executed and
delivered by the Company.
(e) The Stock to be issued and sold by the Company to the
Underwriters hereunder has been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable and free of
any preemptive or similar rights and will conform, in all material
respects, to the description thereof contained in the Prospectus.
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform, in all material respects, to the
description thereof contained in the Prospectus.
(g) All the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and, except to the extent set forth in
the Prospectus, are owned by the Company directly or indirectly through
one or more wholly-owned subsidiaries, free and clear of any claim,
lien, encumbrance, security interest, restriction upon voting or any
other claim of any third party.
(h) The execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject and which is, singularly or in the aggregate,
material to the Company and its subsidiaries, taken as a whole, nor
will such actions result in any violation of the provisions of the
charter or by-laws of the Company
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or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets (except for statutes, rules, orders or
regulations the violation of which would not, singularly or in the
aggregate, have a Material Adverse Effect; except for (i) the
registration of the Stock under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and (ii) such
consents, approvals, authorizations, registrations or qualifications as
may be required under applicable state securities laws in connection
with the purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the Company
and the consummation of the transactions contemplated hereby, except
for any such consents, approvals, authorizations, orders, filings or
registrations the lack of which would not, singularly or in the
aggregate, have a Material Adverse Effect.
(i) PriceWaterhouseCoopers LLP, who have expressed their
opinions on the audited financial statements included in the
Registration Statements and the Prospectus are independent public
accountants with respect to the Company and its subsidiaries as
required by the Securities Act and the rules and regulations of the
Commission thereunder.
(j) The financial statements, together with the related notes,
included in the Registration Statements and the Prospectus fairly
present in all material respects the financial position and results of
operations and changes in financial position of the Company and its
consolidated subsidiaries at the respective dates and for the
respective periods therein specified. Such statements and related notes
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis except as may be set forth in
the Prospectus.
(k) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, 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, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, neither the
Company nor any of its subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any transaction, not
in the ordinary course of business, which are material to the Company
and its subsidiaries taken as a whole, and there has not been any
change in the capital stock or short- or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(l) Except as set forth in the Prospectus, there is no legal
or governmental proceeding pending to which the Company or any of its
subsidiaries is a party or to which any property or assets of the
Company or any of its subsidiaries is subject which, singularly or in
the aggregate, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to
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have a Material Adverse Effect; and to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(m) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any respect,
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its property or assets is subject or (iii) is in violation in
any respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject,
except in the case of clauses (ii) and (iii) for any defaults or
violations which, singularly or in the aggregate, would not have a
Material Adverse Effect.
(n) Each of the Company and its subsidiaries possesses all
licenses, certificates, authorizations and permits issued by, and has
made all declarations and filings with, the appropriate state, federal
and foreign regulatory agencies and bodies which are necessary for the
ownership of its properties and the conduct of its business as
described in the Prospectus, except where any failures to possess or
make the same, singularly or in the aggregate, would not have a
Material Adverse Effect; and the Company has not received notification
of any revocation or modification of any such license, authorization or
permit and has no reason to believe that any such license, certificate,
authorization or permit will not be renewed.
(o) Neither the Company nor any of its subsidiaries is and,
after giving effect to the offering of the Stock and the application of
the proceeds thereof as described in the Prospectus will become, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission
thereunder.
(p) None of the Company nor any of its subsidiaries, nor any
of their respective officers, directors or affiliates has taken or will
take, directly or indirectly, any action designed or intended to
stabilize or manipulate the price of any security of the Company, or
which caused or resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation of the
price of any security of the Company.
(q) Each of the Company and its subsidiaries owns or possesses
the right to use all patents, trademarks, trademark registrations,
service marks, service xxxx registrations, trade names, copyrights,
licenses, inventions, trade secrets and rights described in the
Prospectus as being owned or used by it for the conduct of its
business; and neither the Company nor any of its subsidiaries is aware
of any claim to the contrary or any challenge by any other person to
the rights of the Company or any of its subsidiaries with respect to
the foregoing; to the Company's knowledge, neither the business of the
Company nor any of its subsidiaries as now conducted and as proposed to
be conducted (as described in the Registration Statement) does and will
infringe or conflict with any patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses or other intellectual
property or franchise right of any person; and no claim has been made
against the Company or any of its subsidiaries alleging the
infringement by the Company or any of its
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subsidiaries of any patent, trademark, service xxxx, trade name,
copyright, trade secret, license, other intellectual property right or
franchise right of any person.
(r) Each of the Company and its subsidiaries has good and
marketable title in fee simple to, or has valid rights to lease or
otherwise use, all items of real or personal property which are
material to the business of the Company and its subsidiaries, taken as
a whole, in each case free and clear of all liens, encumbrances, claims
and defects that could reasonably be expected to result in a Material
Adverse Effect.
(s) No labor disturbance by the employees of each of the
Company and its subsidiaries exists or, to the Company's knowledge, is
imminent which could reasonably be expected to have a Material Adverse
Effect. The Chief Executive Officer of the Company is not aware that
any key employee plans or significant group of employees of the Company
or any of its subsidiaries plan, to terminate employment with the
Company or any of its subsidiaries.
(t) Each employee benefit plan, agreement, policy or other
arrangement, under which any current or former employee or director of
the Company or any of its subsidiaries has any present or future right
to benefits or under which the Company or any of its subsidiaries has
any present or future liability (the "Company Plans") has been
established and administered in all material respects in accordance
with its terms and in compliance in all material respects with the
applicable provisions of Employee Retirement Income Security Act of
1974, as amended ("ERISA"), the Internal Revenue Code of 1986, as
amended (the "Code") and other applicable laws, rules and regulations;
each Company Plan which is intended to be qualified within the meaning
of Code section 401(a) is so qualified and has received a favorable
determination letter as to its qualification, and nothing has occurred,
whether by action or failure to act, that could reasonably be expected
to cause the loss of such qualification; no "reportable event" (as such
term is defined in ERISA section 4043) or "prohibited transaction" (as
such term is defined in ERISA section 406 and Code section 4975) or
"accumulated funding deficiency" (as such term is defined in ERISA
section 302 and Code section 412 (whether or not waived)) has occurred
with respect to any Company Plan, which in the aggregate could
reasonably be expected to have a Material Adverse Effect; the Company
has not incurred and does not expect to incur any liability under Title
IV of ERISA (other than for contributions or premium payments in the
ordinary course), which liability in the aggregate could reasonably be
expected to have a Material Adverse Effect.
(u) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of
any kind of toxic or other wastes or other hazardous substances by, due
to, or caused by the Company or any of its subsidiaries (or, to the
Company's knowledge, any other entity for whose acts or omissions the
Company or any of its subsidiaries is or may be liable) upon any of the
property now or previously owned or leased by the Company or any of its
subsidiaries, or upon any other property, in violation of any statute
or any ordinance, rule, regulation, order, judgment, decree or permit
or which would, under any statute or any ordinance, rule (including
rule of common law), regulation, order, judgment, decree or permit,
give rise to any liability, except for any violation or liability which
would not have, singularly or in the aggregate with all such violations
and liabilities, a Material Adverse Effect; there has been no disposal,
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discharge, emission or other release of any kind onto such property or
into the environment surrounding such property of any toxic or other
wastes or other hazardous substances with respect to which the Company
or any of its subsidiaries have knowledge, except for any such
disposal, discharge, emission, or other release of any kind which would
not have, singularly or in the aggregate with all such discharges and
other releases, a Material Adverse Effect.
(v) Each of the Company and its subsidiaries (i) has filed all
necessary federal, state and foreign income and franchise tax returns,
(ii) has paid all federal, state, local and foreign taxes due and
payable for which it is liable and (iii) does not have any tax
deficiency or claims outstanding or assessed or, to the Company's
knowledge, proposed against it which could reasonably be expected to
have a Material Adverse Effect.
(w) Each of the Company and its subsidiaries carries, or is
covered by, insurance in such amounts and covering such risks that the
Company reasonably believes is adequate for the conduct of its business
and the value of its properties and as is customary for companies
engaged in similar businesses in similar industries.
(x) Each of the Company and its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(y) The minute books of each of the Company and its
subsidiaries (or duplicates thereof) have been made available to the
Underwriters and counsel for the Underwriters, and such books (or
duplicates) (i) contain a complete summary in all material respects of
all meetings and actions of the directors and shareholders of each of
the Company and its subsidiaries since the time of its incorporation
through the date of the latest meeting and action and (ii) accurately
reflect in all material respects all actions referred to in such
minutes.
(z) There is no franchise, lease, contract, agreement or
document required by the Securities Act or by the rules and regulations
of the Commission thereunder to be described in the Prospectus or to be
filed as an exhibit to either of the Registration Statements which has
not been so described or filed as required; and all descriptions of any
such franchises, leases, contracts, agreements or documents contained
in the Prospectus are fair and accurate summary descriptions of such
documents in all material respects.
(aa) No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any of its subsidiaries on the other hand, which is required
to be described in the Prospectus and which is not so described.
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(bb) No person or entity has the right to require that shares
of Common Stock or other securities of the Company be registered as
part of the Registration Statements because of the filing or
effectiveness of the Registration Statements or otherwise, except for
persons and entities who have expressly waived such right or who have
been given proper notice and have failed to exercise such right within
the time or times required under the terms and conditions of such
right.
(cc) Neither the Company nor any of its subsidiaries is a
party to any contract, agreement or understanding with any person that
would give rise to a valid claim against the Company or any of its
subsidiaries or the Underwriters for a brokerage commission, finder's
fee or like payment in connection with the offering and sale of the
Stock.
(dd) No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act)
contained in the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(ee) Each of the Company and its subsidiaries has reviewed its
operations and that of any third parties with which each of the Company
and its subsidiaries has a material relationship to evaluate the extent
to which the business or operations of each of the Company and its
subsidiaries will be affected by the Year 2000 Problem. As a result of
such review, each of the Company and its subsidiaries has no reason to
believe, and does not believe, that the Year 2000 Problem will have a
Material Adverse Effect. The "Year 2000 Problem" as used herein means
any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
(ff) The Stock has been approved for listing subject to notice
of issuance on the Nasdaq National Market.
3. PURCHASE SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, that number of shares of Firm Stock set forth opposite the
name of such Underwriter in Schedule A hereto.
The purchase price per share to be paid by the Underwriters to the
Company for the Stock will be $_____ per share (the "Purchase Price").
The Company hereby confirms its engagement of Soundview Technology
Group, Inc. as, and Soundview Technology Group, Inc. hereby confirms its
agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of Rule 2720 of the Conduct Rules of the
National Association of Securities Dealers, Inc. with respect to the offering
and sale of the Stock. SoundView
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Technology Group, Inc., in its capacity as qualified independent underwriter and
not otherwise, is referred to herein as the "QIU". The Company and SoundView
Technology Group, Inc. hereby agree that $10,000 of the underwriting discounts
to be received by SoundView Technology Group, Inc. pursuant to this Section 3
will be compensation for its services as QIU hereunder.
The Company will deliver the Firm Stock to the Representatives for the
respective accounts of the several Underwriters in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York City time, on the second full business day preceding the
First Closing Date (as defined below) against payment of the aggregate Purchase
Price therefor by wire transfer to an account at a bank acceptable to XX Xxxxx,
payable to the order of the Company, at the offices of Xxxxxxx Xxxxxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligations of each Underwriter hereunder. The
time and date of the delivery and closing shall be at 10:00 A.M., New York City
time, on , 1999, in accordance with Rule 15c6-1 of the Exchange Act. The time
and date of such payment and delivery are herein referred to as the "First
Closing Date." The First Closing Date and the location of delivery of, and the
form of payment for, the Firm Stock may be varied by agreement between the
Company and XX Xxxxx.
The Company shall make the certificates for the Firm Stock available to
the Representatives for examination on behalf of the Underwriters in New York
City, New York not later than 10:00 A.M., New York City time, on the business
day preceding the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Stock. The price
per share to be paid for the Optional Stock shall be the Purchase Price. Such
shares of Optional Stock shall be purchased from the Company for the account of
each Underwriter in the same proportion as the number of shares of Firm Stock
set forth opposite such Underwriter's name bears to the total number of shares
of Firm Stock (subject to adjustment by XX Xxxxx to eliminate fractions). The
option granted hereby may be exercised as to all or any part of the Optional
Stock at any time, and from time to time, not more than thirty (30) days
subsequent to the date of this Agreement. No Optional Stock shall be sold and
delivered unless the Firm Stock previously has been, or simultaneously is, sold
and delivered. The right to purchase the Optional Stock or any portion thereof
may be surrendered and terminated at any time upon notice by XX Xxxxx to the
Company.
The option granted hereby may be exercised by written notice being
given to the Company by XX Xxxxx setting forth the number of shares of the
Optional Stock to be purchased by the Underwriters and the date and time for
delivery of and payment for the Optional Stock. Each date and time for delivery
of and payment for the Optional Stock (which may be the First Closing Date, but
not earlier) is herein called an "Option Closing Date" and shall in no event be
earlier than two (2) business days nor later than five (5) business days after
written notice is given. The Option Closing Date(s) and the First Closing Date
are herein called the "Closing Dates."
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The Company will deliver the Optional Stock to the Representatives for
the respective accounts of the several Underwriters in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York City time, on the second full business day preceding the
applicable Option Closing Date against payment of the aggregate Purchase Price
therefor in federal (same day) funds by certified or official bank check or
checks or wire transfer to an account at a bank acceptable to XX Xxxxx, payable
to the order of the Company, at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder. The Option Closing
Date and the location of delivery of, and the form of payment for, the Optional
Stock may be varied by agreement among the Company and XX Xxxxx.
The Company shall make the certificates for the Optional Stock
available to the Representatives for examination on behalf of the Underwriters
in New York City, New York not later than 10:00 A.M., New York City time, on the
business day preceding the applicable Option Closing Date.
The several Underwriters propose to offer the Stock for sale upon the
terms and conditions set forth in the Prospectus; provided, however, that no
Stock registered pursuant to the Rule 462(b) Registration Statement, if any,
shall be offered prior to the Effective Time thereof.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration
Statement, if necessary, in a form approved by the Representatives and
to file such Rule 462(b) Registration Statement with the Commission on
[the date hereof]; prepare the Prospectus in a form approved by the
Representatives and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the second business day following the
execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Securities
Act; make no further amendment or any supplement to the Registration
Statements or to the Prospectus to which the Representatives shall
reasonably object by notice to the Company after a reasonable period to
review; advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to either Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Stock for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statements or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any
such qualification, use promptly its reasonable best efforts to obtain
its withdrawal.
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(b) If at any time prior to the expiration of nine months
after the Effective Time of the Primary Registration Statement when a
prospectus relating to the Stock is required to be delivered any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact, or
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Securities Act, the Company will promptly notify the
Representatives thereof and upon their request will prepare an amended
or supplemented Prospectus which will correct such statement or
omission or effect such compliance. The Company will furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of such amended or supplemented Prospectus; and in case any Underwriter
is required to deliver a prospectus relating to the Stock nine months
or more after the Effective Time of the Primary Registration Statement,
the Company upon the request of the Representatives and at the expense
of such Underwriter will prepare promptly an amended or supplemented
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Securities Act.
(c) The Company will furnish promptly to each of the
Representatives and to counsel for the Underwriters a signed copy of
each of the Registration Statements as originally filed with the
Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(d) The Company will deliver promptly to the Representatives
in New York City such number of the following documents as the
Representatives shall reasonably request: (i) conformed copies of each
of the Registration Statements as originally filed with the Commission
and each amendment thereto, (ii) each Preliminary Prospectus and (iii)
the Prospectus (not later than 10:00 A.M., New York City time, of the
business day following the execution and delivery of this Agreement)
and any amended or supplemented Prospectus (not later than 10:00 A.M.,
New York City time, on the business day following the date of such
amendment or supplement).
(e) The Company will make generally available to its
shareholders as soon as practicable, but in any event not later than
eighteen months after the Effective Date of the Primary Registration
Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement of the Company and its subsidiaries (which need not
be audited), complying with Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158).
(f) The Company will promptly take from time to time such
actions as the Representatives may reasonably request to qualify the
Stock for offering and sale under the securities or Blue Sky laws of
such jurisdictions as the Representatives may designate and to continue
such qualifications in effect for so long as required for the
distribution of the Stock; provided that the Company and its
subsidiaries shall not be obligated to qualify as foreign corporations
in any jurisdiction in which they are not so qualified or to file a
general consent to service of process in any jurisdiction.
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(g) During the period of five years from the Effective Date of
the Primary Registration Statement, the Company will deliver to the
Representatives and, upon request, to each of the other Underwriters,
(i) as soon as they are available, copies of all reports or other
communications furnished to shareholders and (ii) as soon as they are
available, copies of any reports and financial statements furnished or
filed with the Commission pursuant to the Exchange Act or any national
securities exchange or automatic quotation system on which the Stock is
listed or quoted.
(h) The Company will not: (1) directly or indirectly, offer,
sell, assign, transfer, encumber, pledge, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend or otherwise
dispose of, other than by operation of law, any shares of Common Stock
or any securities convertible into or exercisable or exchangeable for
Common Stock (including without limitation, Common Stock which may be
deemed to be beneficially owned in accordance with the rules and
regulations promulgated under the Securities Act); or (2) enter into
any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of Common Stock
whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or such other securities, in
cash or otherwise, for a period of 180 days following the date of the
Prospectus without the prior written consent of XX Xxxxx, other than
(i) the Company's sale of the Stock hereunder, (ii) the grant of
options or the issuance of shares pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans
existing on the date hereof or pursuant to currently outstanding
options, warrants or rights, (iii) the Company's issuance of shares of
Common Stock upon the conversion of the outstanding shares of the
Company's Preferred Stock in connection with the consummation of the
transactions contemplated hereby and by the Prospectus, or (iv) the
Company's issuance of shares of Common Stock in connection with the
acquisition of, or joint venture or similar transaction with, another
business or entity, provided that the terms of such acquisition or
joint venture prohibit the resale or other disposition of such shares
for the period ending 180 days after the date hereof; the Company will
cause each officer, director, shareholder and optionholder listed in
Schedule B hereto to furnish to the Representatives, prior to the First
Closing Date, a letter, substantially in the form of Exhibit I hereto,
pursuant to which each such person shall agree not to engage in the
activities set forth in (1) and (2) above for a period of 180 days
following the date of the Prospectus, without the prior written consent
of XX Xxxxx.
(i) The Company promptly will supply the Representatives with
copies of all correspondence to and from, and all documents issued to
and by, the Commission in connection with the registration of the Stock
under the Securities Act.
(j) Prior to each of the Closing Dates, the Company will
furnish to the Representatives, as soon as they have been prepared,
copies of any unaudited interim consolidated financial statements of
the Company for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statements and the
Prospectus.
(k) Prior to the last possible date which could be an Option
Closing Date, the Company will not issue any press release or other
communication, directly or indirectly, or hold any press conference
with respect to the Company, its condition, financial or otherwise, or
earnings, business
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affairs or business prospects (except for routine oral marketing
communications in the ordinary course of business and consistent with
the past practices of the Company and of which the Representatives are
notified), without the prior written consent of the Representatives,
unless in the judgment of the Company and its counsel, and after
notification to the Representatives, such press release or
communication is required by law.
(l) In connection with the offering of the Stock, until XX
Xxxxx shall have notified the Company of the completion of the resale
of the Stock, the Company will not, and will cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not to,
either alone or with one or more other persons, bid for or purchase,
for any account in which it or any of its affiliated purchasers has a
beneficial interest, any Stock, or attempt to induce any person to
purchase any Stock; and not to, and to cause its affiliated purchasers
not to, make bids or purchase for the purpose of creating actual, or
apparent, active trading in or of raising the price of the Stock.
(m) [The Company will not take any action prior to the last
possible date which could be an Option Closing Date which would require
the Prospectus to be amended or supplemented pursuant to Section 4(b).]
(n) The Company will apply the net proceeds from the sale of
the Stock as set forth in the Prospectus under the heading "Use of
Proceeds."
5. PAYMENT OF EXPENSES. The Company agrees with each Underwriter to pay
(i) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Stock and any taxes payable in that connection; (ii) the costs
incident to the registration of the Stock under the Securities Act and the
Exchange Act; (iii) the costs incident to the preparation, printing and
distribution of the Registration Statements, Preliminary Prospectus, Prospectus
and any amendments, supplements and exhibits thereto; (iv) the costs of
printing, reproducing and distributing by mail, telex or other means of
communications the Agreement Among Underwriters among the Representatives and
the Underwriters, the Master Selected Dealers' Agreement, the Underwriters'
Questionnaire and this Agreement; (v) the fees and expenses (including related
fees and expenses of counsel for the Underwriters) incurred in connection with
filings made with the National Association of Securities Dealers, Inc.; (vi) any
applicable listing or other fees; (vii) the fees and expenses of qualifying the
Stock under the securities laws of the several jurisdictions as provided in
Section 4(f) and of preparing, printing and distributing Blue Sky Memoranda and
Legal Investment Surveys (including related fees and expenses of counsel to the
Underwriters); (viii) all fees and expenses of the registrar and transfer agent
of the Stock; and (ix) all other costs and expenses incident to the performance
of the obligations of the Company under this Agreement (including, without
limitation, the fees and expenses of the Company's counsel and the Company's
independent accountants); provided that, except as otherwise provided in this
Section 5 and in Section 10, the Underwriters shall pay their own costs and
expenses, including the fees and expenses of their counsel, any transfer taxes
on the Stock which they may sell and the expenses of advertising any offering of
the Stock made by the Underwriters.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations
of the several Underwriters hereunder, as to the shares of Stock to be delivered
at each Closing Date, are subject to the accuracy, when made and at and as of
such Closing Date, of the representations and warranties of the
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Company contained herein, to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to each of the following additional
terms and conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by
the rules and regulations of the Commission under the Securities Act
and in accordance with Section 4(a) hereof; no stop order suspending
the effectiveness of either of the Registration Statements or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission, and all requests
for additional information on the part of the Commission (to be
included in either of the Registration Statements or the Prospectus or
otherwise) shall have been complied with to the reasonable satisfaction
of the Representatives.
(b) None of the Underwriters shall have discovered and
disclosed to the Company on or prior to such Closing Date that either
of the Registration Statements or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which, in the
opinion of counsel for the Underwriters, is material or omits to state
any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of this Agreement, the
Stock, the Registration Statements and the Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P. and Xxxxxxxxx & Xxxxx,
PLLC shall have furnished to the Representatives such counsels' written
opinion, as counsel to the Company, addressed to the Underwriters and
dated such Closing Date, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
(i) Each of the Company and its subsidiaries (as defined
in Section 15) has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation
and has all power and authority necessary to own and
hold its properties and to conduct its business as
described in the Prospectus, except where the failure
to so qualify or have such power or authority would
not have, singularly or in the aggregate, a Material
Adverse Effect.
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares
of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof
contained in the Prospectus. The Stock to be issued
and sold by the Company to the Underwriters hereunder
has been duly and validly authorized
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and, when issued and delivered against payment
therefor as provided herein, will be duly and validly
issued, fully paid and non-assessable and free of any
preemptive rights pursuant to the Company's
Certificate of Incorporation or Bylaws or the
Delaware General Corporation Law or, to our
knowledge, similar contractual rights and will
conform in all material respects to the description
thereof contained in the Prospectus.
(iii) There are no preemptive rights pursuant to the
Company's Certificate of Incorporation or Bylaws or
the Delaware General Corporation Law or, to the
knowledge of such counsel, other similar contractual
rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any
shares of the Stock.
(iv) All the issued shares of capital stock of each
subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and
non-assessable and, except to the extent set forth in
the Prospectus, are owned by the Company directly or
indirectly through one or more wholly-owned
subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon
voting or any other claim of any third party.
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The execution, delivery and performance of this
Agreement by the Company and the consummation of the
transactions contemplated hereby will not conflict
with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under
any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument that is
filed as an exhibit to the Registration Statement,
nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company
or of any of its subsidiaries or any statute or any
order, rule or regulation of any court or
governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of
their properties or assets (except for statutes,
rules, orders or regulations the violation of which
would not, singularly or in the aggregate, have a
Material Adverse Effect); except for (i) the
registration of the Stock under the Securities Act
and the Exchange Act and (ii) such consents,
approvals, authorizations, registrations or
qualifications as may be required under applicable
state securities laws in connection with the purchase
and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or
filing or registration with, any such court or
governmental agency or body is required for the
execution, delivery and performance of this Agreement
by the Company and the consummation of the
transactions contemplated hereby.
(vii) The statements made in the Prospectus under the
caption "Description of Capital Stock," insofar as
they purport to constitute summaries of the terms of
the Common Stock (including the Stock), constitute
accurate summaries of the terms of the Common Stock
in all material respects.
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(viii) The descriptions in the Prospectus under the captions
"Risk Factors--Shares Eligible for Future Sale Could
Adversely Affect Stock Price in the Future,"
"Management's Discussion and Analysis of Financial
Condition and Results of Operations--Liquidity and
Capital Resources; Recent Accounting Pronouncements,"
"Business--Customers; Licensing, Intellectual
Property and Proprietary Rights,"
"Management--Employment Agreements," "Description of
Capital Stock," and "Shares Eligible for Future Sale"
of statutes, legal or governmental proceedings and
contracts and other documents are accurate in all
material respects; and to the best of such counsel's
knowledge, there are no statutes, legal or
governmental proceedings, contracts or other
documents of a character required to be described in
the Prospectus or to be filed as exhibits to the
Registration Statements which are not described or
filed as required.
(ix) To such counsel's knowledge, each of the Company and
its subsidiaries possesses all licenses,
certificates, authorizations and permits issued by,
and has made all declarations and filings with, the
appropriate state, federal and foreign regulatory
agencies and bodies which are necessary or desirable
for the ownership of its properties and the conduct
of its business as described in the Prospectus,
except where any failures to possess or make the
same, singularly or in the aggregate, would not have
a Material Adverse Effect; and to such counsel's
knowledge, the Company has not received notification
of any revocation or modification of any such
license, authorization or permit.
(x) To such counsel's knowledge and except as set forth
in the Prospectus, there is no legal or governmental
proceeding pending to which the Company or any of its
subsidiaries is a party or to which any property or
assets of the Company or any of its subsidiaries is
subject which, singularly or in the aggregate, if
determined adversely to the Company or any of its
subsidiaries, could have a Material Adverse Effect;
and, to such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental
authorities or threatened by others.
(xi) The Primary Registration Statement was declared
effective under the Securities Act as of the date and
time specified in such opinion; the Rule 462(b)
Registration Statement, if any, was filed with the
Commission on the date specified therein, the
Prospectus was timely filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the
rules and regulations of the Commission specified in
such opinion on the date specified therein and no
stop order suspending the effectiveness of either of
the Registration Statements has been issued and, to
such counsel's knowledge, no proceeding for that
purpose has been initiated or threatened by the
Commission.
(xii) The Registration Statements (or, if applicable, the
Registration Statements as amended by any
post-effective amendment prior to such Closing Date),
as of their respective Effective Dates, and the
Prospectus (or, if applicable, the Prospectus as
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amended or supplemented prior to such Closing Date),
as of its date (other than the financial statements
and other financial data contained therein, as to
which such counsel need express no opinion) complied
as to form in all material respects with the
requirements of the Securities Act and the rules and
regulations of the Commission thereunder.
(xiii) To such counsel's knowledge, no person or entity has
the right to require shares of Common Stock or other
securities of the Company to be registered as part of
the Registration Statements because of the filing or
effectiveness of the Registration Statements or
otherwise, except for persons and entities who have
expressly waived such right or who have been given
proper notice and have failed to exercise such right
within the time or times required under the terms and
conditions of such right.
(xiv) Neither the Company nor any of its subsidiaries is
and, immediately after giving effect to the offering
of the Stock to be sold by the Company to the
Underwriters and the application of the proceeds
thereof as described in the Prospectus will become,
an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission thereunder.
Such counsel shall also have furnished to the
Representatives a written statement, addressed to the
Underwriters and dated such Closing Date, in form and
substance satisfactory to the Representatives, to the
effect that (x) such counsel has acted as counsel to
the Company in connection with the preparation of the
Registration Statements and the Prospectus (or, if
applicable, the Registration Statements as amended by
any post-effective amendment prior to such Closing
Date and, if applicable, the Prospectus as amended or
supplemented prior to such Closing Date), (y) based
on such counsel's examination of the Registration
Statements and the Prospectus (or, if applicable, the
Registration Statements as amended by any
post-effective amendment prior to such Closing Date
and, if applicable, the Prospectus as amended or
supplemented prior to such Closing Date) and such
counsel's investigations made in connection with the
preparation of the Registration Statements and the
Prospectus (or, if applicable, the Registration
Statements as amended by any post-effective amendment
prior to such Closing Date and, if applicable, the
Prospectus as amended or supplemented prior to such
Closing Date) and conferences with certain officers
and employees of and with auditors for and counsel to
the Company, nothing has come to such counsel's
attention that has caused them to believe that the
Registration Statements (or, if applicable, the
Registration Statements as amended by any
post-effective amendment prior to such Closing Date),
as of their respective Effective Dates, contained any
untrue statement of a material fact or omitted to
state any material fact required to be stated therein
or necessary in order to make the statements therein
not misleading, or that the Prospectus (or, if
applicable, the Prospectus as amended or supplemented
prior to such Closing Date) contains any untrue
statement of a material fact or omits to state any
material fact required to be stated therein or
necessary in order to make the
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statements therein, in light of the circumstances
under which they were made, not misleading; it being
understood that such counsel need express no opinion
as to the financial statements or other financial
data contained in the Registration Statements or the
Prospectus.
The foregoing statement may be qualified by a statement to the
effect that such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the
Registration Statements or the Prospectus and takes no responsibility
therefor except to the extent set forth in the opinion described in
clauses (vii) and (viii) above.
(e) The Representatives shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to such matters as the
Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they may request to enable
them to pass upon such matters.
(f) At the time of the execution of this Agreement, the
Representatives shall have received from PriceWaterhouseCoopers LLP a
letter, addressed to the Underwriters and dated such date, in form and
substance satisfactory to the Representatives (i) confirming that they
are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Securities Act
and the rules and regulations of the Commission thereunder and (ii)
stating the conclusions and findings of such firm with respect to the
financial statements and certain financial information contained in the
Prospectus.
(g) On the effective date of any post-effective amendment to
either of the Registration Statements filed subsequent to the date of
this Agreement and also on such Closing Date, the Representatives shall
have received a letter (the "bring-down letter") from
PriceWaterhouseCoopers LLP, addressed to the Underwriters and dated
such Closing Date, confirming, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus as of a date not more than three business days
prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Representatives
concurrently with the execution of this Agreement pursuant to Section
6(f).
(h) The Company shall have furnished to the Representatives a
certificate, dated such Closing Date, of its Chief Executive Officer
and its Chief Financial Officer stating that (i) such officers have
carefully examined the Registration Statements and the Prospectus (or,
if applicable, the Registration Statements as amended by any
post-effective amendment prior to such Closing Date and, if applicable,
the Prospectus as amended or supplemented prior to such Closing Date)
and, in their opinion, the Registration Statements (or, if applicable,
the Registration Statements as amended by any post-effective amendment
prior to such Closing Date), as of their respective Effective Dates,
and the Prospectus (or, if applicable, the Prospectus, as amended or
supplemented prior to such Closing Date), as of the date of such
certificate, did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) since the
Effective Date of the Primary Registration Statement no event
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has occurred which should have been set forth in a supplement or
amendment to either of the Registration Statements or the Prospectus,
(iii) to the best of their knowledge after reasonable investigation, as
of such Closing Date, the representations and warranties of the Company
in this Agreement are true and correct and the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date and
(iv) subsequent to the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change
in the financial position or results of operation of the Company or any
of its subsidiaries, or any material change, or any material
development including a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries, taken as a whole, except
as set forth in the Prospectus.
(i) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any 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, otherwise than as set forth or
contemplated in the Prospectus and (ii) since such date, neither the
Company nor any of its subsidiaries shall have incurred any liabilities
or obligations, direct or contingent, or entered into any transaction,
not in the ordinary course of business, which are material to the
Company and its subsidiaries taken as a whole, and there shall not have
been any change in the capital stock or short- or long-term debt of the
Company or any of its subsidiaries or any material change, or any
material development involving a prospective change, in or affecting
the business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Stock on the
terms and in the manner contemplated in the Prospectus.
(j) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of such Closing Date,
prevent the issuance or sale of the Stock; and no injunction,
restraining order or order of any other nature by any federal or state
court of competent jurisdiction shall have been issued as of such
Closing Date which would prevent the issuance or sale of the Stock.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United
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States shall be such) as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the sale
or delivery of the Stock on the terms and in the manner contemplated in
the Prospectus.
(l) The Nasdaq National Market shall have approved the Stock
for listing, subject only to official notice of issuance and evidence
of satisfactory distribution.
(m) XX Xxxxx shall have received the written agreements,
substantially in the form of Exhibit I hereto, of the officers,
directors and shareholders of the Company listed in Schedule B to this
Agreement.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. UNDERWRITER INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall
indemnify and hold harmless each Underwriter, its officers, employees,
representatives and agents, each of its directors and each person, if any, who
controls any Underwriter within the meaning of the Securities Act (collectively
the "Underwriter Indemnified Parties" and each an "Underwriter Indemnified
Party"), against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which that Underwriter Indemnified Party may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus, either of the Registration Statements or the Prospectus
or in any amendment or supplement thereto, (ii) the omission or alleged omission
to state in any Preliminary Prospectus, either of the Registration Statements or
the Prospectus or in any amendment or supplement thereto a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (iii) any act or failure to act, or any alleged act or failure to
act, by any Underwriter Indemnified Party in connection with, or relating in any
manner to, the Stock or the offering contemplated hereby, and which is included
as part of or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (i) or (ii) above,
(provided that the Company shall not be liable in the case of any matter covered
by this clause (iii) to the extent that it is determined in a final judgement by
a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted from any such act or failure to act undertaken or omitted to be
taken by such Underwriter through its gross negligence or wilful misconduct) and
shall reimburse each Underwriter Indemnified Party promptly upon demand for any
legal or other expenses reasonably incurred by that Underwriter Indemnified
Party in connection with investigating or preparing to defend or defending
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
upon (i) an untrue statement or alleged untrue statement in or omission or
alleged omission from the Preliminary Prospectus, either of the Registration
Statements or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for use
therein, which information the parties hereto agree is limited to the
Underwriters' Information (as defined in Section 17). This indemnity agreement
is not exclusive and
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will be in addition to any liability which the Company might otherwise have and
shall not limit any rights or remedies which may otherwise be available at law
or in equity to each Underwriter Indemnified Party.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company its officers, employees, representatives and agents,
each of its directors and each person, if any, who controls the Company within
the meaning of the Securities Act (collectively the "Company Indemnified
Parties" and each a "Company Indemnified Party"), against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which that Company Indemnified Party may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Prospectus, either of
the Registration Statements or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, either of the Registration Statements or the Prospectus or in any
amendment or supplement thereto a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf
of that Underwriter specifically for use therein, and shall reimburse each
Company Indemnified Party promptly upon demand for any legal or other expenses
reasonably incurred by such parties in connection with investigating or
preparing to defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the parties hereto hereby agree
that such written information provided by the Underwriters consists solely of
the Underwriters' Information. This indemnity agreement is not exclusive and
will be in addition to any liability which the Underwriters might otherwise have
and shall not limit any rights or remedies which may otherwise be available at
law or in equity to each Company Indemnified Party.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 7 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 7. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to
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the indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (other
than local counsel) at any time for all such indemnified parties, which firm
shall be designated in writing by XX Xxxxx, if the indemnified parties under
this Section 7 consist of any Underwriter Indemnified Party, or by the Company,
if the indemnified parties under this Section 7 consist of any Company
Indemnified Party. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 7(a) and 7(b), shall use all reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or
claim. Subject to the provisions of Section 7(d) below, no indemnifying party
shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 7 effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Sections
7(a) and 7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Stock or 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 the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, 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 with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Stock purchased under this Agreement (before deducting
expenses other than underwriting discounts and commissions) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the Stock purchased under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged
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untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission; provided that the parties hereto agree that the
written information furnished to the Company through the Representatives by or
on behalf of the Underwriters for use in any Preliminary Prospectus, either of
the Registration Statements or the Prospectus consists solely of the
Underwriters' Information. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 7(e) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
7(e) shall be deemed to include, for purposes of this Section 7(e), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(e), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public were offered to the public less
the amount of any damages which such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The Underwriters' obligations to contribute as provided in this Section
7(e) are several in proportion to their respective underwriting obligations and
not joint.
8. QIU INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall
indemnify and hold harmless SoundView Technology Group, Inc., in its capacity as
QIU, its officers, employees, representatives and agents, each of its directors
and each person, if any, who controls the QIU within the meaning of the
Securities Act (collectively the "QIU Indemnified Parties" and each a "QIU
Indemnified Party"), against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which that QIU Indemnified Party
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage or liability or action arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, either of the Registration Statements or the Prospectus
or in any amendment or supplement thereto; (ii) the omission or alleged omission
to state in any Preliminary Prospectus, either of the Registration Statements or
the Prospectus or in any amendment or supplement thereto a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or (iii) any act or failure to act, or any alleged act or failure to
act, by any QIU Indemnified Party in connection with, or relating in any manner
to, the Stock or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action arising out of
or based upon matters covered by clause (i) or (ii) above, (provided that the
Company shall not be liable in the case of any matter covered by this clause
(iii) to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or action
resulted from any such act or failure to act undertaken or omitted to be taken
by such QIU through its gross negligence or wilful misconduct) and shall
reimburse the QIU promptly upon demand for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or preparing to
defend or defending against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred. This indemnity agreement is not
24
24
exclusive and will be in addition to any liability which the Company might
otherwise have and shall not limit any rights or remedies which may otherwise be
available at law or in equity to each QIU Indemnified Party.
(b) Promptly after receipt by an indemnified party under subsection (a)
above of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under such subsection except to the extent it has been
materially prejudiced by such failure; and, provided, further, that the failure
to notify the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under such subsection. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under such subsection for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of the indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for the indemnified party to employ
separate counsel or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if the indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (other than local counsel) at any time
for all such indemnified parties, which firm shall be designated in writing by
the indemnified party. Each indemnified party, as a condition of the indemnity
agreements contained in this Section 8, shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. Subject to the provisions of Section 8(c) below, no indemnifying party
shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(c) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 8 effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the request for
25
25
reimbursement, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a), then each indemnifying party shall, in lieu of indemnifying the
indemnified party, contribute to the amount paid or payable by the indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the QIU on the other from
the offering of the Stock or 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 the QIU on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or any action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the QIU on the other with respect to the offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Stock purchased under this Agreement (before deducting expenses) received
by the Company bear to the fee payable to the QIU pursuant to Section 3 hereof.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the QIU on the other, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the QIU agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or any action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
9. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by XX Xxxxx, in its absolute discretion by notice given to and
received by the Company prior to delivery of and payment for the Firm Stock if,
prior to that time, any of the events described in Sections 6(i), 6(j), 6(k) or
6(l) have occurred or if the Underwriters shall decline to purchase the Stock
for any reason permitted under this Agreement.
10. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement
shall have been terminated pursuant to Section 9 or 11, (b) the Company shall
fail to tender the Stock for delivery to the Underwriters for any reason
permitted under this Agreement or (c) the Underwriters shall decline to purchase
the Stock for any reason permitted under this Agreement, the Company shall
reimburse the Underwriters for the fees and expenses of their counsel and for
such other out-of-pocket expenses as shall have been reasonably incurred by them
in connection with this Agreement and the proposed purchase of the Stock, and
upon demand the Company shall pay the full amount thereof to the XX Xxxxx. If
this Agreement is terminated pursuant to
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26
Section 11 by reason of the default of one or more Underwriters, the Company
shall not be obligated to reimburse any defaulting Underwriter on account of
those expenses.
11. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters
shall default in its or their obligations to purchase shares of Stock hereunder
and the aggregate number of shares which such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed ten percent (10%) of
the total number of shares underwritten, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representatives and the Company for the
purchase of such shares by other persons are not made within forty-eight (48)
hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 11, (i) the Company
shall have the right to postpone the Closing Dates for a period of not more than
five (5) full business days in order that the Company may effect whatever
changes may thereby be made necessary in the Registration Statements or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file any amendments to the Registration Statements or supplements to
the Prospectus which may thereby be made necessary and (ii) the respective
numbers of shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their underwriting obligation for
all purposes of this Agreement. Nothing herein contained shall relieve any
defaulting Underwriter of its liability to the Company or the other Underwriters
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 11 shall be without liability on the part of
any non-defaulting Underwriter or the Company, except expenses to be paid or
reimbursed pursuant to Sections 5 and 10 and except the provisions of Section 7
and 8 shall not terminate and shall remain in effect.
12. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the several
Underwriters, the QIU and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person other than the persons mentioned in the preceding sentence any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the
representations, warranties, covenants, agreements and indemnities of the
Company contained in this Agreement shall also be for the benefit of the
Underwriter Indemnified Parties and the QIU Indemnified Parties, and the
indemnities of the several Underwriters shall also be for the benefit of the
Company Indemnified Parties.
13. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company, the QIU and the several Underwriters, as set
forth in this Agreement or made by them respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter,
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27
the QIU, the Company or any person controlling any of them and shall survive
delivery of and payment for the Stock.
14. NOTICES. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, overnight courier (guaranteed delivery) or facsimile transmission
to XX Xxxxx Securities Corporation, Xxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: _________ (Fax: 212- _________);
(b) if to the QIU, shall be delivered or sent by mail,
overnight courier (guaranteed delivery) or facsimile transmission to
SoundView Technology Group, Inc., Attention: __________________ (Fax:
______________); or
(c) if to the Company, shall be delivered or sent by mail,
overnight courier (guaranteed delivery) or facsimile transmission to
OpenSite Technologies, Inc., 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxx X. Xxxx (Fax: 000-000-0000);
provided, however, that any notice to an Underwriter pursuant to Section 7 shall
be delivered or sent by mail, overnight courier (guaranteed delivery) or
facsimile transmission to such Underwriter at its address set forth in its
acceptance telex to the Representatives, which address will be supplied to any
other party hereto by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
15. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement (a)
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the
rules and regulations of the Commission.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree
that, for all purposes of this Agreement, the Underwriters' Information consists
solely of the following information in the Prospectus: (i) the table and the
penultimate paragraph on the front cover page concerning the terms of the
offering by the Underwriters and (ii) the statements concerning the Underwriters
contained in the ________ paragraphs under the heading "Underwriting."
18. AUTHORITY OF THE REPRESENTATIVES. In connection with this
Agreement, you will act for and on behalf of the several Underwriters, and any
action taken under this Agreement by the Representatives will be binding on all
the Underwriters.
19. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to
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28
be invalid or unenforceable, there shall be deemed to be made such minor changes
(and only such minor changes) as are necessary to make it valid and enforceable.
20. GENERAL. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. In this Agreement, the masculine, feminine and neuter
genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this Agreement may
be waived, only by a writing signed by the Company and the Representatives.
21. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which when taken together shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
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29
If the foregoing is in accordance with your understanding of the
agreement between the Company and the several Underwriters, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
OPENSITE TECHNOLOGIES, INC.
By:________________________
Name:
Title:
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30
Accepted as of the date first above written:
XX XXXXX SECURITIES CORPORATION
SOUNDVIEW TECHNOLOGY GROUP, INC.
WACHOVIA SECURITIES, INC.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement
XX XXXXX SECURITIES CORPORATION
By:______________________________
Name:
Title:
SOUNDVIEW TECHNOLOGY GROUP, INC.
By:______________________________
Name:
Title:
WACHOVIA SECURITIES, INC.
By:______________________________
Name:
Title:
THE XXXXXXXX-XXXXXXXX COMPANY, LLC.
By:______________________________
Name:
Title:
31
SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
---- --------- ---------
XX Xxxxx Securities Corporation................
--------- ---------
SoundView Technology Group, Inc................
--------- ---------
Wachovia Securities, Inc.......................
--------- ---------
The Xxxxxxxx-Xxxxxxxx Company, LLC.............
--------- ---------
Total ========= =========
32
SCHEDULE B
[list of officers, directors and shareholders subject to Section 4(h)]
33
Exhibit I
Form of Lock-Up Agreement
, 1999
XX Xxxxx Securities Corporation
Soundview Technology Group, Inc.
Wachovia Securities, Inc.
The Xxxxxxxx-Xxxxxxxx Company, LLC
As representatives of the
several Underwriters
c/o XX Xxxxx Securities Corporation
Xxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: OpenSite Technologies, Inc. -- ____ Shares of Common Stock
Dear Sirs:
In order to induce XX Xxxxx Securities Corporation ("XX
Xxxxx"), SoundView Technology Group, Inc., Wachovia Securities, Inc. and The
Xxxxxxxx-Xxxxxxxx Company, LLC (together with XX Xxxxx, SoundView Technology
Group, Inc. and Wachovia Securities, Inc., the "Representatives"), to enter in
to a certain underwriting agreement with OpenSite Technologies, Inc., a Delaware
corporation (the "Company"), with respect to the public offering of shares of
the Company's Common Stock, par value $__ per share (the "Common Stock"), the
undersigned hereby agrees that it will not: (1) directly or indirectly, offer,
sell, assign, transfer, encumber, pledge, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise dispose of, other than by
operation of law, any shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock (including without limitation,
Common Stock which may be deemed to be beneficially owned in accordance with the
rules and regulations promulgated under the Securities Act); or (2) enter into
any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of Common Stock whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise, without the prior
written consent of XX Xxxxx, for a period of 180 days following the date of the
Prospectus (as defined in the underwriting agreement referred to above), other
than (i) the sale of the Stock pursuant to such public offering, (ii) as a bona
fide gift or gifts, provided the donee or donees thereof agree in writing to be
bound by this restriction, or (iii) as a distribution to partners or
stockholders of the undersigned, provided that the distributees thereof agree in
writing to be bound by the terms of this restriction.
Anything contained herein to the contrary notwithstanding, any
person to whom shares of Common Stock are transferred from the undersigned shall
be bound by the terms of this Agreement.
In addition, the undersigned hereby waives, from the date
hereof until the expiration of the 180-day period following the date of the
Prospectus, any and all rights, if any, to request or demand
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registration pursuant to the Securities Act of any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock that
are registered in the name of the undersigned. In order to enable the aforesaid
covenants to be enforced, the undersigned hereby consents to the placing of
appropriate legends and/or stop-transfer orders with the transfer agent of the
Common Stock or any other such securities.
[Signatory]
By:__________________________________
Name:
Title:
