EXHIBIT 1.1
7,075,000 Shares
Industri-Matematik International Corp.
Common Stock
($.01 Par Value)
FORM OF UNDERWRITING AGREEMENT
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, 1997
BT Alex. Xxxxx & Sons Incorporated
Deutsche Xxxxxx Xxxxxxxx Inc.
SoundView Financial Group, Inc.
UBS Securities LLC
c/o BT Alex. Xxxxx & Sons Incorporated
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Industri-Matematik International Corp., a Delaware corporation (the
"Company"), and certain stockholders of the Company (the "Selling Stockholders")
propose to sell to you, as the several underwriters (the "Underwriters"), an
aggregate of 7,075,000 shares of the Company's Common Stock, $.01 par value (the
"Firm Shares"), of which 3,500,000 shares will be sold by the Company and
3,575,000 shares will be sold by the Selling Stockholders. The respective
amounts of the Firm Shares to be so purchased by the several Underwriters are
set forth opposite their names in Schedule I hereto, and the respective amounts
to be sold by the Selling Stockholders are set forth opposite their names in
Schedule II hereto. In addition, the Company and Warburg, Xxxxxx Investors, L.P.
(the "Principal Stockholder") propose to sell at the Underwriters' option an
aggregate of up to 1,061,250 additional shares of the Company's Common Stock
(the "Option Shares"). The respective amounts of the Option Shares to be sold by
the Company and the Principal Stockholder are set forth opposite their names in
Schedule III hereto. The Company and the Selling Stockholders are sometimes
referred to herein collectively as the "Sellers."
As the Underwriters, you have advised the Company and the Selling
Stockholders (a) that you are authorized to enter into this Agreement, and (b)
that you are willing, acting severally and not jointly, to purchase the numbers
of Firm Shares set forth opposite your respective names in Schedule I, plus your
pro rata portion of the Option Shares if you elect to exercise the over-
allotment option in whole or in part. The Firm Shares and the Option Shares (to
the extent the aforementioned option is exercised) are herein collectively
called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company and the Selling Stockholders.
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(a) The Company hereby represents and warrants to each of the Underwriters
as follows:
(i) A registration statement on Form S-3 (File No. 333- )
with respect to the Shares has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and the
Rules and Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission under the Act. The Company has complied with the conditions for the
use of Form S-3. Copies of such registration statement, including any
amendments thereto, the preliminary prospectuses (meeting the requirements of
the Rules and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have heretofore been
delivered by the Company to you. Such registration statement, together with any
registration statement filed by the Company pursuant to Rule 462 (b) of the Act,
herein referred to as the "Registration Statement," which shall be deemed to
include all information omitted therefrom in reliance upon Rule 430A and
contained in the Prospectus referred to below, has become effective under the
Act and no post-effective amendment to the Registration Statement has been filed
as of the date of this Agreement. "Prospectus" means (a) the form of prospectus
first filed with the Commission pursuant to Rule 424(b) or (b) the last
preliminary prospectus included in the Registration Statement filed prior to the
time it becomes effective or filed pursuant to Rule 424(a) under the Act that is
delivered by the Company to the Underwriters for delivery to purchasers of the
Shares, together with the term sheet, if any, or abbreviated term sheet filed
with the Commission pursuant to Rule 424(b)(7) under the Act. Each preliminary
prospectus included in the Registration Statement prior to the time it becomes
effective is herein referred to as a "Preliminary Prospectus." Any reference
herein to the Registration Statement, any Preliminary Prospectus or to the
Prospectus shall be deemed to refer to and include any documents incorporated by
reference therein, and, in the case of any reference herein to any Prospectus,
also shall be deemed to include any documents incorporated by reference therein,
and any supplements or amendments thereto, filed with the Commission after the
date of filing of the Prospectus under Rules 424(b) or 430A, and prior to the
termination of the offering of the Shares by the Underwriters.
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(ii) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement. Each of the subsidiaries
of the Company as listed in Exhibit A hereto (collectively, the "Subsidiaries")
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own or lease its properties and conduct its business as
described in the Registration Statement. The Subsidiaries are the only
subsidiaries, direct or indirect, of the Company. The Company and each of the
Subsidiaries are duly qualified to transact business in all jurisdictions in
which the conduct of their business requires such qualification. The outstanding
shares of capital stock of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable and, except for director
qualifying shares, are owned by the Company or another Subsidiary free and clear
of all liens, encumbrances and equities and claims; and no options, warrants or
other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock or ownership
interests in the Subsidiaries are outstanding.
(iii) The outstanding shares of Common Stock of the Company,
including all shares to be sold by the Selling Stockholders, have been duly
authorized and validly issued and, except for shares of Common Stock issued
under the Company's Restricted Stock Program, are fully paid and non-assessable;
the portion of the Shares to be issued and sold by the Company have been duly
authorized and, when issued and paid for as contemplated herein, will be validly
issued, fully paid and non-assessable; and no preemptive rights of stockholders
exist with respect to any of the Shares or the issue and sale thereof. Neither
the filing of the Registration Statement nor the offering or sale of the Shares
as contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the registration of any
shares of Common Stock.
(iv) The information set forth under the caption "Capitalization" in
the Prospectus is true and correct, in all material respects. All of the Shares
conform in all material respects to the description thereof contained in the
Registration Statement. The form of certificates for the Shares conforms in all
material respects to the requirements therefore set forth in the corporate law
of the jurisdiction of the Company's incorporation.
(v) The Commission has not issued an order preventing or suspending
the use of any Prospectus relating to the proposed offering of the Shares, nor
instituted proceedings for that purpose. The Registration Statement contains,
and the Prospectus and any amendments or supplements thereto will contain, all
statements which are required to be stated therein by, and in all material
respects conform or will conform, as the case may be, to the requirements of the
Act and the Rules and Regulations. The documents incorporated by reference in
the Prospectus, at the time filed with the Commission, conformed in all respects
to the requirements of the Securities Exchange Act of 1934 or the Act, as
applicable, and the rules and regulations of the Commission thereunder. The
Registration Statement and any amendment thereto do not contain, and will not
contain, any untrue statement of a material fact and do not omit, and will not
omit, to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any amendments
and supplements thereto do not contain, and will not contain, any untrue
statement of material fact; and do not omit, and will not omit, to state any
material fact required to be stated therein or necessary to make
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the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or omitted from the
Registration Statement or the Prospectus, or any such amendment or supplement,
in reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter, specifically for use in the
preparation thereof.
(vi) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as set forth in the
Registration Statement, present fairly the financial position and the results of
operations and cash flows of the Company and the consolidated Subsidiaries, at
the indicated dates and for the indicated periods. Such financial statements
and related schedules have been prepared in accordance with generally accepted
principles of accounting, consistently applied throughout the periods involved
and all adjustments necessary for a fair presentation of results for such
periods have been made. The summary financial and statistical data included or
incorporated by reference in the Registration Statement presents fairly the
information shown therein and such data has been compiled on a basis consistent
with the financial statements presented therein and the books and records of the
Company. The pro forma financial information included in the Registration
Statement and the Prospectus present fairly the information shown therein, has
been properly compiled on the pro forma bases described therein, and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(vii) Ohrlings Coopers & Xxxxxxx XX, who have certified certain of
the financial statements filed with the Commission as part of, or incorporated
by reference in, the Registration Statement, are independent public
accountants, as required by the Act and the Rules and Regulations.
(viii) There is no action, suit, claim or proceeding pending or, to
the knowledge of the Company, threatened against the Company or any of the
Subsidiaries before any court or administrative agency or otherwise which if
determined adversely to the Company or any of its Subsidiaries might result in
any material adverse change in the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company and of the Subsidiaries taken as a whole or to prevent the
consummation of the transactions contemplated hereby, except as set forth in the
Registration Statement.
(ix) The Company and the Subsidiaries have good and marketable title
to all of the properties and assets reflected in the financial statements (or as
described in the Registration Statement) hereinabove described, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except those reflected
in such financial statements (or as described in the Registration Statement) or
which are not material in amount. The Company and the Subsidiaries occupy their
leased properties under valid and binding leases conforming in all material
respects to the description thereof set forth in the Registration Statement.
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(x) The Company and the Subsidiaries have filed all Federal, State,
local and foreign income tax returns which have been required to be filed and
have paid all taxes indicated by said returns and all assessments received by
them or any of them to the extent that such taxes have become due and are not
being contested in good faith. All tax liabilities have been adequately
provided for in the financial statements of the Company.
(xi) Since the respective dates as of which information is given in
the Registration Statement, as it may be amended or supplemented, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise), or
prospects of the Company and its Subsidiaries taken as a whole, whether or not
occurring in the ordinary course of business, and there has not been any
material transaction entered into or any material transaction that is probable
of being entered into by the Company or the Subsidiaries, other than
transactions in the ordinary course of business and changes and transactions
described in the Registration Statement, as it may be amended or supplemented.
The Company and the Subsidiaries have no material contingent obligations which
are not disclosed in the Company's financial statements which are included in
the Registration Statement as it may be amended and supplemented.
(xii) Neither the Company nor any of the Subsidiaries is or, with the
giving of notice or lapse of time or both, will be, in violation of or in
default under its Charter or By-Laws or under any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party or by which
it, or any of its properties, is bound and which default is of material
significance in respect of the condition, financial or otherwise of the Company
and its Subsidiaries taken as a whole or the business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company and the Subsidiaries taken as a whole. The execution and delivery
of this Agreement and the consummation of the transactions herein contemplated
and the fulfillment of the terms hereof will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument to which the
Company or any Subsidiary is a party, or of the Charter or By-laws of the
Company or any order, rule or regulation applicable to the Company or any
Subsidiary of any court or of any regulatory body or administrative agency or
other governmental body having jurisdiction, except for any such conflicts,
breaches or defaults which, individually or in the aggregate, would not have a
material adverse effect on the Company and the Subsidiaries, taken as a whole.
(xiii) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the Commission,
the National Association of Securities Dealers, Inc. (the "NASD"), or such
additional steps as may be necessary to qualify the Shares for public offering
by the Underwriters under state securities or Blue Sky laws of foreign
securities laws) has been obtained or made and is in full force and effect.
(xiv) The Company and each of the Subsidiaries holds all material
licenses,
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certificates and permits from governmental authorities which are necessary to
the conduct of their businesses; and neither the Company nor any of the
Subsidiaries has infringed, or received any notice of infringement of, nor to
the Company's knowledge will the conduct of the Company's business as described
in the Registration Statement and in the Prospectus infringe, any patents,
patent rights, trade names, trademarks, copyrights or trade secret, which
infringement is material to the business of the Company and the Subsidiaries
taken as a whole. The Company knows of no material infringement by others of
patents, patent rights, trade names, trademarks or copyrights owned by or
licensed to the Company.
(xv) Neither the Company nor, to the Company's knowledge, any of its
affiliates (as that terms is defined under the Act), 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 Common Stock to
facilitate the sale or resale of the Shares.
(xvi) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission thereunder.
(xvii) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xviii) 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.
(xix) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any U.S. "pension plan" (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any U.S. "pension plan" or (ii) Sections 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and each U.S.
"pension plan" for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
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(xx) The Company and each of its Subsidiaries own or possess licenses
or other rights to use all patents, trademarks, service marks, trade names,
copyrights, mask work rights, technology know-how and other intellectual
property rights ("Intellectual Property") necessary to conduct the business now
or proposed to be conducted by the Company and each of its Subsidiaries as
described in the Prospectus, and, except as disclosed in the Prospectus, neither
the Company nor any of its Subsidiaries has received any notice of infringement
of or conflict with (or knows of such infringement of or conflict with) asserted
rights of others with respect to the Intellectual Property which, individually
or in the aggregate, is reasonably likely to result in any material adverse
effect upon the condition, financial or otherwise, of the Company and each of
its Subsidiaries taken as a whole or the earnings, business affairs or
management of the Company and each of its Subsidiaries taken as a whole; and,
except as disclosed in the Prospectus and to the knowledge of the Company and
each of its Subsidiaries, the Company and each of its Subsidiaries do not in the
conduct of their business as now or proposed to be conducted as described in the
Prospectus, infringe or conflict with any Intellectual Property of any third
party, or any discovery, invention, product or process which is the subject of a
patent application filed by any thirty party, known to the Company or any of its
Subsidiaries, where such infringement or conflict is reasonably likely to result
in any material adverse effect upon the condition, financial or otherwise, of
the Company and each of its Subsidiaries taken as a whole or the earnings,
business affairs or management of the Company and each of its Subsidiaries taken
as a whole.
(xxi) The Company has full corporate power and authority to enter
into this Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Company.
(b) Each of the Selling Stockholders severally represents and warrants to
each of the Underwriters as follows:
(i) Such Selling Stockholder now has and at the Closing Date and the
Option Closing Date, as the case may be (as such dates are hereinafter defined),
will have good and marketable title to the Firm Shares and the Option Shares, as
the case may be, to be sold by such Selling Stockholder, free and clear of any
liens, encumbrances, equities and claims, and full right, power and authority to
effect the sale and delivery of such Firm Shares and Option Shares, as the case
may be; and upon the delivery of, against payment for, such Firm Shares and
Option Shares, as the case may be, pursuant to this Agreement, the Underwriters
will acquire good and marketable title thereto, free and clear of any liens,
encumbrances, equities and claims.
(ii) Such Selling Stockholder has full right, power and authority to
execute and deliver this Agreement, the Power of Attorney, and the Custody
Agreement referred to below and to perform its obligations under such Agreements
and has duly authorized, executed and delivered such Agreements. The execution
and delivery of this Agreement and the consummation by such Selling Stockholder
of the transactions herein contemplated and the fulfillment by such Selling
Stockholder of the terms hereof will not require any consent, approval,
authorization, or other order of any court, regulatory body, administrative
agency or other governmental body (except as may be required under the Act,
state securities laws or Blue Sky laws or foreign securities laws) and will not
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default under, the organizational
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documents of such Selling Stockholder, if not an individual, or any indenture,
mortgage, deed of trust or other agreement or instrument to which such Selling
Stockholder is a party, or of any order, rule or regulation applicable to such
Selling Stockholder of any court or of any regulatory body or administrative
agency or other governmental body having jurisdiction, except for any such
conflicts, breaches or defaults which, individually or in the aggregate, would
not have a material adverse effect on the Company and the Subsidiaries, taken as
a whole.
(iii) 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 the stabilization or
manipulation of the price of the Common Stock of the Company and, other than as
permitted by the Act, the Selling Stockholder will not distribute any prospectus
or other offering material in connection with the offering of the Shares.
(iv) Without having undertaken to determine independently the accuracy
or completeness of the representations and warranties of the Company contained
herein, such Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in this Section 1 are
not true and correct in all material respects.
(v) Such Selling Stockholder represents that, without having
undertaken to determine independently the accuracy or completeness of the
information contained in the Registration Statement, such Selling Stockholder is
generally familiar with the Registration Statement and has no knowledge of any
material fact, condition or information not disclosed in the Registration
Statement which has materially and adversely affected or may materially and
adversely affect the business of the Company or any of the Subsidiaries. The
sale of the Shares by such Selling Stockholder pursuant thereto is not prompted
by any material information concerning the Company or any of the Subsidiaries
which is not set forth in the Registration Statement. The information pertaining
to such Selling Stockholder under the captions "Principal and Selling
Stockholders" and "Certain Transactions" included or incorporated by reference
in the Prospectus is complete and accurate in all material respects.
2. Purchase, Sale and Delivery of the Firm Shares.
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(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Company
and the Sellers agree to sell to the Underwriters and each Underwriter agrees,
severally and not jointly, to purchase, at a price of $_____ per share, the
number of Firm Shares set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with Section 9 hereof.
The number of Firm Shares to be purchased by each Underwriter from each Seller
shall be as nearly as practicable in the same proportion to the total number of
Firm Shares being sold by each Seller as the number of Firm Shares being
purchased by each Underwriter bears to the total number of Firm Shares to be
sold hereunder. The obligations of the Company and each of the Selling
Stockholders shall be several and not joint.
(b) Certificates in negotiable form for the total number of the Shares
to be sold hereunder by the Selling Stockholders have been placed in custody
with First National Bank of Boston as custodian (the "Custodian") pursuant to
the Letter of Transmittal and Custody Agreement (the "Custody Agreement")
executed by each Selling Stockholder for delivery of all Firm Shares and any
Option Shares to be sold hereunder by the Selling Stockholders. Each of the
Selling Stockholders specifically agrees that the Firm Shares and any Option
Shares, as the case may be, represented by the certificates held in custody for
the Selling Stockholders under the Custody Agreement 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 terminable by
any act or deed of the Selling Stockholders (or by any other person, firm or
corporation including the Company, the Custodian or the Underwriters) or by
operation of law (including the death of an individual Selling Stockholder or
the dissolution of a Selling Stockholder which is a corporation or partnership)
or by the occurrence of any other event or events, except as set forth in the
Custody Agreement. If any such event should occur prior to the delivery to the
Underwriters of the Firm Shares or the Option Shares hereunder, certificates for
the Firm Shares or the Options Shares, as the case may be, shall be delivered by
the Custodian in accordance with the terms and conditions of this Agreement as
if such event has not occurred. The Custodian is authorized to receive and
acknowledge receipt of the proceeds of sale of the Shares held by it against
delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be made in
immediately available funds by certified or bank cashier's checks drawn to the
order of, or by wire transfer to the account of, the Company for the shares to
be sold by it, and by certified or bank cashier's checks drawn to the order of,
or by wire transfer to the account of, "First National Bank of Boston, as
Custodian" for the shares to be sold by the Selling Stockholders, in each case
against delivery of certificates therefor to the Underwriters. Such payment and
delivery are to be made at the offices of BT Alex. Xxxxx Incorporated, 0 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx, at 10:00 a.m., Baltimore time, on the third
business day after the date of this Agreement in accordance with the Rules and
Regulations, or at such other time and date not later than five business days
thereafter as you and the Company shall agree, such time and date being herein
referred to as the "Closing Date." (As used herein, "business day" means a day
on which the New York Stock Exchange is open for trading and on which banks in
New York are open for business and not permitted by law or executive order to be
closed.) The certificates for the Firm Shares will be delivered in such
denominations and in such registrations as the Underwriters request in writing
not later than the
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second full business day prior to the Closing Date, and will be made available
for inspection by the Underwriters at least one business day prior to the
Closing Date.
(d) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company and the Principal Stockholder hereby grant an option to the several
Underwriters to purchase the Option Shares at the price per share set forth in
the first paragraph of this Section 2. The maximum number of Option Shares to be
sold by the Company and the Principal Stockholder is set forth opposite their
respective names on Schedule III hereto. The option granted hereby may be
exercised in whole or in part by giving written notice (i) at any time before
the Closing Date and (ii) only once thereafter within 30 days after the date of
this Agreement, by you, as the Underwriters, to the Company, the Attorney-if-
Fact, and the Custodian, setting forth the number of Option Shares as to which
the several Underwriters are exercising the option, the names and denominations
in which the Option Shares are to be registered and the time and date at which
such certificates are to be delivered. If the option granted hereby is exercised
in part, the respective number of Option Shares to be sold by the Company and
the Principal Stockholder shall be determined on a pro rata basis in accordance
with the percentages set forth opposite their names on Schedule III hereto,
adjusted by you in such manner as to avoid fractional shares. The time and date
at which certificates for Option Shares are to be delivered shall be determined
by the Underwriters but shall not be earlier than three, nor later than 10, full
business days after the exercise of such option, nor in any event prior to the
Closing Date (such time and date being herein referred to as the "Option Closing
Date"). If the date of exercise of the option is three or more days before the
Closing Date, the notice of exercise shall set the Closing Date as the Option
Closing Date. The number of Option Shares to be purchased by each Underwriter
shall be in the same proportion to the total number of Option Shares being
purchased as the number of Firm Shares being purchased by such Underwriter bears
to the total number of Firm Shares, adjusted by you in such manner as to avoid
fractional shares. The option with respect to the Option Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the Firm
Shares by the Underwriters. You, as Underwriters, may cancel such option at any
time prior to its expiration by giving written notice of such cancellation to
the Company and the Attorney-in-Fact. To the extent, if any, that the option is
exercised, payment for the Option Shares shall be made on the Option Closing
Date in immediately available funds by certified or bank cashier's check drawn
to the order of, or by wire transfer to the account of, the Company for the
Option Shares to be sold by it and to the order of "First National Bank of
Boston, as Custodian" for the Option Shares to be sold by the Principal
Stockholder against delivery of certificates therefor at the offices of BT Alex.
Xxxxx Incorporated, 0 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
(e) If on the Closing Date or Option Closing Date, as the case may be,
any Selling Stockholder fails to sell the Firm Shares or Option Shares which
such Selling Stockholder has agreed to sell, the Company agrees that it will
sell or arrange for the sale of that number of shares of Common Stock to the
Underwriters which represents Firm Shares or the Option Shares, as the case may
be, which such Selling Stockholder has failed to so sell, or such lesser number
as may be requested by the Underwriters.
3. Offering by the Underwriters. It is understood that you, as the
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several Underwriters, are to make
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a public offering of the Firm Shares as soon as you deem it advisable to do so.
The Firm Shares are to be initially offered to the public at the initial public
offering price set forth in the Prospectus. The Underwriters may from time to
time thereafter change the public offering price and other selling terms. To the
extent, if at all, that any Option Shares are purchased pursuant to Section 2
hereof, the Underwriters will offer them to the public on the foregoing terms.
4. Covenants of the Company and the Selling Stockholders.
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(a) The Company covenants and agrees with the several Underwriters
that:
(i) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule 430A of
the Rules and Regulations is followed, to prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form
approved by the Underwriters containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A of
the Rules and Regulations, (B) not file any amendment to the Registration
Statement or supplement to the Prospectus or document incorporated by reference
therein of which the Underwriters shall not previously have been advised and
furnished with a copy or to which the Underwriters shall have reasonably
objected in writing or which is not in compliance with the Rules and Regulations
and (C) file on a timely basis all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
subsequent to the date of the Prospectus and prior to the termination of the
offering of the Shares by the Underwriters.
(ii) The Company will advise the Underwriters promptly (A) when the
Registration Statement or any post-effective amendment thereto shall have become
effective, (B) of receipt of any comments from the Commission, with respect to
the Registration Statement (C) of any request of the Commission for amendment of
the Registration Statement or for supplement to the Prospectus or for any
additional information, and (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the use of
the Prospectus or of the institution of any proceedings for that purpose. The
Company will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the effectiveness of the Registration Statement or the
use of the Prospectus and to obtain as soon as possible the lifting thereof, if
issued.
(iii) The Company will cooperate with the Underwriters in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as the Underwriters may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company will, from time to
time, prepare and file such statements, reports, and other documents, as are or
may be
-11-
required to continue such qualifications in effect for distribution of the
Shares for so long a period as the Underwriters may reasonably request.
(iv) The Company will deliver to, or upon the order of, the
Underwriters, from time to time, as many copies of any Preliminary Prospectus
as the Underwriters may reasonably request. The Company will deliver to, or
upon the order of, the Underwriters during the period when delivery of a
Prospectus is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Underwriters may
reasonably request. The Company will deliver to the Underwriters at or
before the Closing Date, four signed copies of the Registration Statement and
all amendments thereto including all exhibits filed therewith including all
post-effective amendments thereto, if any, filed prior to the Option Closing
Date, and will deliver to the Underwriters such number of copies of the
Registration Statement (including such number of copies of the exhibits filed
therewith that may reasonably be requested), including documents incorporated by
reference therein, and of all amendments thereto, as the Underwriters may
reasonably request.
(v) If during the period in which a Prospectus is required under the
Act to be delivered by an Underwriter or dealer, any event shall occur as a
result of which, in the judgment of the Company or in the reasonable opinion of
the Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, not misleading, or, if
it is necessary at any time to amend or supplement the Prospectus to comply with
any applicable law, the Company promptly will prepare and file with the
Commission an appropriate amendment to the Registration Statement or supplement
to the Prospectus.
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earning
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earning statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations, and will
advise you in writing when such statement has been so made available.
(vii) The Company will, for a period of five years from the Closing
Date, deliver to the Underwriters copies of annual reports and copies of all
other documents, reports and information furnished by the Company to its
stockholders or filed with any securities exchange pursuant to the requirements
of such exchange or with the Commission pursuant to the Act or the Exchange Act.
The Company will deliver to the Underwriters similar reports with respect to
significant subsidiaries, as that term is defined in the Rules and Regulations,
which are not consolidated in the Company's financial statements.
(viii) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other securities convertible into or
exchangeable or exercisable for shares of Common Stock or derivative of Common
Stock (or agreement for such) will be made for a
-12-
period of 90 days after the date of this Agreement, directly or indirectly, by
the Company otherwise than hereunder or with the prior written consent of
BT Alex. Xxxxx Incorporated.
(ix) The shares have been qualified for trading, subject to notice of
issuance, on the Nasdaq National Market.
(x) The Company has caused each executive officer, director and the
stockholders of the Company listed in Exhibit B to this Agreement to furnish to
you, on or prior to the date of this Agreement, a letter or letters, in form and
substance satisfactory to the Underwriters, pursuant to which each such person
shall agree not to offer, sell, sell short or otherwise dispose of any shares of
Common Stock of the Company or other capital stock of the Company, or any other
securities convertible, exchangeable or exercisable for Common Shares or
derivative of Common Shares owned by such person or request the registration for
the offer or sale of any of the foregoing (or as to which such person has the
right to direct the disposition of) for a period of 90 days after the date of
this Agreement, directly or indirectly, except with the prior written consent of
BT Alex. Xxxxx Incorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the
Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Shares in such a manner as would
require the Company or any of the Subsidiaries to register as an investment
company under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Company, a registrar for the
Common Stock.
(xiv) The Company 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.
(b) Each of the Selling Stockholders covenants and agrees with the
several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares
of Common Stock of the Company or other capital stock of the Company or other
securities convertible, exchangeable or exercisable for Common Stock or
derivative of Common Stock owned by the Selling Stockholder or request the
registration for the offer or sale of any of the foregoing (or as to which the
Selling Stockholder has the right to direct the disposition of) will be made for
a period of 90 days after the date of this Agreement, directly or indirectly, by
such Selling Stockholder otherwise than hereunder or with the prior written
consent of BT Alex. Xxxxx Incorporated.
(ii) In order to document the Underwriters' compliance with the
reporting
-13-
and withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to
the transactions herein contemplated, each of the Selling Stockholders agrees to
deliver to you prior to or at the Closing Date a properly completed and executed
United States Treasury Department Form W-8 or W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
(iii) Such 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.
5. Costs and Expenses.
------------------
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Sellers under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting
fees of the Company; the fees and disbursements of counsel for the Company and
the Selling Stockholders; the cost of printing and delivering to, or as
requested by, the Underwriters copies of the Registration Statement, Preliminary
Prospectuses, the Prospectus, this Agreement, the Agreement Among Underwriters,
the Underwriters' Selling Memorandum, the Underwriters' Questionnaire, the
Underwriters' Invitation Letter, the Listing Application, the Blue Sky Survey
and any supplements or amendments thereto; the filing fees of the Commission;
the filing fees and expenses (including legal fees and disbursements) incident
to securing any required review by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Shares; the Listing
Fee of the Nasdaq National Market; and the expenses, including the fees and
disbursements of counsel for the Underwriters, incurred in connection with the
qualification of the Shares under State securities or Blue Sky laws. The
Selling Stockholders have agreed with the Company to bear certain expenses
related to the sale by them of a portion of the Firm Shares or all or a portion
of the Option Shares, as the case may be. To the extent, if at all, that any of
the Selling Stockholders engage special legal counsel (other than Xxxxxxx Xxxx
and Xxxx International) to represent them in connection with this offering, the
fees and expenses of such counsel shall be borne by such Selling Stockholder.
Any transfer taxes imposed on the sale of the Shares to the several Underwriters
will be paid by the Sellers pro rata. The Company agrees to pay all costs and
expenses of the Underwriters, including the fees and disbursements of counsel
for the Underwriters, incident to the offer and sale of directed shares of the
Common Stock by the Underwriters to employees and persons having business
relationships with the Company and its Subsidiaries. The Sellers shall not,
however, be required to pay for any of the Underwriters expenses (other than
those related to qualification under NASD regulation and State securities or
Blue Sky laws) except that, if this Agreement shall not be consummated because
the conditions in Section 6 hereof are not satisfied, or because this Agreement
is terminated by the Underwriters pursuant to Section 11 (b) and (c) hereof,
or by reason of any failure, refusal or inability on the part of the Company or
the Selling Stockholders to perform any undertaking or satisfy any condition of
this Agreement or to comply with any of the terms hereof on their part to be
performed, unless such failure to satisfy said condition or to comply with said
terms be due to the default or omission of any Underwriter, then the Company
shall reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Shares or in
contemplation of
-14-
performing their obligations hereunder; but the Company and the Selling
Stockholders shall not in any event be liable to any of the several Underwriters
for damages on account of loss of anticipated profits from the sale by them of
the Shares.
6. Conditions of Obligations of the Underwriters.
---------------------------------------------
The several obligations of the Underwriters to purchase the Firm
Shares on the Closing Date and the Option Shares, if any, on the Option Closing
Date are subject to the accuracy, as of the Closing Date or the Option Closing
Date, as the case may be, of the representations and warranties of the Company
and the Selling Stockholders contained herein, and to the performance by the
Company and the Selling Stockholders of their covenants and obligations
hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule 424
and Rule 430A of the Rules and Regulations shall have been made, and any request
of the Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Underwriters and
complied with to their reasonable satisfaction. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall have been taken or,
to the knowledge of the Company or the Selling Stockholders, shall be
contemplated by the Commission and no injunction, restraining order, or order of
any nature by a Federal or state court of competent jurisdiction shall have been
issued as of the Closing Date which would prevent the issuance of the Shares.
(b) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Xxxxxxx Xxxx and Xxxx
International, counsel for the Company and the Selling Stockholders, dated the
Closing Date or the Option Closing Date, as the case may be, addressed to the
Underwriters (and stating that it may be relied upon by counsel to the
Underwriters) to the effect that:
(i) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement; each of the non-Swedish
Subsidiaries ("the Non-Swedish Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to own or
lease its properties and conduct its business as described in the Registration
Statement; the Company and each of the Non-Swedish Subsidiaries are duly
qualified to transact business in all jurisdictions in which the conduct of
their business requires such qualification, or in which the failure to qualify
would have a materially adverse effect upon the business of the Company and the
Non-Swedish Subsidiaries taken as a whole; and the outstanding shares of capital
stock of each of the Non-Swedish Subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by the
Company or a Subsidiary; and, to the best of such counsel's knowledge, the
outstanding shares of capital stock of each of the Subsidiaries is owned free
and clear of all liens, encumbrances and equities and claims, and no
-15-
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into any shares of capital
stock or of ownership interests in the Non-Swedish Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding capital stock as set
forth under the caption "Capitalization" in the Prospectus; the authorized
shares of the Company's Common Stock have been duly authorized; the outstanding
shares of the Company's Common Stock, including the Shares to be sold by the
Selling Stockholders, have been duly authorized and validly issued and, except
for shares of Common Stock issued under the Company's Restricted Stock Program,
are fully paid and non-assessable; all of the Shares conform in all material
respects to the description thereof contained in the Prospectus; the
certificates for the Shares, assuming they are in the form filed with the
Commission, are in due and proper form as required by the corporate law of the
State of Delaware; the shares of Common Stock, including the Option Shares, if
any, to be sold by the Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and non-assessable when issued
and paid for as contemplated by this Agreement; and no preemptive rights of
stockholders exist with respect to any of the Shares or the issue or sale
thereof.
(iii) Except as described in or contemplated by the Prospectus, to
the knowledge of such counsel, there are no outstanding securities of the
Company convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and there are no
outstanding or authorized options, warrants or rights of any character
obligating the Company 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 stock; and except as described in the
Prospectus, to the knowledge of such counsel, no holder of any securities of the
Company or any other person has the right, contractual or otherwise, which has
not been satisfied or effectively waived, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of, any of the
Shares or the right to have any Common Shares or other securities of the Company
included in the Registration Statement or the right, as a result of the filing
of the Registration Statement, to require registration under the Act of any
shares of Common Stock or other securities of the Company.
(iv) The Registration Statement has become effective under the Act
and, to the best of the knowledge of such counsel, no stop order proceedings
with respect thereto have been instituted or are pending or threatened under the
Act.
(v) The Registration Statement, all Preliminary Prospectuses, the
Prospectus and each amendment or supplement thereto and document incorporated by
reference therein comply as to form in all material respects with the
requirements of the Act or the Securities Exchange Act of 1934, as applicable,
and the applicable rules and regulations thereunder (except that such counsel
need express no opinion as to the financial statements, related schedules and
other financial or statistical information included or incorporated by reference
therein). The conditions for the use of Form S-3, set forth in the General
Instructions thereto, have been satisfied.
(vi) The statements under the captions "Description of Capital Stock"
and
-16-
"Risk Factors--Shares Eligible for Future Sale" in the Prospectus, insofar as
such statements constitute a summary of documents referred to therein or matters
of law, fairly summarize in all material respects the information called for
with respect to such documents and matters.
(vii) Such counsel does not know of any contracts or documents
required to be filed as exhibits to the Registration Statement or described in
the Registration Statement or the Prospectus which are not so filed or described
as required, and such contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized in all material
respects.
(viii) Such counsel knows of no material legal or governmental
proceedings pending or threatened against the Company or any of the Subsidiaries
except as set forth in the Prospectus.
(ix) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated do not and will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, the Charter or By-laws of the Company, or any agreement or instrument
known to such counsel to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries may be bound.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions herein contemplated
(other than as may be required by the NASD or as required by State securities
and Blue Sky laws or foreign securities laws as to which such counsel need
express no opinion) except such as have been obtained or made, specifying the
same.
(xii) The Company is not, and will not become, as a result of the
consummation of the transactions contemplated by this Agreement, and application
of the net proceeds therefrom as described in the Prospectus, required to
register as an investment company under the 1940 Act.
(xiii) Each Selling Stockholder that is a corporation or partnership
is validly existing as a corporation or partnership, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation or
organization, and is duly qualified to transact business and is in good standing
in each jurisdiction in which such qualification is required, except where the
failure to so qualify or be in good standing would not have a materially adverse
effect upon the business of the Company and the Subsidiaries taken as a whole.
(xiv) Each of this Agreement, the Power of Attorney and the Custody
Agreement has been duly authorized, executed and delivered on behalf of the
Selling Stockholders.
-17-
(xv) Each Selling Stockholder has full legal right, power and
authority, and any approval required by law (other than as required by State
securities and Blue Sky laws as to which such counsel need express no opinion),
to sell, assign, transfer and deliver the portion of the Shares to be sold by
such Selling Stockholder.
(xvi) Each of the Power of Attorney and the Custody Agreement
executed and delivered by each Selling Stockholder is valid and binding.
(xvii) The Underwriters (assuming that they are bona fide
purchasers within the meaning of the Uniform Commercial Code) have acquired good
and marketable title to the Shares being sold by each Selling Stockholder on the
Closing Date, and the Option Closing Date, as the case may be, free and clear of
all liens, encumbrances, equities and claims.
In rendering such opinion, Xxxxxxx Xxxx and Xxxx International may rely as
to matters governed by the laws of states other than Delaware or Federal laws on
local counsel in such jurisdictions reasonably acceptable to the Underwriters
and Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. In addition to the matters set forth
above, such opinion shall also include a statement to the effect that nothing
has come to the attention of such counsel which leads them to believe that (i)
the Registration Statement, at the time it became effective under the Act (but
after giving effect to any modifications deemed to be a part thereof pursuant to
Rule 430A under the Act) and as of the Closing Date or the Option Closing Date,
as the case may be, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations and as
of the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they are made, not misleading (except that such counsel need express
no view as to financial statements, related schedules and other financial or
statistical information therein). With respect to such statement, Xxxxxxx Xxxx
and Xxxx International may state that their belief is based upon the procedures
set forth therein, but is without independent check and verification.
(c) The Underwriters shall have received from Advokatfirman Xxxxx
KB, Swedish counsel for the Company, an opinion, dated the Closing Date or the
Option Closing Date, as the case may be, addressed to the Underwriters (and
stating that it may be relied upon by counsel to the Underwriters) to the effect
that:
(i) Each of the Company's direct and indirect Swedish subsidiaries
(the "Swedish Subsidiaries") has been duly incorporated and is validly existing
in good standing as a corporation under the laws of the Kingdom of Sweden, with
corporate power and authority to own or lease its properties and to conduct its
business as described in the Prospectus; and each of the Swedish Subsidiaries
is duly qualified to transact business in Sweden, except to the extent that the
failure to be so qualified would not have a material adverse effect on the
Company and the Subsidiaries, taken as a whole.
-18-
(ii) The outstanding shares of capital stock of each of the Swedish
Subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Company or a Subsidiary; and, to the best of
such counsel's knowledge, the outstanding shares of capital stock of each of the
Swedish Subsidiaries are owned free and clear of all liens, encumbrances and
equities and claims, and, to the best of such counsel's knowledge, no options,
warrants or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into any shares of capital stock or
of ownership interests in the Swedish Subsidiaries are outstanding.
(iii) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not
contravene any provision of applicable Swedish law or any Nordic language
document or agreement provided by the Company to such counsel to which the
Company or any of the Swedish Subsidiaries is a party (which documents and
agreements (the "Nordic Language Documents") are specifically summarized in the
Review Reports I and II dated _______, 1997 and _______, 1997, respectively,
prepared by such counsel (collectively, the "Review Reports") (it being
understood that the term "Nordic Language Documents" shall not refer to any
document or agreement which according to the Review Reports has not been
reviewed by such counsel), which Review Reports are attached as an appendix to
such counsel's opinion) or, to the best of such counsel's knowledge, any other
agreement or instrument binding upon the Company or any of the Swedish
Subsidiaries that is material to the Company and the Subsidiaries, taken as a
whole, or that would otherwise prejudice the consummation of the transactions
contemplated by this Agreement, or, to the best of such counsel's knowledge, any
judgment, order or decree of any Swedish governmental body, agency or court in
the Kingdom of Sweden having jurisdiction over the Company or any of the Swedish
Subsidiaries; and no consent, approval, authorization, filing or order of, or
qualification with, any Swedish governmental body or agency, is required for the
performance by the Company of its obligations under this Agreement.
(iv) Such counsel does not know of any legal or governmental
proceedings in the Kingdom of Sweden pending or threatened to which the Company
or any of the Swedish Subsidiaries is a party or to which any of the properties
of the Company or any of the Swedish Subsidiaries is subject that is material to
the Company and the Subsidiaries, taken as a whole.
(v) In order to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement in Sweden, it is not necessary that
any document be filed, recorded or enrolled with any public authority,
governmental agency or governmental department of the Kingdom of Sweden.
(vi) Each of the Swedish Selling Stockholders has the legal right and
power, and all authorization and approval required by Swedish law, to enter into
this Agreement, to deposit the Firm Shares sold by him with the Custodian under
the Custody Agreement and to sell, transfer and deliver the Firm Shares sold by
him.
(vii) Each of the Swedish Selling Stockholders has the power to
submit and
-19-
has taken all necessary action to submit, to the non-exclusive jurisdiction of
any United States federal or state court in the County of Baltimore, State of
Maryland (except that the Swedish bankruptcy courts have or may claim exclusive
jurisdiction in respect of all property of each Swedish Selling Stockholder at
the bankruptcy of such Swedish Selling Stockholder) with respect to legal
proceedings in the United States; and there is no provision of Swedish law that
would render service of process effected in the manner set forth in Section 14
hereof invalid with respect to legal proceedings in the United States relating
to or arising under this Agreement and the transactions contemplated hereby.
(viii) Under the laws of the Kingdom of Sweden and under current
practice of courts in the Kingdom of Sweden, (A) the Underwriters would be
permitted to commence proceedings against each Swedish Selling Stockholder in
the competent Swedish courts based on actions under this Agreement, and (B) such
courts in the Kingdom of Sweden would accept jurisdiction over any such action
or proceedings;
(ix) The choice of the law of the State of Maryland as the law
expressed to govern this Agreement is valid and binding on each Swedish Selling
Stockholder, and the courts of the Kingdom of Sweden will give effect to each
such choice of law upon proof of the relevant provisions of such foreign laws,
subject, however, to the qualification that foreign laws will not be applied to
the extent contrary to Swedish public policy and that Swedish law will be
applied in a bankruptcy proceeding in Sweden in respect of, or an execution
against, each Swedish Selling Stockholder;
(x) Under the laws of the Kingdom of Sweden, each Swedish Selling
Stockholder would not be entitled to plead, or cause to be pleaded on its
behalf, sovereign immunity from the jurisdiction of, or the execution or
enforcement of any judgment of, any court of the Kingdom of Sweden or any United
States federal or state court of the County of Baltimore, State of Maryland.
(xi) The Agreement of each Swedish Selling Stockholder under Section 8
of this Agreement does not contravene Swedish public policy;
(xii) The following statements with respect to Swedish law set forth
or incorporated by reference in the Prospectus are accurate in all material
respects: (i) the statements regarding the enforceability of civil liabilities
against Swedish persons under the caption "Risk Factors,Enforceability of U.S.
Judgments against Non-U.S. Officers and Directors;" (ii) the statements under
"Management,Employment Agreements;" and (iii) the statements regarding Swedish
law under "Management,Employee Benefit Plans;" and (iv) the statements regarding
Swedish law under "Business-Employees."
(xiii) Such counsel has reviewed the Nordic Language Documents and
has prepared and delivered to you the Review Reports, which set forth a brief
summary of each such Nordic Language Document; such summaries completely and
accurately state the subject matter of such Nordic Language Documents and do not
misstate or omit to state any material facts; such counsel has prepared and
delivered to you English language translations of certain material agreements
and documents (which agreements and documents are set forth in the Review
Reports) and such translations are fair and accurate in all material respects;
and
-20-
(xiv) The formation of the Company and the transfers to the Company
of all issued and outstanding share capital of Industri-Matematik A.B. did not
subject the Company or any of the Subsidiaries to any tax liability under the
laws of the Kingdom of Sweden.
In giving such opinion, such counsel may state that it has not investigated
the laws of any jurisdiction other than the Kingdom of Sweden as they stand and
have been interpreted in published case law of the courts in the Kingdom of
Sweden as of the date of such opinion, and that it does not express or imply an
opinion on the laws of any jurisdiction other than the Kingdom of Sweden.
(d) The Underwriters shall have received from Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, P.C., counsel for the Underwriters, an opinion dated the
Closing Date or the Option Closing Date, as the case may be, substantially to
the effect specified in subparagraphs (ii), (iii) and (iv) of Paragraph (b) of
this Section 6, and that the Company is a duly organized and validly existing
corporation under the laws of the State of Delaware. In rendering such opinion
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. may rely as to all matters governed other
than by the laws of the States of California and Delaware or Federal laws on the
opinion of counsel referred to in Paragraphs (b) and (c) of this Section 6. In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that (i) the Registration Statement, or any
amendment thereto, as of the time it became effective under the Act (but after
giving effect to any modifications incorporated therein pursuant to Rule 430A
under the Act) as of the Closing Date or the Option Closing Date, as the case
may be, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (ii) the Prospectus, or any supplement thereto, on
the date it was filed pursuant to the Rules and Regulations and as of the
Closing Date or the Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact, necessary in
order to make the statements, in the light of the circumstances under which they
are made, not misleading (except that such counsel need express no view as to
financial statements, related schedules and other financial or statistical
information therein). With respect to such statement, Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, P.C. may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(e) The Underwriters shall have received at or prior to the Closing
Date from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. a memorandum or summary, in
form and substance satisfactory to the Underwriters with respect to the
qualification for offering and sale by the Underwriters of the Shares under the
State securities or Blue Sky laws of such jurisdictions within the United States
as the Underwriters may reasonably have designated to the Company.
(f) The Underwriters shall have received, on each of the dates
hereof, the Closing
-21-
Date and (i) on the date of this Agreement, a letter, dated the date hereof,
from Ohrlings Coopers & Xxxxxxx XX addressed to the Underwriters confirming
that they are independent certified public accountants within the meaning of the
Securities Act and the applicable published Rules and Regulations for the
respective periods reported on by such firm, and stating, on the basis of
performing the procedures set forth in the letter signed by such firm and
carried out through a date not more than five days prior to the date hereof, the
conclusions and findings of such firm with respect to the financial information
and other matters covered by its letter delivered to the Underwriters
concurrently with the execution of this Agreement, and (ii) on the Closing Date
or the Option Closing Date, as the case may be, a signed letter from Ohrlings
Coopers & Xxxxxxx, XX dated the date hereof, the Closing Date or the Option
Closing Date, as the case may be, which shall confirm, on the basis of a review
in accordance with the procedures set forth in the letter signed by such firm
and dated and delivered to the Underwriters on the date hereof, that nothing
has come to their attention during the period from the date five days prior to
the date hereof, to a date not more than five days prior to the Closing Date or
the Option Closing Date, as the case may be, which would require any change in
their letter dated the date hereof if it were required to be dated and delivered
on the Closing Date or the Option Closing Date, as the case may be. All such
letters shall be in form and substance satisfactory to the Underwriters.
(g) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer and the Chief Financial Officer of the Company to the
effect that, as of the Closing Date or the Option Closing Date, as the case may
be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the Act and
no stop order suspending the effectiveness of the Registration Statement has
been issued, and no proceedings for such purpose have been taken or are, to his
knowledge, contemplated by the Commission;
(ii) The representations and warranties of the Company contained in
Section 1 hereof are true and correct as of the Closing Date or the Option
Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to Rules 424 or
430A under the Act have been made;
(iv) He or she has carefully examined the Registration Statement and
the Prospectus and, in his or her opinion, as of the effective date of the
Registration Statement, the statements contained in the Registration Statement
were true and correct, and such Registration Statement and Prospectus 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;
-22-
(v) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, there has not been any material
adverse change or any development involving a prospective material adverse
change in or affecting the condition, financial or otherwise, of the Company and
its Subsidiaries taken as a whole or the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise) or
prospects of the Company and the Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business; and
(vi) He or she does not know of any litigation instituted or
threatened against the Company of a character required to be disclosed in the
Registration Statement which is not so disclosed; he or she does not know of any
material contract required to be filed as an exhibit to the Registration
Statement which is not so filed.
(h) The Company and the Selling Stockholders shall have furnished to
the Underwriters such further certificates and documents confirming the
representations and warranties, covenants and conditions contained herein and
related matters as the Underwriters may reasonably have requested.
(i) The Firm Shares and Option Shares, if any, have been approved for
designation upon notice of issuance on the Nasdaq National Market.
(j) The Lockup Agreements described in Section 4(i)(x) are in full
force and effect.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Underwriters and to Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, P.C., counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Underwriters by notifying the Company and the Selling Stockholders of such
termination in writing or by telegram at or prior to the Closing Date or the
Option Closing Date, as the case may be. In such event, the Selling
Stockholders, the Company and the Underwriters shall not be under any obligation
to each other (except to the extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Sellers. The obligations of the
--------------------------------------------
Sellers to sell and deliver the portion of the Shares required to be delivered
as and when specified in this Agreement are subject to the conditions that at
the Closing Date or the Option Closing Date, as the case may be, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
8. Indemnification.
---------------
(a) The Company and the Selling Stockholders, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter
-23-
within the meaning of the Act, against any losses, claims, damages or
liabilities to which such Underwriter or any such controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and will reimburse each Underwriter and
each such controlling person upon demand for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in connection
with investigating or defending any such loss, claim, damage or liability,
action or proceeding or in responding to a subpoena or governmental inquiry
related to the offering of the Shares, whether or not such Underwriter or
controlling person is a party to any action or proceeding; provided, however,
that the Company and 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, or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or through the
Underwriters specifically for use in the preparation thereof; provided, further,
that each Selling Stockholder shall be liable under this Section 8(a) only 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, or omission or
alleged omission, made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Company by such
Selling Stockholder specifically for use in the preparation thereof. In no
event, however, shall the liability of any Selling Stockholder for
indemnification under this Section 8(a) exceed the net proceeds received by such
Selling Stockholder from the Underwriters in the offering. In addition, no
Selling Stockholder shall be liable under the indemnity agreement contained in
this paragraph unless and until you, as the Underwriters, have made written
demand on the Company for payment under this paragraph and the amount specified
in such demand is not paid in full by the Company within 30 days after receipt
of the demand by the Company. This indemnity agreement will be in addition to
any liability which the Company or the Selling Stockholders may otherwise have.
(b) Each Underwriter severally and not jointly will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, the Selling Stockholders, and each person, if
any, who controls the Company or the Selling Stockholders within the meaning of
the Act, against any losses, claims, damages or liabilities to which the Company
or any such director, officer, Selling Stockholder or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or (ii) 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 the
light of the circumstances under which they were made; and will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, Selling Stockholder or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that each Underwriter will be liable in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Underwriters
specifically for use in the preparation thereof. This
-24-
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 8(a) or (b). In case any
such proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party and
shall pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing,
the indemnifying party shall pay as incurred (or within 30 days of presentation)
the fees and expenses of the counsel retained by the indemnified party in the
event (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them, or (iii) the indemnifying party shall have failed to assume the defense
and employ counsel acceptable to the indemnified party within a reasonable
period of time after notice of commencement of the action. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(a) and by the Company and the Selling
Stockholders in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. In addition, the indemnifying party will not,
without the prior written consent of the indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding of which indemnification may be sought hereunder (whether
or not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party
-25-
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) 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 Shares.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits 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, (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total 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,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Selling Stockholders on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 8(d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8(d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter and (ii) 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 Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified
-26-
party is entitled to indemnification or contribution under this Section 8 shall
be paid by the indemnifying party to the indemnified party as such losses,
claims, damages, liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section 8 and the representations and
warranties of the Company set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the
Company, its directors or officers or any persons controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter, or to the
Company, its directors or officers, or any person controlling the Company, shall
be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. Default by Underwriters. If on the Closing Date or the Option Closing
-----------------------
Date, as the case may be, any Underwriter shall fail to purchase and pay for the
portion of the Shares which such Underwriter has agreed to purchase and pay for
on such date (otherwise than by reason of any default on the part of the Company
or a Selling Stockholder), you, as the Underwriters, shall use your best efforts
to procure within 36 hours thereafter one or more of the other Underwriters, or
any others, to purchase from the Company and the Selling Stockholders such
amounts as may be agreed upon and upon the terms set forth herein, the Firm
Shares or Option Shares, as the case may be, which the defaulting Underwriter or
Underwriters failed to purchase. If during such 36 hours you, as such
Underwriters, shall not have procured such other Underwriters, or any others, to
purchase the Firm Shares or Option Shares, as the case may be, agreed to be
purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of shares with respect to which such default shall occur does
not exceed 10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the other Underwriters shall be obligated, severally, in proportion to
the respective numbers of Firm Shares or Option Shares, as the case may be,
which they are obligated to purchase hereunder, to purchase the Firm Shares or
Option Shares, as the case may be, which such defaulting Underwriter or
Underwriters failed to purchase, or (b) if the aggregate number of shares of
Firm Shares or Option Shares, as the case may be, with respect to which such
default shall occur exceeds 10% of the Firm Shares or Option Shares, as the case
may be, covered hereby, the Company and the Selling Stockholders or you as
Underwriters will have the right, by written notice given within the next 36-
hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the non-defaulting Underwriters or of the
Company or of the Selling Stockholders except to the extent provided in Section
8 hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 9, the Closing Date or Option Closing Date, as the case
may be, may be postponed for such period, not exceeding seven days, as you, as
Underwriters, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 9
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. Notices. All communications hereunder shall be in writing and, except
-------
as otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the Underwriters, to Alex. Xxxxx &
Sons Incorporated, 2-6 Austin Friars, 0xx Xxxxx, Xxxxxx, XX0X 0XX,
-27-
Attention: Xxxxxxx Xxxxxxxx with a copy to Alex. Xxxxx & Sons Incorporated, 000
Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. Attention: General Counsel; if
to the Company or the Selling Stockholders, to Industri-Matematik International
Corp., Xxxxxxxxxx 00-00, X.X. Xxx 0000, 0-000 00 Xxxxxxxxx, Xxxxxx, with a copy
to Xxxxxxx Xxxx and Xxxx International, Hasilwood House, 00 Xxxxxxxxxxx, Xxxxxx,
XX0X 0XX, Xxxxxxx, Attention: Xxxxxxxxxxx X. Grew, Esq.; and a copy to
Xxxxxxxxxx Xxxxx & Xxxxxxxx, LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.
11. Termination. This Agreement may be terminated by you by notice to the
-----------
Sellers as follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale by notice to the Underwriters, or (ii) 11:30 a.m. on
the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company and its Subsidiaries taken as
a whole or the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as a whole, whether or not arising in the ordinary course
of business, (ii) any outbreak or escalation of hostilities or declaration of
war or national emergency or other national or international calamity or crisis
or change in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in your reasonable judgment, make it
impracticable to market the Shares or to enforce contracts for the sale of the
Shares, or (iii) suspension of trading in securities generally on the New York
Stock Exchange or the American Stock Exchange or limitation on prices (other
than limitations on hours or numbers of days of trading) for securities on
either such Exchange, (iv) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects or
may materially and adversely affect the business or operations of the Company,
(v) declaration of a banking moratorium by United States or New York State
authorities, (vi) the suspension of trading of the Company's common stock by the
Commission or the NASD on the Nasdaq National Market, or (vii) the taking of any
action by any governmental body or agency in respect of its monetary or fiscal
affairs which in your reasonable opinion has a material adverse effect on the
securities markets in the United States; or
(c) as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company, as
to any obligation of the Underwriters to purchase the Option Shares, upon the
occurrences at any time prior to the Option Closing Date of any of the events
described in subparagraph (b) above or as provided in Sections 6 and 9 of this
Agreement.
-28-
12. Successors. This Agreement has been and is made solely for the
----------
benefit of the Underwriters, the Company and the Selling Stockholders and their
respective successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign merely because
of such purchase.
13. Information Provided by Underwriters. The Company, the Selling
------------------------------------
Stockholders and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company for
inclusion in any Prospectus or the Registration Statement consists of the
information set forth in the last paragraph on the front cover page (insofar as
such information relates to the Underwriters), legends required by Item 502(d)
of Regulation S-K under the Act and the information in the third, seventh and
eighth paragraph under the caption "Underwriting."
14. Submission to Jurisdiction. The Swedish Selling Stockholder hereby
--------------------------
agrees to submit to the non-exclusive jurisdiction of any United States federal
or state court in the County of Baltimore, State of Maryland with respect to
legal proceedings in the United States relating to or arising under this
Agreement and the transactions contemplated hereby. Each of the Swedish Selling
Stockholders has designated and appointed Xxxxxxxxxx Xxxxx & Xxxxxxxx, LLP,
currently having its address at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as its authorized agent upon which process may be s erved in any legal
proceeding relating to or arising out of this Agreement or the transactions
contemplated hereby which may be instituted in any United States federal or
state court in the County of Baltimore, State of Maryland. Each of the Swedish
Share Selling Stockholders agree that service of process upon said Xxxxxxxxxx
Xxxxx & Xxxxxxxx, LLP shall be deemed in every respect effective service of
process upon the Firm Share Selling Stockholder in any such legal proceeding.
Each of the Swedish Selling Stockholders represents and warrants that said
Xxxxxxxxxx Xxxxx & Xxxxxxxx, LLP has agreed to act as said agent for service of
process. Each of the Swedish Selling Stockholders further agrees to take any
and all action, including the execution and filing of any and all documents and
instruments, as may be necessary to continue such designation and appointment of
said Xxxxxxxxxx Xxxxx & Xxxxxxxx, LLP in full force and effect so long as this
Agreement shall remain in full force and effect. Notwithstanding the foregoing,
any action relating to or arising under this Agreement or the transactions
contemplated hereby may be instituted by any Underwriter or any person
controlling any Underwriter in any competent court in Sweden.
Each of the Swedish Selling Stockholders hereby irrevocably waives, to the
fullest extent permitted by applicable law, all immunity (whether on the basis
of sovereignty or otherwise) from jurisdiction, attachment (both before and
after judgment) and execution to which it might otherwise be entitled in any
legal proceeding which may be instituted in any United States federal or state
court in The County of Baltimore, State of Maryland or in any other country or
jurisdiction by any Underwriter or any person controlling any Underwriter, and
the Company will not raise or claim or cause to be pleaded any such immunity at
or in respect of any such legal proceeding.
-29-
15. Miscellaneous. The reimbursement, indemnification and contribution
-------------
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers, and (c) delivery of and payment for
the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of Maryland, as applied to agreements among Maryland
residents entered into and to be performed entirely within Maryland, without
reference to principles of conflict of laws or choice of laws.
-30-
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates 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,
INDUSTRI-MATEMATIK INTERNATIONAL CORP.
By:
--------------------------------------------
Xxxx-Xxxxx Xxxxxxxx, Vice President,
Finance and Chief Financial Officer
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co., Inc.
its General Partner
By:
--------------------------------------------
Managing Director
SELLING STOCKHOLDERS LISTED ON
SCHEDULE II
By:
--------------------------------------------
Attorney-in-Fact
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
BT ALEX. XXXXX INCORPORATED
DEUTSCHE XXXXXX XXXXXXXX INC.
SOUNDVIEW FINANCIAL GROUP, INC.
UBS SECURITIES LLC
By: BT Alex. Xxxxx Incorporated
By:
--------------------------------
Authorized Officer
-31-
SCHEDULE I
Schedule of Underwriters
------------------------------------------------------------------
UNDERWRITER NUMBER OF FIRM SHARES
TO BE PURCHASED
BT Alex. Xxxxx Incorporated............
Deutsche Xxxxxx Xxxxxxxx Inc...........
Soundview Financial Group, Inc.........
UBS Securities LLC.....................
------------------------------------------------------------------
TOTAL 7,075,000
==============
====
SCHEDULE II
Schedule of Selling Stockholders
Number of Firm Shares
Selling Stockholder to be Sold
------------------- ---------------------
Warburg, Xxxxxx Investors, L.P........... 3,500,000
Stig G. Durlow........................... 35,000
Xxxx-Xxxxx Xxxxxxxx...................... 15,000
Mats Lillienberg......................... 10,000
Xxxxx Xxxxxxx............................ 15,000
---------
Total 3,575,000
SCHEDULE III
Schedule of Option Shares
Maximum Number Percentage of
of Option Shares Total Number of
Name of Seller to be Sold Option Shares
-------------- ---------------- ---------------
Industri-Matematik International 530,625 50%
Corp.
Warburg, Xxxxxx Investors, L.P. 530,625 50%
--------- ---
Total 1,061,250 100%
EXHIBIT A
List of Subsidiaries
EXHIBIT B
Lockup Agreements
