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EXHIBIT 1.2
HMT TECHNOLOGY CORPORATION
1,500,000 Shares
Common Stock
($0.001 par value)
International Underwriting Agreement
London, England
August __, 1997
Salomon Brothers International Limited
Alex. Xxxxx & Sons International
Xxxxxxxxx & Xxxxx LLC
Xxxxxxxxx, Xxxxxxxx & Company LLC
As International Representatives of the several
International Underwriters,
c/o Salomon Brothers International Limited
Victoria Plaza
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX XXXXXXX
Ladies and Gentlemen:
HMT Technology Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule I hereto (the
"International Underwriters"), for whom you (the "International
Representatives") are acting as representatives, 150,000 shares of Common Stock,
$0.001 par value ("Common Stock"), of the Company, and the persons named in
Schedule II hereto (the "Selling Stockholders") propose to sell to the
International Underwriters 1,350,000 shares of Common Stock (said shares to be
issued and sold by the Company and shares to be sold by the Selling Stockholders
collectively being hereinafter called the "International Underwritten
Securities"). The Company and the Selling Stockholders also propose to grant to
the International Underwriters an option to purchase up to 225,000 additional
shares of Common Stock (the "International Option Securities"; the International
Option Securities, together with the International Underwritten Securities,
being hereinafter called the "International Securities"). It is understood that
the Company and the Selling Stockholders are concurrently entering into a U.S.
Underwriting Agreement dated the date hereof (the "U.S. Underwriting Agreement")
providing for the sale by the Company, Alex. Xxxxx & Sons Incorporated,
Xxxxxxxxx & Xxxxx LLC and Xxxxxxxxx, Xxxxxxxx & Company and the Selling
Stockholders of an aggregate of 850,000 shares of Common Stock (said shares to
be sold by the Company and the Selling Stockholders
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pursuant to the U.S. Underwriting Agreement being hereinafter called the "U.S.
Underwritten Securities"), in the United States and Canada through arrangements
with certain underwriters in the United States and Canada (the "U.S.
Underwriters"), for whom Salomon Brothers International Limited, Alex. Xxxxx &
Sons Incorporated, Xxxxxxxxx & Xxxxx LLC and Xxxxxxxxx, Xxxxxxxx & Company are
acting as representatives (the "Representatives"), and providing for the grant
to the U.S. Underwriters of an option to purchase from the Company and the
Selling Stockholders up to 1,275,000 additional shares of Common Stock (the
"U.S. Option Securities"; the U.S. Option Securities, together with the U.S.
Underwritten Securities, being hereinafter called the "U.S. Securities" and the
International Securities, together with the U.S. Securities, being hereinafter
called the "Securities"). It is further understood and agreed that the U.S.
Underwriters and the International Underwriters have entered into an Agreement
Between U.S. Underwriters and International Underwriters dated the date hereof
(the "Agreement Between U.S. Underwriters and International Underwriters"),
pursuant to which, among other things, the International Underwriters may
purchase from the U.S. Underwriters a portion of the U.S. Securities to be sold
pursuant to the U.S. Underwriting Agreement and the U.S. Underwriters may
purchase from the International Underwriters a portion of the International
Securities to be sold pursuant to the International Underwriting Agreement. To
the extent there are no additional International Underwriters listed on Schedule
I other than you, the term International Representatives as used herein shall
mean you, as International Underwriters, and the terms International
Representatives and International Underwriters shall mean either the singular or
plural as the context requires. Any reference herein to the Registration
Statement, a Preliminary Prospectus or a Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the Effective Date of the Registration
Statement or the issue date of such Preliminary Prospectus or Prospectus, as the
case may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or Prospectus "supplement" with respect shall be deemed to refer to
and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of any
Preliminary Prospectus or Prospectus, as the case may be, deemed to be
incorporated therein by reference.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with,
each International Underwriter as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in Section 17 hereof.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933, as amended (the "Act") and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement
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(file number 333-32025) on Form, including related preliminary
prospectuses, for the registration under the Securities Act of 1933
(the "Act") of the offering and sale of the Securities. The Company
may have filed one or more amendments thereto, including the related
preliminary prospectuses, each of which has previously been furnished
to you. The Company will next file with the Commission either (A)
prior to the Effective Date of such registration statement, a further
amendment to such registration statement (including the form of final
prospectus) or (B) after the Effective Date of such registration
statement, final prospectuses in accordance with Rules 430A and
424(b)(1) or (4). In the case of clause (B), the Company has included
in such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Prospectuses. As filed, such amendment and form of final
prospectuses, or such final prospectuses, shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the International Representatives shall agree to
a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained
in the latest International Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
It is understood that two forms of prospectus are to be used
in connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons, and one form of prospectus
relating to the International Securities, which are to be offered and
sold to persons other than United States and Canadian Persons. The two
forms of prospectus are identical except for the outside front cover
page, the discussion under the heading "Underwriting" and the outside
back cover page. Such form of prospectus relating to the U.S.
Securities as first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is made, such form of
prospectus included in the Registration Statement at the Effective
Date, is hereinafter called the "U.S. Prospectus"; such form of
prospectus relating to the International Securities as first filed
pursuant to Rule 424(b) after the Execution Time or, if no filing
pursuant to Rule 424(b) is made, such form of prospectus included in
the Registration Statement at the Effective Date, is hereinafter called
the "International Prospectus"; and the U.S. Prospectus and the
International Prospectus are hereinafter collectively called the
"Prospectuses".
(ii) On the Effective Date, the Registration Statement
did or will, and when the Prospectuses are first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which shares sold in respect of the International
Underwriters' over-allotment option are purchased, if
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such date is not the Closing Date (a "Settlement Date"), each
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; on the Effective Date and at
the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective
Date, each Prospectus, if not filed pursuant to Rule 424(b), did or
will not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date and any Settlement Date, each Prospectus (together
with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the
Prospectuses (or any supplement thereto) in reliance upon and in
conformity with information furnished herein or in writing to the
Company by or on behalf of any International Underwriter through the
International Representatives specifically for inclusion in the
Registration Statement or the Prospectuses (or any supplement
thereto).
(iii) Each of the Company and its subsidiary, HMT Barbados
FSC Ltd., a Barbados West Indies Company (the "Subsidiary") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction wherein it owns or leases
material properties or conducts material business and where the
failure to be so qualified would, individually or in the aggregate,
have a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiary, taken as a whole, whether or not arising from
transactions in the ordinary course of business; to the best of the
Company's knowledge, no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification; each of
the Company and the Subsidiary is in possession of and operating in
compliance with all authorizations, licenses, certificates, consents,
orders and permits from state, federal and other regulatory
authorities which are material to its business, all of which are valid
and in full force and effect; neither the Company nor the Subsidiary
is in violation of its respective charter or bylaws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any material bond, debenture, note
or other evidence of indebtedness, or in any material lease,
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contract, indenture, mortgage, deed of trust, loan agreement,
joint venture or other agreement or instrument to which the Company or
the Subsidiary is a party or by which either of them or any of their
properties may be bound; and neither the Company nor the Subsidiary is
in material violation of any law, order, rule, regulation, writ,
injunction, judgment or decree of any court, government or
governmental agency or body, domestic or foreign, having jurisdiction
over the Company or any of its properties. The Company does not own or
control, directly or indirectly, any corporation, association or other
entities other than the Subsidiary, which is not a "Significant
Subsidiary" (as such term is defined in Regulation S-X of the Act).;
(iv) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Prospectuses, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(v) The Company's authorized equity capitalization is as
set forth in the Prospectuses; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Prospectuses; the outstanding shares of Common Stock have been
duly and validly authorized and issued and are fully paid and
nonassessable; the Securities being sold hereunder have been duly and
validly authorized, and, when issued and delivered to and paid for by
the Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the certificates for the Securities are in valid and
sufficient form; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to subscribe
for the Securities; and, except as set forth in the Prospectuses, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding. The description of the
Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted and exercised
thereunder, set forth in the Final Memorandum, accurately and fairly
presents the information required to be shown with respect to such
plans, arrangements, options and rights.
(vi) There is no pending or, to the knowledge of the
Company, threatened action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving
the Company or the Subsidiary or either of their property of a
character required to be disclosed in the
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Registration Statement which is not adequately disclosed in the
Prospectuses, and there is no franchise, contract or other document of
a character required to be described in the Registration Statement or
Prospectuses, or to be filed as an exhibit thereto, which is not
described or filed as required."
(vii) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms.
(viii) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectuses, will not be an "investment
company" as defined in the Investment Company Act;
(ix) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the International Underwriters in the
manner contemplated herein and in the Prospectuses;
(x) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or the Subsidiary pursuant
to, (i) the charter or by-laws of the Company or the Subsidiary or (ii)
the terms of any material indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or the
Subsidiary is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company or the Subsidiary of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or the
Subsidiary or any of their properties.
(xi) No holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement, except as have been waived in writing.
(xii) The consolidated financial statements and schedules
of the Company and its consolidated subsidiaries included in the
Prospectuses and the Registration Statement present fairly in all
material respects the financial condition,
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results of operations and cash flows of the Company as of the
dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and the rules and
regulations thereunder and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
The selected financial data set forth under the caption "Selected
Consolidated Financial Data" in the Prospectuses and Registration
Statement fairly present, on the basis stated in the Prospectuses and
the Registration Statement, the information included therein.
(xiii) The Company owns or has obtained licenses for the
patents, patent applications, trade and service marks, trade secrets
and other intellectual properties referenced or described in the
Prospectuses as being owned by or licensed to it (collectively, the
"Intellectual Property"). Except as set forth in the Prospectuses under
the caption "Risk Factors - Intellectual Property and Proprietary
Rights," (a) to the Company's knowledge, there are no rights of third
parties to any such Intellectual Property; (b) there is no pending or,
to the Company's knowledge, threatened action, suit, proceeding or
claim by others challenging the Company's rights in or to any such
Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (c) there is no
pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
such Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (d) there is no
pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any other
fact which would form a reasonable basis for any such claim; (e) to the
Company's knowledge, there is no U.S. patent or published U.S. patent
application which contains claims that dominate or may dominate any
Intellectual Property described in the Prospectus as being owned by or
licensed to the Company or that interferes with the issued or pending
claims of any such Intellectual Property; and (f) there is no prior art
of which the Company is aware that may render any U.S. patent held by
the Company invalid or any U.S. patent application held by the Company
unpatentable which has not been disclosed to the U.S. Patent and
Trademark Office. Each of the Company and the Subsidiary owns the
Intellectual Property or has the rights to the Intellectual Property
that is necessary to conduct its business as described in the
Prospectuses.
Any certificate signed by any officer of the Company
and delivered to the International Representatives or counsel for the
International Underwriters in connection with the offering of the
Securities shall be deemed a representation and
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warranty by the Company, as to matters covered thereby, to each
International Underwriter.
(b) Each Selling Stockholder, severally and not jointly,
represents and warrants to, and agrees with, each International Underwriter
that:
(i) Such Selling Stockholder is the lawful owner of the
International Securities to be sold by such Selling Stockholder
hereunder and upon sale and delivery of, and payment for, such
International Securities, as provided herein, such Selling Stockholder
will convey good and marketable title to such International Securities,
free and clear of all liens, encumbrances, equities and claims
whatsoever.
(ii) 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, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the International Securities and has not
effected any sales of shares of Common Stock which, if effected by the
issuer, would be required to be disclosed in response to Item 701 of
Regulation S-K.
(iii) Certificates in negotiable form for such Selling
Stockholder's International Securities have been placed in custody, for
delivery pursuant to the terms of this Agreement, under a Custody
Agreement duly authorized, executed and delivered by such Selling
Stockholder, in the form heretofore furnished to you (the "Custody
Agreement") with Boston EquiServe Limited Partnership as Custodian (the
"Custodian"); the International Securities represented by the
certificates so held in custody for such Selling Stockholder are
subject to the interests hereunder of the International Underwriters,
and the Company and the other Selling Stockholders; the arrangements
for custody and delivery of such certificates, made by such Selling
Stockholder hereunder and under the Custody Agreement, are not subject
to termination by any acts of such Selling Stockholder, or by operation
of law, whether by the death or incapacity of such Selling Stockholder
or the occurrence of any other event; and if any such death, incapacity
or any other such event shall occur before the delivery of such
International Securities hereunder, certificates for the International
Securities will be delivered by the Custodian in accordance with the
terms and conditions of this Agreement and the Custody Agreement as if
such death, incapacity or other event had not occurred, regardless of
whether or not the Custodian shall have received notice of such death,
incapacity or other event.
(iv) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
by such Selling
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Stockholder of the transactions contemplated herein, except such
as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction and the securities
laws of any jurisdiction outside the United States in connection with
the purchase and distribution of the International Securities by the
International Underwriters and such other approvals as have been
obtained.
(v) Neither the sale of the International Securities
being sold by such Selling Stockholder nor the consummation of any
other of the transactions herein contemplated by such Selling
Stockholder or the fulfillment of the terms hereof by such Selling
Stockholder will conflict with, result in a breach or violation of, or
constitute a default under any law or, where applicable, the charter or
by-laws of such Selling Stockholder or the terms of any material
indenture or other agreement or instrument to which such Selling
Stockholder or any of its subsidiaries is a party or bound, or any
judgment, order or decree applicable to such Selling Stockholder or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over such
Selling Stockholder or any of its subsidiaries.
In respect of any statements or omissions from the
Registration Statement or the Prospectuses or any supplement thereto made in
reliance upon and in conformity with information furnished in writing to the
Company by any Selling Stockholder specifically for use in connection with the
preparation thereof, such Selling Stockholder hereby makes the same
representations and warranties to each Underwriter as the Company makes to such
Underwriter under paragraph (a)(ii) of this Section.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company and the Selling Stockholders (collectively, the "Sellers" and
individually, a "Seller") agree, severally and not jointly, to sell to each
International Underwriter, and each International Underwriter agrees, severally
and not jointly, to purchase from the Sellers at a purchase price of $ per
share, the amount of the International Underwritten Securities set forth
opposite such International Underwriter's name in Schedule I hereto. The amount
of International Underwritten Securities to be purchased by each Underwriter
from each Seller shall be as nearly as practicable in the same proportion to the
total amount of Securities to be purchased by such Underwriter as the total
amount of International Underwritten Securities to be sold by each Seller bears
to the total amount of International Underwritten Securities to be sold pursuant
hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company and the Selling
Stockholders hereby grant an option to the several International Underwriters to
purchase, severally and not jointly, up to 22,500 shares of the International
Option Securities at the same purchase
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price per share as the International Underwriters shall pay for the
International Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the International Underwritten Securities
by the International Underwriters. Said option may be exercised in whole or in
part at any time (but not more than once) on or before the 30th day after the
date of the International Prospectus upon written or telegraphic notice by the
International Representatives to the Company and such Selling Stockholders
setting forth the number of shares of the International Option Securities as to
which the several International Underwriters are exercising the option and the
Settlement Date. Delivery of certificates for the shares of International Option
Securities and payment therefor shall be made as provided in Section 3 hereof.
The maximum number of shares of the International Option Securities to be
purchased by each International Underwriter shall be the same percentage of the
total number of shares of the International Option Securities to be purchased by
the several International Underwriters as such International Underwriter is
purchasing of the International Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the
International Underwritten Securities and the International Option Securities
(if the option provided for in Section 2(b) hereof shall have been exercised on
or before the third business day prior to the Closing Date) shall be made at
7:00 AM, California time, on , 1997, or at such time on such later date not more
than three Business Days after the foregoing date as the International
Representatives and the Representatives shall designate, which date and time may
be postponed by agreement among the International Representatives, the
Representatives, the Company and the Selling Stockholders or as provided in
Section 9 hereof (such date and time of delivery and payment for the
International Securities being herein called the "Closing Date"). Delivery of
the International Securities shall be made to the International Representatives
for the respective accounts of the several International Underwriters against
payment by the several International Underwriters through the International
Representatives of the respective aggregate purchase prices of the International
Securities being sold by the Company and each of the Selling Stockholders to or
upon the order of the Company and the Selling Stockholders by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the International Underwritten Securities and the International Option
Securities shall be made through the facilities of The Depository Trust Company
unless the International Representatives shall otherwise instruct.
Each Selling Stockholder will pay all applicable state
transfer taxes, if any, involved in the transfer to the several International
Underwriters of the International Securities to be purchased by them from such
Selling Stockholder and the respective International Underwriters will pay any
additional stock transfer taxes involved in further transfers.
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If the option provided for in Section 2(b) hereof is exercised
after the third business day prior to the Closing Date, the Company and the
Selling Stockholders will deliver the International Option Securities (at the
expense of the Company) to the International Representatives on the date
specified by the International Representatives (which shall be within three
Business Days after exercise of said option) against payment of the purchase
price thereof to or upon the order of the Company and the Selling Stockholders
by wire transfer payable in same-day funds to an account specified by each of
the Company and the Selling Stockholders. If settlement for the International
Option Securities occurs after the Closing Date, the Company and such Selling
Stockholders will deliver to the International Representatives on the Settlement
Date for the International Option Securities, and the obligation of the
International Underwriters to purchase the International Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement,
and that the Settlement Date, if any, shall occur simultaneously with the
"Settlement Date" under the U.S.
Underwriting Agreement.
4. Offering by Underwriters. It is understood that the
several International Underwriters propose to offer the International Securities
for sale to the public as set forth in the International Prospectus.
5. Agreements.
(a) The Company agrees with the several International
Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectuses or any
Rule 462(b) Registration Statement unless the Company has furnished you
a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectuses is otherwise required under Rule 424(b), the Company will
cause the Prospectuses, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the International Representatives of such timely
filing. The Company will promptly advise the International
Representatives (A) when the Registration
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Statement, if not effective at the Execution Time, shall have become
effective, (B) when the Prospectuses, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b), or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (C) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (D) of any
request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Prospectuses or of any additional
information, (E) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (F)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which either of the Prospectuses as then supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or if
it shall be necessary to amend the Registration Statement or supplement
either of the Prospectuses to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company promptly will (A)
prepare and file with the Commission, subject to the second sentence of
paragraph (a)(i) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance and
(B) supply any supplemented Prospectuses to you in such quantities as
you may reasonably request.
(iii) As soon as practicable, the Company will make
generally available to its security holders and to the International
Representatives an earnings statement or statements of the Company and
the Subsidiary which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(iv) The Company will furnish to the International
Representatives and counsel for the International Underwriters, without
charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other International Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an International Underwriter or dealer may
be required by the Act or otherwise required, as many copies of each
International Preliminary Prospectus and the International Prospectus
and any supplement thereto
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as the International Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(v) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the International Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of the securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review
of the offering; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service
of process in suits, other than those arising out of the offering or
sale of the Securities, in any jurisdiction where it is not now so
subject.
(vi) The Company will not, for a period of 90 days
following the Execution Time, without the prior written consent of
Salomon Brothers International Limited (which consent shall not be
unreasonably withheld) , offer, sell or contract to sell, pledge or
otherwise dispose of, or file a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act with respect to, any shares
of capital stock, the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly
announce an intention to effect any such transaction (except for the
shares offered hereby); provided, however, that the Company may grant
options and other rights and issue and sell Common Stock pursuant to
any employee stock option plan, stock ownership plan or dividend
reinvestment plan of the Company in effect at the Execution Time and
the Company may issue Common Stock issuable upon the conversion of
securities or the exercise of warrants outstanding at the Execution
Time.
(b) Each International Underwriter agrees that (i) it is not
purchasing any of the International Securities for the account of any United
States or Canadian Person, (ii) it has not offered or sold, and will not offer
or sell, directly or indirectly, any of the International Securities or
distribute any International Prospectus to any person in the United States or
Canada, or to any United States or Canadian Person, and (iii) any dealer to whom
it may sell any of the International Securities will represent that it is not
purchasing for the account of any United States or Canadian Person and agree
that it will not offer or resell, directly or indirectly, any of the
International Securities in the United States or Canada, or to any United States
or Canadian Person or to any other dealer who does not so represent and agree;
provided, however, that the foregoing shall not restrict (A) purchases and sales
between the U.S. Underwriters on the one hand and the International Underwriters
on the other hand pursuant to the Agreement Between U.S.
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Underwriters and International Underwriters, (B) stabilization transactions
contemplated under the Agreement Between U.S. Underwriters and International
Underwriters, conducted through Salomon Brothers International Limited (or
through the Representatives and International Representatives) as part of the
distribution of the Securities, and (C) sales to or through (or distributions of
International Prospectuses or International Preliminary Prospectuses to) persons
not United States or Canadian Persons who are investment advisors, or who
otherwise exercise investment discretion, and who are purchasing for the account
of any United States or Canadian Person.
(c) The agreements of the International Underwriters set forth
in paragraph (b) of this Section 5 shall terminate upon the earlier of the
following events:
(i) a mutual agreement of the Representatives and the
International Representatives to terminate the selling restrictions
set forth in paragraph (b) of this Section 5 and in Section 5(b) of
the U.S. Underwriting Agreement; or
(ii) the expiration of a period of 30 days after the Closing
Date, unless (A) the International Representatives shall have given
notice to the Company and the Representatives that the distribution of
the International Securities by the International Underwriters has not
yet been completed, or (B) the Representatives shall have given notice
to the Company and the International Underwriters that the
distribution of the U.S. Securities by the U.S. Underwriters has not
yet been completed. If such notice by the Representatives or the
International Representatives is given, the agreements set forth in
such paragraph (b) shall survive until the earlier of (1) the event
referred to in clause (i) of this subsection (c) or (2) the expiration
of an additional period of 30 days from the date of any such notice.
(d) Each International Underwriter severally represents and
agrees that:
(i) it has not offered or sold and, prior to the
expiration of six months from the Closing Date, will not offer or sell,
any International Securities in the United Kingdom, other than to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (whether as principal or agent)
for the purposes of their businesses or otherwise in circumstances
which have not resulted in an offer to the public within the meaning of
the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable
provisions of The Financial Services Xxx 0000 with respect to anything
done by it in relation to the International Securities, in, from or
otherwise involving the United Kingdom; and
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(iii) it has only issued or passed on and will only issue
or pass on to any person in the United Kingdom any document received by
it in connection with the issue of the International Securities if that
person is of a kind described in Article 11(3) of the Financial
Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
or a person to whom the document may otherwise lawfully be issued or
passed on.
(e) Each Selling Stockholder agrees with the several
International Underwriters that such Selling Stockholder will not during the
period of 90 days following the Execution Time, without the prior written
consent of Salomon Brothers Inc, offer, sell, pledge or contract to sell, or
otherwise dispose of, or file a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act with respect to, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock, or publicly announce an intention to effect any such transaction (except
for the shares offered hereby subject to certain limitations set forth in the
"Lockup Agreement" attached as Exhibit A).
6. Conditions to the Obligations of the International
Underwriters. The obligations of the International Underwriters to purchase the
International Underwritten Securities and the International Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders contained
herein as of the Execution Time, the Closing Date and any Settlement Date
pursuant to Section 3 hereof, to the accuracy of the statements of the Company
and the Selling Stockholders made in any certificates pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholders of their
respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives and the International
Representatives agree in writing to a later time, the Registration Statement
shall have become effective not later than (i) 3:00 PM California time on the
date of determination of the public offering price, if such determination
occurred at or prior to 12:00 Noon California time on such date or (ii) 6:30 AM
on the Business Day following the day on which the public offering price was
determined, if such determination occurred after 12:00 Noon California time on
such date; if filing of either of the Prospectuses, or any supplement thereto,
is required pursuant to the applicable paragraph of Rule 424(b), the
Prospectuses, and any such supplement, will be filed in the manner and within
the time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
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(b) The Company shall have furnished to the International
Representatives the opinion of Xxxxxx Godward LLP, counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectuses, and, to the best of such
counsel's knowledge, is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
wherein it owns or leases material properties or conducts material
business, except where the failure to be so qualified would not have a
material adverse effect on the financial condition, earnings,
operations or business of the Company and the Subsidiary, taken as a
whole;
(ii) all the outstanding shares of capital stock of the
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Prospectuses, all outstanding shares of capital stock of the Subsidiary
are owned of record by the Company free and clear of, to the knowledge
of such counsel, any security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as
set forth in the Prospectuses under the caption "Capitalization"; the
capital stock of the Company conforms in all material respects to the
description thereof contained in the Prospectuses under the caption
"Description of Capital Stock"; the outstanding shares of Common Stock
(including the Securities being sold hereunder by the Selling
Stockholders) have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities being sold hereunder by
the Company have been duly and validly authorized, and, when issued and
delivered to and paid for by the International Underwriters pursuant to
this Agreement and by the U.S. Underwriters pursuant to the U.S.
Underwriting Agreement, will be fully paid and nonassessable; the
Securities being sold hereunder are duly authorized for listing,
subject to official notice of issuance and evidence of satisfactory
distribution; the certificates for the "Common Stock" in the form filed
as an exhibit to the Company's Registration Statement on Form 8-A filed
with the Commission on January 19, 1996 are in valid and sufficient
form; and the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or, to the best of such
counsel's knowledge, other rights to subscribe for the Securities; and,
to the best of such counsel's knowledge, except as set forth in the
Prospectuses, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
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obligations into or exchange any securities for, shares of capital
stock of the Company are outstanding;
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving
the Company or the Subsidiary of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Prospectuses, and there is no franchise, contract or other document of
a character required to be described in the Registration Statement or
Prospectuses, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements in the Prospectuses
under the heading "Risk Factors--Intellectual Property and Proprietary
Rights" fairly summarize the matters therein described;
(v) the Registration Statement has become effective
under the Act; any required filing of the Prospectuses, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and each of the Prospectuses (other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
rules thereunder;
(vi) this Agreement and the U.S. Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectuses, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required by the
Company in connection with the transactions contemplated herein, except
such as have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the
manner contemplated in this Agreement and the U.S. Underwriting
Agreement and in the Prospectuses and such other approvals (specified
in such opinion) as have been obtained;
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(ix) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein or in the U.S.
Underwriting Agreement contemplated nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach or violation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Subsidiary pursuant to, (i) the charter or
by-laws of the Company or the Subsidiary or (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or the Subsidiary is a party or bound
or to which its property is subject and that would be required to be
filed with the Commission in connection with a registration statement
of the Company on Form S-1 filed as of the date hereof, or (iii) any
statute, law, rule or regulation (except that such counsel need not
opine as to requirements under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Securities by
the Underwriters), or, to the knowledge of such counsel, judgment,
order or decree applicable to the Company or the Subsidiary of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
the Subsidiary or any of its or their properties; and
(x) to the knowledge of such counsel, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement except for such rights of
persons identified in such opinion, which have been effectively waived.
In addition, such opinion shall state that in connection with the
preparation of the Registration Statement and the Prospectuses, such counsel has
participated in conferences with officials and other representatives of the
Company, the Representatives, Underwriters' counsel and the independent
certified public accountants of the Company, at which such conference the
contents of the Registration Statement and Prospectuses and related matters were
discussed and, although they have not verified the accuracy of completeness of
the statements contained in the Registration Statement or the Prospectuses,
nothing has come to their attention which leads them to believe that on the
Effective Date, the Registration Statement (other than the financial statements
including supporting schedules and other financial and statistical information
contained therein, as to which they make no comment) contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, the
Prospectuses as of their date or as of the Closing Date (other than the
financial statements including supporting schedules and other financial and
statistical information contained therein as to which they make no comment),
contained or contains any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of California, the Delaware General Corporation Law or the Federal laws of
the United States, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the International Underwriters
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to the
Prospectuses in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) Each of the Selling Stockholders shall have furnished to
the International Representatives the opinion of counsel for such Selling
Stockholder acceptable to the Representatives, dated the Closing Date, to the
effect that:
(i) this Agreement, the U.S. Underwriting Agreement, the
Custody Agreement and the Power-of-Attorney have been duly authorized,
executed and delivered by or on behalf of such Selling Stockholders,
the Custody Agreement is valid and binding on such Selling Stockholders
subject to applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws affecting
creditors' rights, and subject to general principles of equity and to
limitations or availability of equitable relief, including specific
performance; and such Selling Stockholder has full legal right, and in
the case of each Selling Stockholder that is an entity, power and
authority under its organizational documents, to sell, transfer and
deliver, in the manner provided in this Agreement, the U.S.
Underwriting Agreement and the Custody Agreement, the Securities being
sold by such Selling Stockholder hereunder;
(ii) the delivery by such Selling Stockholder to the
several International Underwriters of certificates for the Securities
being sold hereunder with due endorsement for transfer by such Selling
Stockholder against payment therefor as provided herein, will pass
valid title to such Securities to the several International
Underwriters, free and clear of all liens, encumbrances, equities and
claims whatsoever;
(iii) to the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental agency or
body is required for the consummation by such Selling Stockholder of
the transactions contemplated herein, except such as may have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the International Underwriters and
such other approvals (specified in such opinion) as have been obtained;
and
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20
(iv) neither the sale of the Securities being sold by
such Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by such Selling Stockholder or the
fulfillment of the terms hereof by such Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law (except that such counsel need not opine as to
requirements under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters) or, where applicable, the organizational documents of
such Selling Stockholder or the terms of any indenture or other
agreement or instrument known to such counsel and to which such Selling
Stockholder or any of its subsidiaries is a party or bound, or any
judgment, order or decree known to such counsel to be applicable to
such Selling Stockholder or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Stockholder or any of its
subsidiaries.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than those
in which such counsel is expert (which jurisdictions shall be disclosed in such
opinion), to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the International Underwriters, and (B) as
to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Selling Stockholders and public officials.
(d) The International Representatives shall have received from
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the
International Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectuses (together with any supplement thereto) and other
related matters as the International Representatives may reasonably require, and
the Company and each Selling Stockholder shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(e) The Company shall have furnished to the International
Representatives a certificate of the Company, signed by the Chairman of the
Board or the President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectuses, any supplements to the Prospectuses and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date
and the Company has complied
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with all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectuses (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and the Subsidiary, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(f) Each Selling Stockholder shall have furnished to the
International Representatives a certificate, signed by or on behalf of such
Selling Stockholder or, where applicable, the Chairman of the Board or the
President and the principal financial or accounting officer of such Selling
Stockholder, dated the Closing Date, to the effect that the representations and
warranties of such Selling Stockholder in this Agreement are true and correct in
all material respects on and as of the Closing Date to the same effect as if
made on the Closing Date.
(g) At the Execution Time and at the Closing Date, Coopers and
Xxxxxxx L.L.P. shall have furnished to the International Representatives
letters, dated respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the International Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder and [that they have performed a review of the unaudited
interim financial information of the Company for the six-month period ended June
30, 1997, and as at June 30, 1997, in accordance with Statement on Accounting
Standards No. 71 and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in the
Registration Statement and the Prospectuses and reported on by them
comply in form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and the Subsidiary;
their review, in accordance with standards established under Statement
on Auditing Standards No. 71, of the unaudited interim financial
information as indicated in their reports
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incorporated in the Registration Statement and the Prospectus;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and executive, finance and
audit committees of the Company and the Subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and the Subsidiary as to
transactions and events subsequent to June 30, 1997, nothing came to
their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the
Prospectuses do not comply in form in all material respects
with applicable accounting requirements and with the published
rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration
Statement and the Prospectus;
(2) with respect to the period subsequent to June 30,
1997, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term liabilities of the Company and the Subsidiary or
capital of the Company or decreases in the stockholders'
equity of the Company or decreases in working capital of the
Company and the Subsidiary as compared with the amounts shown
on the June 30, 1997 consolidated balance sheet included or
incorporated in the Registration Statement and the
Prospectuses, or for the period from July 1, 1997 to such
specified date there were any decreases, as compared with the
six-month period ended June 30, 1996 in net sales or income or
in total or per share amounts of net income of the Company and
the Subsidiary, or in income (loss) before income taxes
provision (benefit) and extraordinary debt extinguishment
costs, income tax provision (benefit), net income (loss)
before extraordinary debt extinguishment costs, or in
extraordinary debt extinguishment costs, net of income taxes,
except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives;
(3) if the information included in the Registration
Statement and Prospectus in response to Regulation S-K, Item
301 (Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive
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Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived
from the general accounting records of the Company and the Subsidiary)
set forth in the Registration Statement and the Prospectuses, including
the information set forth under the captions "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and
"Business" in the Prospectuses, the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report
on Form 10-K (or incorporated by reference therein), incorporated in
the Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated in the
Company's Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Prospectus, agrees with the accounting
records of the Company and the Subsidiary, excluding any questions of
legal interpretation.
References to the Prospectuses in this paragraph (g) include
any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectuses (exclusive of any supplement thereto),
there shall not have been (i) any change specified in the letter or letters
referred to in paragraph (g) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto) the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the
International Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof)
and the Prospectuses (exclusive of any supplement thereto).
(i) At the Execution Time, the Company shall have furnished to
the International Representatives a letter substantially in the form of Exhibit
A hereto from each officer and director of the Company and certain stockholders
of the Company addressed to the International Representatives, in which each
such person agrees not to offer, sell, contract to sell, pledge or otherwise
dispose of, or file a registration statement with the Commission
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in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act with respect to, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock, or publicly announce an intention to effect any such transaction (except
the shares offered hereby and by the U.S. Underwriting Agreement), for a period
of 90 days after the Execution Time, other than as set forth therein.
(j) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(k) The Company shall have caused the Securities to be
eligible for trading on the Nasdaq National Market upon issuance.
(l) Prior to the Closing Date, the Company and each Selling
Stockholder shall have furnished to the International Representatives such
further information, certificates and documents as the International
Representatives may reasonably request.
(m) The closing of the purchase of the U.S. Underwritten
Securities to be issued and sold by the Company and sold by the Selling
Stockholders pursuant to the U.S. Underwriting Agreement shall occur
concurrently with the closing described herein.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the International Representatives and
counsel for the International Underwriters, this Agreement and all obligations
of the International Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the International Representatives. Notice of such
cancellation shall be given to the Company and each Selling Stockholder in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cooley Godward LLP, counsel for the Company, at
Five Palo Alto Square, 3000 El Camino Real, Palo Alto, California, on the
Closing Date.
7. Reimbursement of International Underwriters' Expenses. If
the sale of the Securities provided for herein is not consummated because any
condition to the obligations of the International Underwriters set forth in
Section 6 hereof is not satisfied, because of any termination pursuant to
Section 10 hereof or because of any refusal, inability
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25
or failure on the part of the Company or the Selling Stockholder to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the International Underwriters, the Company will reimburse the
International Underwriters severally through Salomon Brothers International
Limited on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities. If the Company is
required to make any payments to the International Underwriters under this
Section 7 because of any Selling Stockholder's refusal, inability or failure to
satisfy any condition to the obligations of the International Underwriters set
forth in Section 6, the Selling Stockholders pro rata in proportion to the
percentage of Securities to be sold by each shall reimburse the Company on
demand for all amounts so paid.
8. Indemnification and Contribution. (a) The Company, jointly and
severally, and Summit Ventures III, L.P., Summit Ventures IV, L.P., Summit
Investors II. L.P. and Summit Subordinated Debt Fund (collectively"Summit"),
severally, agree to indemnify and hold harmless each International Underwriter,
the directors, officers, employees and agents of each International Underwriter
and each person who controls any International Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in any U.S. or International
Preliminary Prospectus or in either of the Prospectuses, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action (provided that Summit shall not be liable
under such indemnity for any untrue statement or alleged untrue statement or any
omission or alleged omission in the Preliminary Prospectus if Summit provided
corrected information in writing to the Company or its counsel for inclusion in
the final Prospectuses and the corrected information was not so included or such
final Prospectuses were not properly delivered by the Company and/or the
International Underwriters); provided, however, that the Company and Summit will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any International Underwriter through the International
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company
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or Summit may otherwise have. Notwithstanding the foregoing, each U.S.
Underwriter agrees that it shall not make demand on Summit for indemnification
hereunder until, and except to the extent that, such Underwriter shall have made
demand on the Company for indemnification hereunder and the Company shall not
have paid the same within 30 days after such demand.
(b) Each Selling Stockholder other than Summit severally and
not jointly agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, each
International Underwriter, the directors, officers, employees and agents of each
International Underwriter and each person who controls the Company or any
International Underwriter within the meaning of either the Act or the Exchange
Act and each other Selling Stockholder to the same extent as the foregoing
indemnity from the Company to each International Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Selling Stockholder specifically for use in the preparation of the
documents referred to in the foregoing indemnity (provided that no Selling
Stockholder shall be liable under such indemnity for any untrue statement or
alleged untrue statement or any omission or alleged omission in the Preliminary
Prospectus if such Selling Stockholder provided corrected information in writing
to the Company or its counsel for inclusion in the final Prospectuses and the
corrected information was not so included or such final Prospectuses were not
properly delivered by the Company and/or the International Underwriters). This
indemnity agreement will be in addition to any liability which any Selling
Stockholder may otherwise have.
(c) Each International Underwriter severally agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act and each
Selling Stockholder and each person who controls such Selling Stockholder within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity to each International Underwriter, but only with reference
to written information relating to such International Underwriter furnished to
the Company by or on behalf of such International Underwriter through the
International Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any International Underwriter may otherwise
have. The Company and each Selling Stockholder acknowledge that the
statements set forth in the last paragraph of the cover page regarding delivery
of the International Securities, the stabilization legend in block capital
letters on page 2 and, under the heading "Underwriting", (i) the sentences
related to concessions and reallowances and (ii) the paragraph related to
stabilization in any U.S. or International Preliminary Prospectus and the
Prospectuses constitute the only information furnished in writing by or on
behalf of the several International Underwriters for inclusion in any U.S. or
International Preliminary Prospectus or the Prospectuses.
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(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a), (b) or (c) above unless
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a), (b) or (c) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. It is understood, however, that the Company
shall, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such International Underwriters and controlling
persons, which firm shall be designated in writing by Salomon Brothers
International Limited. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
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(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Selling Stockholders
and the International Underwriters agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Company, one or more of the Selling Stockholders and one
or more of the International Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and by the International Underwriters on
the other from the offering of the International Securities; provided, however,
that in no case shall any International Underwriter (except as may be provided
in any agreement among underwriters relating to the offering of the
International Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
such International Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company, the
Selling Stockholders and the International Underwriters shall contribute 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 of the International Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and the
Selling Stockholders shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits received
by the International Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the International Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company, the Selling
Stockholders on the one hand or the International Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Selling Stockholders and the International Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (e), 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. For purposes of
this Section 8, each person who controls an International Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an International Underwriter shall have the same rights to
contribution as such International Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have
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the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (e).
(f) The liability of each Selling Stockholder other than
Summit under such Selling Stockholder's representations and warranties contained
in Section 1 hereof and under the indemnity and contribution agreements
contained in this Section 8 shall be limited to an amount equal to the initial
public offering price of the International Securities sold by such Selling
Stockholder to the International Underwriters (before deducting expenses). The
liability of Summit under its representations and warranties contained in
Section 1 hereof and under the indemnity and contribution agreements contained
in this Section 8 shall be limited to the lesser of (i) an amount equal to the
net initial public offering price of the U.S. Securities sold by Summit to the
International Underwriters (before deducting expenses), and (ii) Summit's
proportionate share of the aggregate liability, based on the number of shares
sold by it. The Company and the Selling Stockholders may agree, as among
themselves and without limiting the rights of the International Underwriters
under this Agreement, as to the respective amounts of such liability for which
they each shall be responsible.
9. Default by an International Underwriter. If any one or more
International Underwriters shall fail to purchase and pay for any of the
International Securities agreed to be purchased by such International
Underwriter or International Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining International Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of International Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of International Securities set forth opposite the
names of all the remaining International Underwriters) the International
Securities which the defaulting International Underwriter or International
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of International Securities which the defaulting
International Underwriter or International Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of International Securities
set forth in Schedule I hereto, the remaining International Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the International Securities, and if such nondefaulting
International Underwriters do not purchase all the International Securities,
this Agreement will terminate without liability to any nondefaulting
International Underwriter, the Selling Stockholders or the Company. In the event
of a default by any International Underwriter as set forth in this Section 9,
the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the International Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectuses or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting International
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Underwriter of its liability, if any, to the Company, the Selling Stockholders
and any nondefaulting International Underwriter for damages occasioned by its
default hereunder.
10. Effective Date of Agreement and Termination.
This Agreement shall become effective at such time (after
notification of the effectiveness of the Registration Statement has been
released by the Commission) as the International Underwriters, the Selling
Stockholders and the Company shall agree on the initial public offering price
and underwriting discount per share, unless prior to such time such of the
Underwriters as have agreed to purchase in the aggregate 50% or more of the
Securities shall have given notice to the Company that such International
Underwriters elect that this Agreement and the U.S. Underwriting Agreement shall
not become effective; provided, however, that the provisions of this Section 10
and of Section 8 hereof shall at all times be effective. If this Agreement shall
not have become effective prior to 2:00 PM, California time, on the seventh full
business day after the Effective Date, this Agreement shall not thereafter
become effective unless such period is extended by agreement among the
International Underwriters, the Selling Stockholders and the Company.
This Agreement shall be subject to termination in the absolute
discretion of the International Representatives, by notice given to the Company
prior to delivery of and payment for the International Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on such Exchange or National Market, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the
reasonable judgment of the International Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the International Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Stockholder and of the International
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
International Underwriter, any Selling Stockholder or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the International Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
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12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the International
Representatives, will be mailed, delivered or telefaxed to the Salomon Brothers
International Limited General Counsel (fax no.: (000) 000-0000) and confirmed to
the General Counsel, care of Salomon Brothers International Limited, at Victoria
Plaza, 000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX ENGLAND, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
(000) 000-0000 and confirmed to it at 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
00000, attention of Xxxxx X. Xxxxxx, Chief Financial Officer, with a copy to
Xxxxx X. Xxxxx, Esq., Xxxxxx Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (fax no: (000) 000-0000); or if sent to the
Selling Stockholders, will be mailed, delivered or telegraphed and confirmed to
them at the addresses set forth in Schedule II hereto.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or the State of California.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
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"International Preliminary Prospectus" shall have the
meaning set forth under "U.S. Preliminary Prospectus."
"Preliminary Prospectus" shall have the meaning set forth
under "U.S. Preliminary Prospectus."
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as
the case may be. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule
430A.
"Rule 424," "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration statement.
"U.S. Preliminary Prospectus" and the "International
Preliminary Prospectus," respectively, shall mean any preliminary
prospectus with respect to the offering of the U.S. Securities and the
International Securities, as the case may be, referred to in the first
paragraph set forth above and any preliminary prospectus with respect
to the offering of the U.S. Securities and the International
Securities, as the case may be, included in the Registration Statement
at the Effective Date that omits Rule 430A Information; and the U.S.
Preliminary Prospectus and the International Preliminary Prospectus are
hereinafter collectively called the "Preliminary Prospectuses."
"United States or Canadian Person" shall mean any person who
is a national or resident of the United States or Canada, any
corporation, partnership, or other entity created or organized in or
under the laws of the United States or Canada or of any political
subdivision thereof, or any estate or trust the income of which is
subject to United States or Canadian Federal income taxation,
regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and
shall include any United States or Canadian branch of a person other
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than a United States or Canadian Person. "U.S." or "United States"
shall mean the United States of America (including the states thereof
and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several International Underwriters.
Very truly yours,
HMT Technology Corporation
By:
---------------------------------
[Title]
Selling Stockholders
By:
----------------------------------
Attorney-in-fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
Alex. Xxxxx & Sons International
Xxxxxxxxx & Xxxxx LLC
Xxxxxxxxx, Xxxxxxxx & Company LLC
By: Salomon Brothers International Limited
By:
----------------------------------------
[Title]
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SCHEDULE I
Number of
Shares-to-be
Underwriters Purchased
---------------------------------------------------------------------------------- -------------
Salomon Brothers International Limited...........................................
Alex. Xxxxx & Sons International.................................................
Xxxxxxxxx & Xxxxx LLC............................................................
Xxxxxxxxx, Xxxxxxxx & Company LLC................................................
---------
Total.......................................................... 1,500,000
=========
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SCHEDULE II
Number of Underwritten
Securities to be
Selling Stockholders Sold
-------------------- -----------------------
Summit Ventures III, L.P.
[Address]
Summit Ventures IV, L.P.
[Address]
Summit Investors II. L.P.
[Address]
Summit Subordinated Debt Fund L.P.
[Address]
Hitachi Metals, Ltd.
[Address]
Xxxxxx X. Xxxxxxx
[Address]
Xxxxxxx X. Xxxxxx
[Address]
Xxxxxx X. Xxxx
[Address]
Xxxxxx X. Xxxxxxx
[Address]
Xxxxx X. Xxxxxx
[Address]
Crossroads SF Limited Partnership
[Address]
Xxxxxx X. Xxxxxxx
[Address]
Crossroads Capital II Limited Partnership
[Address]
Xxxxx X. Xxxxxxx
[Address]
Crossroads DPT Limited Partnership
[Address]
---------
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Total . . . . . . . . . 1,350,000
=========
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