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WSGR DRAFT: 07/10/98
EXHIBIT 1.1
3,000,000 SHARES
MICROMUSE INC.
COMMON STOCK
UNDERWRITING AGREEMENT
July __, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXX XXXXXX INC.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Micromuse Inc., a Delaware corporation
("Company") proposes to issue and sell 1,000,000 shares of its common stock,
par value $0.01 per share ("Securities"), and the stockholders listed in
Schedule A hereto ("Selling Stockholders") propose severally to sell an
aggregate of 2,000,000 outstanding shares of the Securities (such 3,000,000
shares of Securities being hereinafter referred to as the "Firm Securities").
Certain of the Selling Stockholders also propose to sell to the Underwriters,
at the option of the Underwriters, an aggregate of not more than 450,000
additional outstanding shares of the Company's Securities, as set forth below
(such 450,000 additional shares being hereinafter referred to as the "Optional
Securities"). The Firm Securities and the Optional Securities are herein
collectively called the "Offered Securities." The Company and the Selling
Stockholders hereby agree with the several Underwriters named in Schedule B
hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company and the Selling Stockholders jointly and
severally represent and warrant to, and agree with, the several Underwriters
that:
(i) A registration statement (No. 333-______)
relating to the Offered Securities, including a form of
prospectus, has been filed with the Securities and Exchange
Commission ("Commission") and either (A) has been declared
effective under the Securities Act of 1933, as amended
("Act"), and is not proposed to be amended or (B) is proposed
to be amended by amendment or post-effective amendment. If
such registration statement (the "initial registration
statement") has been declared effective, either (A) an
additional registration statement (the "additional
registration statement") relating to the Offered Securities
may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the
Offered Securities all have been duly registered under the Act
pursuant to the
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initial registration statement and, if applicable, the
additional registration statement or (B) such an additional
registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under
the Act pursuant to the initial registration statement and
such additional registration statement. If the Company does
not propose to amend the initial registration statement or if
an additional registration statement has been filed and the
Company does not propose to amend it, and if any
post-effective amendment to either such registration statement
has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any)
to each such registration statement has been declared
effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act
or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "Effective Time" with
respect to the initial registration statement or, if filed
prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has
advised the Representatives to the several Underwriters named
herein ("Representatives") that it does not propose to amend
such registration statement, the date and time as of which
such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to
Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-
effective amendment to such registration statement, the date
and time as of which such registration statement, as amended
by such amendment or post-effective amendment, as the case may
be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration
statement means the date and time as of which such
registration statement is filed and becomes effective pursuant
to Rule 462(b). "Effective Date" with respect to the initial
registration statement or the additional registration
statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and
including all information (if any) deemed to be a part of the
initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Initial Registration
Statement." The additional registration statement, as amended
at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the
"Additional Registration Statement." The Initial Registration
Statement and the Additional Registration are hereinafter
referred to collectively as the "Registration Statements" and
individually as a "Registration Statement." The form of
prospectus relating to the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is
hereinafter referred to as the "Prospectus." No document has
been or will be prepared or distributed in reliance on Rule
434 under the Act.
(ii) The Commission has not issued any order
preventing or suspending the use of the Prospectus or any
preliminary prospectus contained in the Initial Registration
Statement or instituted any proceedings for that purpose. If
the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on
the Effective Date of the Initial Registration Statement, the
Initial Registration Statement
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conformed in all respects to the requirements of the Act and
the rules and regulations of the Commission ("Rules and
Regulations") and did not include 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, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed or will conform, in all respects to the requirements
of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b) or
(if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and no Additional
Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 7(c) hereof.
(iii) The Company has not distributed and, prior to
the later of (a) any Closing Date (as defined herein) and (b)
the completion of the distribution of the Offered Securities,
will not distribute any offering material in connection with
the offering of the Offered Securities other than a
Registration Statement, any preliminary prospectus contained
therein or the Prospectus or any amendment or supplement
thereto.
(iv) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification.
(v) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
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(vi) The Offered Securities and all other
outstanding shares of capital stock of the Company have been
duly authorized and validly issued, fully paid and
nonassessable and conform to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities. The
information set forth under the caption "Capitalization" in
the Prospectus is true and correct. There are no outstanding
options, warrants or other rights granted to or by the Company
to purchase Securities or other securities of the Company
other than as described in the Prospectus.
(vii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection
with this offering.
(viii) There are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company or Micromuse PLC
to cause any securities of the Company or Micromuse PLC owned
or to be owned by such person to be registered pursuant to the
Registration Statement filed by the Company under the Act
covering the Offered Securities which have not been fully
satisfied or waived.
(ix) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the
Company or Micromuse PLC and any person granting such person
the right to require the Company or Micromuse PLC to file a
registration statement under the Act with respect to any
securities of the Company or Micromuse PLC owned or to be
owned by such person or to require the Company or Micromuse
PLC to include such securities in any securities being
registered pursuant to a registration statement filed by the
Company or Micromuse PLC under the Act.
(x) The Offered Securities have been approved for
listing on The Nasdaq Stock Market's National Market, subject
to notice of issuance.
(xi) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or any
court is required to be obtained or made by the Company for
the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under
the Act and such as may be required under state securities
laws.
(xii) The execution, delivery and performance of
this Agreement, and the consummation of the transactions
herein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound
or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary.
(xiii) This Agreement has been duly authorized,
executed and delivered by the Company.
(xiv) Except as disclosed in the Prospectus, the
Company and its subsidiaries have good and marketable title to
all real properties and all other properties and assets owned
by them, in each case free from liens, encumbrances and
defects that would materially affect
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the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the
Prospectus, the Company and its subsidiaries hold any leased
real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the
use made or to be made thereof by them.
(xv) The Company and its subsidiaries possess
adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries
taken as a whole.
(xvi) No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the
Company, is imminent that might have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(xvii) The Company and its subsidiaries own, possess
or can acquire on reasonable terms, adequate trademarks, trade
names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual
property (collectively, "intellectual property rights")
necessary to operate its business as presently being conducted
and proposed to be conducted as described in the Prospectus,
and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property Rights that, if determined adversely to
the Company or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect on the Company
and its subsidiaries taken as a whole. Neither the Company
nor any of its subsidiaries is infringing any trademark, trade
name rights, patent rights, mask works, copyrights, licenses,
trade secret, servicemarks or other similar rights of others,
and there is no claim being made against the Company or any of
its subsidiaries regarding trademark, trade name, patent, mask
work, copyright, license, trade secret or other infringement
or assertion of intellectual property rights which could have
a material adverse effect on the earnings, properties,
business affairs or business prospects, stockholders' equity,
net worth or results of operations of the Company. The
Company has agreements in place with each employee, consultant
or other person or party engaged by the Company or any
subsidiary sufficient to enable the Company and any subsidiary
to fulfill their contractual obligations and to conduct their
respective businesses as now conducted or proposed to be
conducted as described in the Prospectus and providing for the
assignment to the Company or any of its subsidiaries, as the
case may be, of all intellectual property and exploitation
rights in the work performed and the protection of the trade
secrets and confidential information of the Company, each of
its subsidiaries and of third parties which have been
developed by such person for or on behalf of the Company or
any of its subsidiaries.
(xviii) Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with
any substance that is subject to any Environmental Laws, is
liable for any off-site disposal or contamination pursuant to
any Environmental Laws, or is subject to any claim relating to
any Environmental Laws, which violation, contamination,
liability or claim would individually or in the aggregate have
a material adverse effect on the Company and its subsidiaries
taken as a whole; and the Company is not aware of any pending
investigation which might lead to such a claim.
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(xix) Except as disclosed in the Prospectus, there
are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a
whole, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement,
or which are otherwise material in the context of the sale of
the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge,
contemplated.
(xx) The financial statements included in each
Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
applied on a consistent basis and the schedules included in
each Registration Statement present fairly the information
required to be stated therein.
(xxi) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements included
in the Prospectus there has been no material adverse change,
nor any development or event involving a prospective material
adverse change, in the condition (financial or other),
business, properties or results of operations of the Company
and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been
no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(xxii) The Company and each of its subsidiaries has
filed all foreign, federal, state and local tax returns that
are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not
have a materially adverse effect on the Company and its
subsidiaries, taken as a whole) and the Company and each of
its subsidiaries has paid all material taxes required to be
paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that
is currently being contested in good faith or as described in
or contemplated by the Registration Statement or the
Prospectus.
(xxiii) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940.
(xxiv) Neither the Company, nor any of its
affiliates, has taken or may take, directly or indirectly, any
action designed to cause or result in, or which has
constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of
the shares of the Securities to facilitate the sale or resale
of the Offered Securities.
(xxv) KPMG Peat Marwick LLP, who have certified the
financial statements filed with the Commission as part of each
Registration Statement, are independent public accountants as
required by the Act and the Rules and Regulations. The
Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (a)
transactions are executed in accordance with management's
general or specific authorization; (b) transactions are
recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; and (c)
access to assets is permitted only in accordance with
management's general or specific authorization.
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(xxvi) The Company and each of its subsidiaries
carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective
properties and as is customary for companies engaged in
similar industries.
(xxvii) The Company and each of its subsidiaries are
in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with
respect to any "pension plan" (as defined in ERISA) for which
the Company or any of its subsidiaries would have any
liability; the Company and each of its subsidiaries have not
incurred and do not expect to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal
from, any "pension plan" or (ii) Section 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder ("Code");
and each "pension plan" for which the Company and each of its
subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in
all material respect and nothing has occurred, whether by
action or by failure to act, which would cause the loss of
such qualification.
(xxviii) Except as set forth in each Registration
Statement and the Prospectus, there are no agreements, claims,
payment, issuances, arrangements or understandings, whether
oral or written, for services in the nature of finder's,
consulting or origination fees with respect to the sale of the
Offered Securities or any other arrangements, agreements,
understandings, payments or issuance with respect to the
Company or any of its officers, directors, shareholders,
partners, employees, subsidiaries or affiliates that may
affect the Underwriters' compensation as determined by the
National Association of Securities Dealers, Inc. (the
"NASD").
(xxix) Except as set forth in each Registration
Statement (including without limitation the documents
incorporated by reference therein) and the Prospectus, no
officer, director or shareholder of the Company or any
"affiliate" or "associate" (as these terms are defined in Rule
405 under the Act) of any of the foregoing persons or entities
has or has had, either directly or indirectly (a) an interest
in any person or entity that (x) furnishes or sells services
or products which are furnished or sold or that are proposed
to be furnished or sold by the Company, or (y) purchases from
or sells or furnishes to the Company any goods or services, or
(b) a beneficial interest in any contract or agreement to
which the Company is a party or by which it may be bound or
affected. Except as set forth in each Registration Statement
and the Prospectus under the caption "Certain Transactions"
and "Management", there are no existing or proposed
agreements, arrangements, understandings or transactions,
between or among the Company and any officer, director,
principal shareholder of the Company or any partner, affiliate
or associate of any of the foregoing persons or entities.
(xxx) The minute books of the Company made
available to the Underwriters contain a complete summary of
all meetings and actions of the directors and stockholders of
the Company since the time of its incorporation and reflects
accurately and fairly in all respects all transactions
referred to in such minutes.
(xxxi) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes and the Company agrees to comply
with such Section if prior to the completion of the
distribution of the Offered Securities it commences doing such
business.
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(xxxii) The execution and delivery of each of the
agreements relating to the share exchange and option
substitution in connection with the reorganization of
Micromuse PLC into the Company (collectively, the
"Reorganization Documents") was duly authorized by all
necessary corporate and other action on the part of each of
the Company, Micromuse PLC and each Selling Stockholder. Each
of the Company, Micromuse PLC and each Selling Stockholder had
all corporate and other power and authority to execute and
deliver the Reorganization Documents and to consummate the
transactions contemplated therein and the Reorganization
Documents constituted valid and binding obligations of each of
the Company, Micromuse PLC and each Selling Stockholder.
(xxxiii) The execution, delivery and
performance of, and compliance with, the terms of the
Reorganization Documents did not, at the time of execution,
and do not violate any provision of the Amended and Restated
Certificate of Incorporation or Bylaws of the Company, or, any
provision of any applicable federal, state or United Kingdom
law, rule or regulation.
(b) Each Selling Stockholder severally represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on
each Closing Date hereinafter mentioned will have valid and
unencumbered title to the Offered Securities to be delivered
by such Selling Stockholder on such Closing Date and full
right, power and authority to enter into (a) this Agreement,
(b) the Custody Agreement signed by such Selling Stockholder
and __________________, as custodian (the "Custodian"),
relating to the deposit of the Securities to be sold by such
Selling Stockholder (the "Custody Agreement") and (c) the
power of attorney ("Power of Attorney") appointing certain
individuals named therein as such Selling Stockholder's
attorneys-in-fact (each, an "Attorney-in-Fact") to the extent
set forth therein relating to the transactions contemplated
hereby and by the Prospectus, and to sell, assign, transfer
and deliver the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date hereunder; and upon
the delivery of and payment for the Offered Securities on each
Closing Date hereunder the several Underwriters will acquire
valid and unencumbered title to the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date.
(ii) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery
of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement
conformed in all respects to the requirements of the Act and
the Rules and Regulations and did not include 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, (B) on the Effective Date
of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all
respects to the requirements of the Act and the Rules and
Regulations did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading,
and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution
and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated
therein
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or necessary to make the statements therein not misleading.
If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement:
on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the
Rules and Regulations, neither of such documents will include
any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary
to make the statements therein not misleading. The two
preceding sentences do not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 7(c).
(iii) Except as disclosed in the
Prospectus, there are no contracts, agreements or
understandings between such Selling Stockholder and any person
that would give rise to a valid claim against such Selling
Stockholder or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with this
offering.
(iv) This Agreement has been duly
authorized, executed and delivered by or on behalf of such
Selling Stockholder and is a valid and binding agreement of
such Selling Stockholder, enforceable in accordance with its
terms, except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles.
(v) Each of the Custody Agreement and
the Power of Attorney of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling
Stockholder and is a valid and binding agreement of such
Selling Stockholder, enforceable in accordance with its terms,
except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors
or by general equitable principles.
(vi) The execution and delivery by such
Selling Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement, the
Custody Agreement and the Power of Attorney or the
consummation by any Selling Stockholder or any of the other
transactions contemplated hereby, will not contravene or
conflict with, result in a breach of, or constitute a default
under, or require the consent of any other party to, the
charter or by-laws, partnership agreement, trust agreement or
other organizational documents of such Selling Stockholder or
any other agreement or instrument to which such Selling
Stockholder is bound or under which it is entitled to any
right or benefit, any provision of applicable law or any
judgment, order, decree or regulation applicable to such
Selling Stockholder of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over such Selling Stockholder. No consent,
approval, authorization or other order of, or registration or
filing with, any court or other governmental authority or
agency, is required for the consummation by such Selling
Stockholder of the transactions contemplated in this
Agreement, except such as have been obtained or made and are
in full force and effect under the Act, applicable state
securities or blue sky laws and from the NASD.
(vii) All consents, approvals,
authorizations and orders necessary for the execution and
delivery by such Selling Stockholder of this Agreement, the
Power of Attorney and the Custody Agreement (assuming the
making of all filings required under Rule 424(b) or Rule
430A), and have been obtained.
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(viii) Such Selling Stockholder has not
taken and will not take, directly or indirectly, any action
designed to or which has constituted, or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Securities of the Company
and, other than as permitted by the Act, such Selling
Stockholder has not distributed, and will not distribute, any
prospectus or other offering material in connection with the
Offered Securities.
(ix) Neither such Selling Stockholder nor
any of its affiliates directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is
under common control with, or has any other association with
(within the meaning of Article I, Section (m) of the By- Laws
of the NASD), any member firm of the NASD.
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 and each
Selling Stockholder agree, severally and not jointly, to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company and each Selling Stockholder, at a purchase price of
$_________per share, that number of Firm Securities (rounded up or down, as
determined by Credit Suisse First Boston Corporation ("CSFBC") in its
discretion, in order to avoid fractions) obtained by multiplying _______Firm
Securities in the case of the Company and the number of Firm Securities set
forth opposite the name of such Selling Stockholder in Schedule A hereto, in
the case of a Selling Stockholder, in each case by a fraction the numerator of
which is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is the total
number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with the Custodian. Each
Selling Stockholder agrees that the shares represented by the certificates held
in custody for the Selling Stockholders under such Custody Agreements are
subject to the interests of the Underwriters hereunder, that the arrangements
made by the Selling Stockholders for such custody are to that extent
irrevocable, and that the obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the death of any
individual Selling Stockholder or the occurrence of any other event, or in the
case of a trust, by the death of any trustee or trustees or the termination of
such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of
whether or not the Custodian shall have received notice of such death or other
event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, at the office of
___________________________, against payment of the purchase price in Federal
(same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to CSFBC drawn to the order of the Company in the
case of 1,000,000 shares Firm Securities and the Custodian in the case of
2,000,000 shares of Firm Securities, at the office of Xxxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000, at 10:00 a.m., New York time, on _____________, or at such
other time not later than seven full business days thereafter as CSFBC and the
Company determine, such time being herein referred to as the "First Closing
Date." The certificates for the Firm Securities so to be delivered will be in
definitive form, in such denominations and registered in such names as CSFBC
requests and will be made available for checking and packaging at the above
office of CSFBC at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholders from time to time not more than 30 days subsequent to
the date of the Prospectus, the Underwriters may purchase all or less than all
of the Optional Securities at the purchase price per Security to be paid for
the Firm
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Securities. The Selling Stockholders agree, severally and not jointly, to sell
to the Underwriters the respective numbers of Optional Securities obtained by
multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Stockholders in Schedule A hereto under the caption
"Number of Optional Securities to be Sold" and the denominator of which is the
total number of Optional Securities (subject to adjustment by CSFBC to
eliminate fractions). Such Optional Securities shall be purchased from each
Selling Stockholder for the account of each Underwriter in the same proportion
as the number of Firm Securities set forth opposite such Underwriter's name
bears to the total number of Firm Securities (subject to adjustment by CSFBC to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by CSFBC to the
Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, at the above
office of CSFBC in New York, against payment of the purchase price therefor in
Federal (same day) funds by official bank check or checks or wire transfer to
an account at a bank acceptable to CSFBC drawn to the order of the Custodian in
the case of 450,000 Optional Securities, at the above office of Xxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP. The certificates for the
Optional Securities being purchased on each Optional Closing Date will be in
definitive form, in such denominations and registered in such names as CSFBC
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office of CSFBC in New
York at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling
Stockholders. The Company agrees with the several Underwriters and the Selling
Stockholders that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file the Prospectus with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and if
consented to by CSFBC, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a
portion of the Offered Securities under the Act but the Effective Time
thereof has not occurred as of such execution and delivery, the
Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on
or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have
been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
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Initial Registration Statement, the Additional Registration Statement
(if any) or the Prospectus and will not effect such amendment or
supplementation without CSFBC's consent; and the Company will also
advise CSFBC promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of
a Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) The Company will comply with the Act, the Exchange
Act and the Rules and Regulations so as to permit the completion of
the distribution of the Offered Securities as contemplated in this
Agreement, each Registration Statement and the Prospectus. If, at any
time when a prospectus relating to the Offered Securities is required
to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the 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 Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of
the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Company will furnish to the Representatives
copies of each Registration Statement (four of which will be signed
and will include all exhibits), each related preliminary prospectus,
and, so long as a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as
CSFBC requests. The Prospectus shall be so furnished on or prior to
3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the Effective Time of
the Initial Registration Statement. All other such documents shall be
so furnished as soon as available. The Company and the Selling
Stockholders will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for the distribution.
(g) During the period of 10 years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such
year; and the Company will furnish to the Representatives (i) as soon
as available, a copy of each report and any definitive proxy statement
of the Company filed with the Commission under the Securities Exchange
Act of
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1934 or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request.
(h) Prior to issuing any press release regarding the
operating results or financial condition with respect to any of the
Company's first three fiscal quarters in any of fiscal years 1998,
1999 or 2000, and prior to filing a Quarterly Report on Form 10-Q
relating to any of such fiscal quarters, to retain KPMG Peat Marwick
LLP or other independent public accountants of recognized national
standing who shall review, in accordance with AICPA Statement on
Auditing Standards No. 71, the Company's unaudited consolidated
financial statements at the end of each such fiscal quarter; provided,
however, that the Company's obligations under this covenant may
terminate after the second quarter of fiscal year 1999 at the
discretion of the Company's Board of Directors if the Company's Board
of Directors determines in good faith that adequate financial controls
are in place.
(i) For a period of 90 days after the date on which the
Offered Securities are first sold by the Underwriters to the public
pursuant to a Registration Statement, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC, except issuances of Securities pursuant to
the conversion or exchange of convertible or exchangeable securities
or the exercise of warrants or options, in each case outstanding on
the date hereof, grants of employee stock options pursuant to the
terms of a plan in effect on the date hereof, issuances of Securities
pursuant to the exercise of such options.
(j) The Company and each Selling Stockholder agree with
the several Underwriters that the Company and such Selling Stockholder
will pay all expenses incident to the performance of the obligations
of the Company and such Selling Stockholder, as the case may be, under
this Agreement, including, without limitation, (a) any filing fees and
other expenses (including fees and disbursements of counsel) in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto, (b) the filing fee incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the NASD of the Offered Securities, (c)
any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities, (d)
any transfer taxes on the sale by the Selling Stockholders of the
Offered Securities to the Underwriters and (e) expenses incurred in
distributing preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) to the Underwriters.
(k) Each Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group on or prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified
by Treasury Department regulations in lieu thereof).
(l) Each Selling Stockholder agrees, for a period of 90
days after the date on which the Offered Securities are first sold by
the Underwriters to the public pursuant to a Registration Statement,
that it will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or
disposal, without the prior written consent of CSFBC.
(m) The Company shall apply the net proceeds of its sale
of the Offered Securities as set forth in the Prospectus.
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(n) The Company and each Selling Stockholder will not
take, directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
securities of the Company.
(o) If at any time during the 25-day period after a
Registration Statement becomes effective or during the period prior to
any Closing Date, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in the
Representatives' reasonable judgment the market price of the
Securities has been or is likely to be materially affected (regardless
of whether such rumor, publication or event necessitates a supplement
to or amendment of the Prospectus), the Company will, after notice
from the Representatives advising the Company to the effect set forth
above, forthwith prepare, consult with the Representatives concerning
the substance of, and disseminate a press release or other public
statement reasonably satisfactory to the Representatives, responding
to or commenting on such rumor, publication or event.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be
purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholders of their obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter,
dated the date of delivery thereof (which, if the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of KPMG Peat Marwick LLP
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial
statements and schedules and summary of earnings examined by
them and included in the Registration Statements comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures
specified by the American Institute of Certified Public
Accountants for a review of interim financial information as
described in Statement of Auditing Standards No. 71, Interim
Financial Information, on the unaudited financial statements
included in the Registration Statements;
(iii) on the basis of the review referred
to in clause (ii) above, a reading of the latest available
interim financial statements of the Company, inquiries of
officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial
statements included in the Registration Statements do
not comply as to form in all material respects with
the applicable accounting requirements of the Act and
the related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements and summary of
earnings for them to be in conformity with generally
accepted accounting principles;
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(B) at the date of the latest
available balance sheet read by such accountants, or
at a subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets, total assets or
stockholders' equity, as compared with amounts shown
on the latest balance sheet included in the
Prospectus; or
(C) for the period from the closing
date of the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, revenues or net operating income in the
total or per share amounts of consolidated income
before extraordinary items or net income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement
but the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such later
date as shall have been consented to by CSFBC. If the Effective Time
of the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time
of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior
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to such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of any
Selling Stockholder, the Company or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company or its subsidiaries which, in the judgment of a majority
in interest of the Underwriters including the Representatives, is
material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange or the
Nasdaq National Market, or any setting of minimum prices for trading
on such exchange, or any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market; (iv)
any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity
or emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion of
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, counsel
for the Company, with respect to subparagraphs (i), (iii) through
(xiv), and (xvi) through (xviii), and additionally, with respect to
subparagraphs (ii), (v), (vi), (xv), (xvii) and (xix) below, an
opinion of [Xxxxxxx XxXxxxx], each dated the Closing Date, to the
effect that:
(i) The Company and Micromuse USA each
has been duly incorporated and is an existing corporation in
good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its
properties and conduct its business as described in the
Registration Statement and the Prospectus; and each of the
Company and Micromuse USA is duly qualified to do business as
a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification; and
the Company has corporate power to enter into this Agreement
and to carry out all the terms and provisions hereof to be
carried out by it; all of the issued and outstanding shares of
capital stock of Micromuse USA have been duly authorized and
validly issued, are to such counsel's knowledge, fully paid
and nonassessable and, to the best knowledge of such counsel,
are owned beneficially by the Company free and clear of any
perfected security interests, any other security interests,
liens, encumbrances, equities or claims;
(ii) Micromuse PLC has been duly
organized and is an existing corporation in good standing
under the laws of its jurisdiction of incorporation, with
corporate power and authority to own its properties and
conduct its business as described in the Registration
Statement and the Prospectus; Micromuse PLC is duly qualified
to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification; all of the issued and outstanding shares of
capital stock of Micromuse PLC have been duly
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authorized and validly issued, are to such counsel's
knowledge, fully paid and nonassessable, and to the best
knowledge of such counsel, are owned beneficially by the
Company free and clear of any perfected security interests,
any other security interests, liens, encumbrances, equities or
claims;
(iii) The Offered Securities delivered on
such Closing Date and all other outstanding shares of the
Common Stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; the
Company has authorized and outstanding capital stock as set
forth under the caption "Capitalization" in the Prospectus as
of the date specified therein; the certificates for the
Offered Securities, assuming they are in the form filed with
the Commission, are in due and proper form; and no stockholder
of the Company has any preemptive rights with respect to the
Securities pursuant to any statute, the Company's Certificate
of Incorporation, By-laws, or to such counsel's knowledge, any
agreement with the Company;
(iv) Except as described in or
contemplated by the Prospectus, to the knowledge of such
counsel, there are no outstanding securities of the Company or
its subsidiaries convertible or exchangeable into or
evidencing the right to purchase or subscribe for any shares
of capital stock of the Company or its subsidiaries and there
are no outstanding or authorized options, warrants or other
securities obligating the Company or its subsidiaries to issue
any shares of its capital stock or any securities convertible
or exchangeable into or evidencing the right to purchase or
subscribe for any shares of such capital stock;
(v) There are no contracts, agreements
or understandings known to such counsel between the Company or
Micromuse PLC and any person granting such person the right to
cause any securities of the Company or Micromuse PLC owned or
to be owned by such person to be registered pursuant to the
Registration Statement filed by the Company under the Act
covering the Offered Securities which have not been fully
satisfied or waived;
(vi) Except as disclosed in the
Prospectus, there are no contracts, agreements or
understandings known to such counsel between the Company or
Micromuse PLC and any person granting such person the right to
require the Company or Micromuse PLC to file a registration
statement under the Act with respect to any securities of the
Company or Micromuse PLC owned or to be owned by such person
or to require the Company or Micromuse PLC to include such
securities in any securities being registered pursuant to any
registration statement filed by the Company or Micromuse PLC
under the Act;
(vii) The Company is not and, after giving
effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940.
(viii) No consent, approval, authorization
or order of, or filing with, any governmental agency or body
or any court is required to be obtained or made by the Company
or any Selling Stockholder for the consummation of the
transactions contemplated by this Agreement or the Custody
Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under
the Act and such as may be required under state securities
laws;
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(ix) The execution, delivery and
performance of this Agreement,[ the Custody Agreement] and the
consummation of the transactions herein or therein
contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such
subsidiary;
(x) The Initial Registration Statement
was declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under the
Act as of the date and time (if determinable) specified in
such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was
included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and,
to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of a Registration Statement or
any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated
under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form
in all material respects with the requirements of the Act and
the Rules and Regulations; such counsel have no reason to
believe that any part of a Registration Statement or any
amendment thereto, as of its effective date or as of such
Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions
in the Registration Statements and Prospectus of statutes,
legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information
required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be describe in a
Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in a Registration Statement
or the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required; 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; and
(xi) This Agreement, [the Power of Attorney
and the Custody Agreement] have been duly authorized, executed
and delivered by the Company;
(xii) All of the Offered Securities have
been duly authorized and accepted for quotation on the Nasdaq
National Market, subject to official notice of issuance;
(xiii) Such counsel does not know of any
legal or governmental proceedings or investigations pending or
threatened to which the Company or any of its subsidiaries is
a party or to which the property of the Company or any of its
subsidiaries is subject that are required to be described in
any Registration Statement or the Prospectus and are not
described therein or any statutes, regulations, contracts or
other documents that are required to be described in any
Registration Statement or the Prospectus or to be filed as
exhibits to any Registration Statement that are not described
therein or filed as required;
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(xiv) The execution and delivery of the
Reorganization Documents was duly authorized by all necessary
corporate (or other) action on the part of the Company and
each Selling Stockholder;
(xv) The execution and delivery of the
Reorganization Documents was duly authorized by all necessary
corporate (or other) action on the part of Micromuse PLC;
(xvi) The execution, delivery and
performance of, and compliance with, the terms of the
Reorganization Documents, did not, at the time of execution,
and do not violate any provision of the Amended and Restated
Certificate of Incorporation or Bylaws of the Company, or, any
provision of any applicable federal, or state law, rule or
regulation;
(xvii) The execution, delivery and
performance of, and compliance with, the terms of the
Reorganization Documents, did not, at the time of execution,
and do not violate any provision of the Amended and Restated
Certificate of Incorporation or Bylaws of the Company, or, any
provision of any applicable United Kingdom rule or regulation;
(xviii) The Company, and each Selling
Stockholder had all corporate power and authority necessary to
execute and deliver the Reorganization Documents, to
consummate the transactions contemplated therein and the
Reorganization Documents constituted a valid and binding
obligation of the Company, and each Selling Stockholder; and
(xix) Micromuse PLC had all corporate
power and authority necessary to execute and deliver the
Reorganization Documents, to consummate the transactions
contemplated therein and the Reorganization Documents
constituted a valid and binding obligation of Micromuse PLC.
(e) The Representatives shall have received the opinion
contemplated in the Power of Attorney executed and delivered by each
Selling Stockholder and an opinion, dated such Closing Date, of
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, counsel
for the Selling Stockholders, to the effect that:
(i) Each Selling Stockholder had valid
and unencumbered title to the Offered Securities delivered by
such Selling Stockholder on such Closing Date and had full
right, power and authority to sell, assign, transfer and
deliver the Offered Securities delivered by such Selling
Stockholder on such Closing Date hereunder; and the several
Underwriters have acquired valid and unencumbered title to the
Offered Securities purchased by them from the Selling
Stockholders on such Closing Date hereunder;
(ii) No consent, approval, authorization
or order of, or filing with, any governmental agency or body
or any court is required to be obtained or made by any Selling
Stockholder for the consummation of the transactions
contemplated by the Custody Agreement, the Power of Attorney
or this Agreement in connection with the sale of the Offered
Securities sold by the Selling Stockholders, except such as
have been obtained and made under the Act and such as may be
required under state securities laws;
(iii) The execution, delivery and
performance of the Custody Agreement, the Power of Attorney,
this Agreement and the consummation of the transactions
therein and herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over any
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Selling Stockholder or any of their properties or any
agreement or instrument to which any Selling Stockholder is a
party or by which any Selling Stockholder is bound or to which
any of the properties of any Selling Stockholder is subject,
or the charter or by-laws of any Selling Stockholder which is
a corporation; and
(iv) The Power of Attorney and related
Custody Agreement with respect to each Selling Stockholder has
been duly authorized, executed and delivered by such Selling
Stockholder and constitute valid and legally binding
obligations of each such Selling Stockholder enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
and
(v) This Agreement has been duly
authorized, executed and delivered by each Selling Stockholder.
(f) The Representatives shall have received from Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the Underwriters, such opinion
or opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
delivered on such Closing Date, the Registration Statement, the
Prospectus and other related matters as the Representatives may
require, and the Selling Stockholders and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx may rely as to the
incorporation of the Company upon the opinion of Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP.
(g) The Representatives shall have received from (i) each
Selling Stockholder, (ii) each person who is a director or executive
officer of the Company and (iii) any other securityholder of the
Company that the Underwriters may request an agreement ("Lock-up
Agreement") dated on or before the date of this Agreement to the
effect that, for a period of 90 days after the date on which the
Offered Securities are first sold by the Underwriters to the public
pursuant to a Registration Statement, such person will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any
shares of Securities, or publicly disclose the intention to make any
such offer, sale, pledge or disposal, without the prior written
consent of CSFBC.
(h) The Representatives shall have received a
certificate, dated such Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that: the representations and
warranties of the Company in this Agreement are true and correct; 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; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission;
the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing
fee in accordance with Rule 111(a) or (b) under the Act, prior to the
time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the respective dates of the most recent financial
statements in the Prospectus, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated
by the Prospectus or as described in such certificate; such officer
has carefully examined each Registration Statement and the Prospectus
and, in his opinion, as of the Effective Date of the Initial
Registration Statement (and, if applicable, the Additional
Registration Statement), the statements contained in the Registration
Statement and the Prospectus were true and correct, and such
Registration Statement and Prospectus
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did not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and since
the Effective Date of the Registration Statement, no event has
occurred which should have been set forth in a supplement to or an
amendment of the Prospectus which has not been so set forth in such
supplement or amendment; and
(i) The Representatives shall have received a letter,
dated such Closing Date, of KPMG Peat Marwick LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to such Closing Date for the purposes
of this subsection.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date
or otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(b) The Selling Stockholders, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Selling Stockholders will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by an Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below and provided, further, that the liability under this
subsection of each Selling Stockholder shall be limited to an amount equal to
the aggregate net proceeds (before deducting expenses) to such Selling
Stockholder from the sale of Securities sold by such Selling Stockholder
hereunder.
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(c) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company and each Selling Stockholder against
any losses, claims, damages or liabilities to which the Company or such Selling
Stockholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company and each Selling Stockholder
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: (i) the last paragraph at the bottom of the cover page concerning
the terms of the offering by the Underwriters, (ii) the legend concerning over-
allotments, stabilizing and passive market making on the inside front cover
page, (iii) the concession and reallowance figures appearing in the
______________paragraph under the caption "Underwriting" and the (iv)
information contained in the_______________paragraph under the caption
"Underwriting."
(d) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under subsection (a), (b) or (c) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a), (b) or (c) above. In case any such
action is brought against any indemnified party and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(e) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or
(c) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters. 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
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to state a material fact relates to information supplied by the Company, the
Selling Stockholders or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (e). Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling
Stockholders under this Section shall be in addition to any liability which the
Company and the Selling Stockholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing
Date, CSFBC may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC, the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders, except as provided in Section 9 (provided that if
such default occurs with respect to Optional Securities after the First Closing
Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and
payment for the Offered Securities. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant
to Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all
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obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of
Section 6(c), the Company and the Selling Stockholders will, jointly and
severally, reimburse the Underwriters for all out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by them in connection
with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representatives, c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment
Banking Department - Transactions Advisory Group, or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 000 Xxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxxxxx X. Xxxxx, or,
if sent to the Selling Stockholders or any of them, will be mailed, delivered
or telegraphed and confirmed to ________________ at_______________ ; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by the Representatives
jointly or by CSFBC will be binding upon all the Underwriters. ______________
will act for the Selling Stockholders in connection with such transactions, and
any action under or in respect of this Agreement taken by __________________
will be binding upon all the Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of
the counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
_____________________________________________
Insert name or names of Selling Stockholders
_____________________________________________
MICROMUSE INC.
By: _________________________________________
Title: ______________________________________
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXX XXXXXX INC.
_________________________________________
_________________________________________
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: ______________________________________
Title: ___________________________________
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SCHEDULE A
Number of
Number of Firm Optional
Securities to be Securities to
Selling Stockholder Sold be Sold
-------------------------------------------------------- ---------------- -------------
Total . . . . . . . . . . . . . . . . . . . . . . . . ---------------- -------------
================ =============
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SCHEDULE B
Number of
Firm Securities
Underwriter to be Purchased
------------------------------------------------------------------------- ---------------
Credit Suisse First Boston Corporation . . . . . . . . . . . . . . . . .
Nationsbanc Xxxxxxxxxx Securities LLC . . . . . . . . . . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
---------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
===============
