Exhibit 1.1
PRINTCAFE SOFTWARE, INC.
3,750,000 SHARES
COMMON STOCK
($0.0001 PAR VALUE)
UNDERWRITING AGREEMENT
_______________, 2002
UNDERWRITING AGREEMENT
________, 2002
UBS WARBURG LLC
XXXXXXXXX XXXXXXXX, INC.
U.S. BANCORP XXXXX XXXXXXX INC.
MCDONALD INVESTMENTS INC.
As Representatives of the several Underwriters
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Printcafe Software, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the underwriters named in SCHEDULE A hereto (the
"Underwriters") an aggregate of 3,750,000 shares (the "Firm Shares") of common
stock, $0.0001 par value ("Common Stock"), of the Company. In addition, solely
for the purpose of covering over-allotments, the Company proposes to grant to
the Underwriters the option to purchase from the Company up to an additional
462,000 shares of Common Stock (the "Additional Shares"). The Firm Shares and
the Additional Shares are hereinafter collectively sometimes referred to as the
"Shares." The Shares are described in the Prospectus referred to below.
The Company hereby acknowledges that in connection with the proposed
offering of the Shares, it has requested UBS Warburg LLC ("UBS Warburg") to
administer a directed share program (the "Directed Share Program") under which
up to 200,000 of the Firm Shares (the "Reserved Shares") shall be reserved for
sale at the initial public offering price to the Company's officers, directors,
employees and consultants and others having a relationship with the Company (the
"Directed Share Participants") as part of the distribution of the Shares by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. (the "NASD") and all other applicable laws, rules and regulations.
The number of Shares available for sale to the general public will be reduced to
the extent that Directed Share Participants purchase Reserved Shares. You may
offer any Reserved Shares not purchased by Directed Share Participants to the
general public on the same basis as the other Shares being issued and sold
hereunder. The Company has supplied UBS Warburg with names, addresses and
telephone numbers of the individuals or other entities that the Company has
designated to be participants in the Directed Share Program. It is understood
that any number of those designated to participate in the Directed Share Program
may decline to do so.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "Act"), with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-1 (File No. 333-82646), including a prospectus,
relating to the Shares. The Company has furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary prospectuses
(each thereof being herein called a "Preliminary Prospectus") relating to the
Shares. Except where the context otherwise requires, the registration statement,
as amended when it becomes effective, including all documents filed as a part
thereof, and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Act and deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act and also including any registration statement filed pursuant
to Rule 462(b) under the Act, is herein called the Registration Statement, and
the prospectus, in
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the form filed by the Company with the Commission pursuant to Rule 424(b) under
the Act on or before the second business day after the date hereof (or such
earlier time as may be required under the Act) or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time it became effective, is herein called the Prospectus.
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE. Upon the basis of the warranties and representations
and subject to the terms and conditions herein set forth, the Company agrees to
sell to the respective Underwriters and each of the Underwriters, severally and
not jointly, agrees to purchase from the Company the aggregate number of Firm
Shares set forth opposite the name of such Underwriter in SCHEDULE A hereto, in
each case at a purchase price of $______ per Share. The Company is advised by
you that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the Firm Shares upon the terms set forth in the Prospectus.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for
the Firm Shares. This option may be exercised by you on behalf of the several
Underwriters at any time (but not more than once) on or before the thirtieth day
following the date hereof, by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised, and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the additional time of
purchase); provided, however, that the additional time of purchase shall not be
earlier than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. As used herein "business day" shall mean a day on which the New
York Stock Exchange is open for trading. The number of Additional Shares to be
sold to each Underwriter shall be the number that bears the same proportion to
the aggregate number of Additional Shares being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on SCHEDULE A hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares).
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm Shares
shall be made to the Company by Federal Funds wire transfer to a bank account
specified by the Company, against delivery of the certificates for the Firm
Shares to you through the facilities of the Depository Trust Company ("DTC") for
the respective accounts of the Underwriters. Such payment and delivery shall be
made at 10 A.M., New York City time, on _________, 2002 (unless another time
shall be agreed to by you and the Company or unless postponed in accordance with
the provisions of Section 8 hereof). The time at which such payment and delivery
are actually made is hereinafter sometimes called "the time of purchase."
Electronic transfer of the Firm Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Electronic transfer of the Additional Shares
shall be made to you at the time of purchase in such names and in such
denominations as you shall specify.
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Deliveries of the documents described in Section 6 hereof with respect
to the purchase of the Shares shall be made at the offices of Xxxxxx, Xxxxx &
Xxxxxxx LLP, One Oxford Centre, Pittsburgh, Pennsylvania, at 10 A.M., New York
City time, on the date of the closing of the purchase of the Firm Shares or the
Additional Shares, as the case may be.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each of the Underwriters that:
(a) the Company has not received, and has no notice of, any order of
the Commission preventing or suspending the use of any Preliminary
Prospectus, or instituting proceedings for that purpose; each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act; when the Registration Statement
becomes effective, the Registration Statement and the Prospectus will
comply in all material respects with the provisions of the Act, the
Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, not misleading, and the
Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; all statutes and regulations that are
required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement have been so
described or filed; provided, however, that the Company makes no warranty
or representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus;
(b) the Company has not distributed any offering material in connection
with the offering or sale of the Shares other than the Registration
Statement, the Preliminary Prospectus, the Prospectus or any other
materials, if any, permitted by the Act;
(c) as of the date of this Agreement, the Company has an authorized
capitalization as set forth under the heading entitled "Actual" in the
section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the time of purchase and the additional time
of purchase, as the case may be, the Company shall have an authorized
capitalization as set forth under the heading entitled "Pro forma as
adjusted" in the section of the Registration Statement and the Prospectus
entitled "Capitalization"; all of the issued and outstanding shares of
capital stock, including Common Stock, of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable, have
been issued in compliance with all federal and state securities laws and
were not issued in violation of any preemptive right, resale right, right
of first refusal or similar right;
(d) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement;
(e) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not reasonably
be expected to have a material adverse effect on the business, properties,
financial condition or results of operation of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole (a "Material
Adverse Effect"), and the Company is in compliance in all material
respects with the laws, orders, rules, regulations and directives issued
or administered by such jurisdictions; all of the
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outstanding shares of capital stock of each of the corporations,
associations or other entities listed in Exhibit 21.1 to the Registration
Statement (collectively, the "Subsidiaries") have been duly authorized and
validly issued, are fully paid and non-assessable and, except as set forth
in the Registration Statement and the Prospectus, are owned by the Company
subject to no security interest, other encumbrance or adverse claims; no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into shares
of capital stock or ownership interests in the Subsidiaries are
outstanding; other than the capital stock of the Subsidiaries, the Company
does not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other
entity; complete and correct copies of the charters and by-laws of the
Company and the Subsidiaries and all amendments thereto have been
delivered to you, and except as set forth in the exhibits to the
Registration Statement no changes therein will be made subsequent to the
date hereof and prior to the at the time of purchase and additional time
of purchase; each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement; and each Subsidiary is duly
qualified to do business as a foreign corporation in good standing in each
jurisdiction where the ownership or leasing of the properties or the
conduct of its business requires such qualification, except where the
failure to so qualify would not reasonably be expected to have a Material
Adverse Effect, and each of the Subsidiaries is in compliance in all
material respects with the laws, orders, rules, regulations and directives
issued or administered by such jurisdictions;
(f) except as set forth in the Registration Statement and the
Prospectus, neither the Company nor any of the Subsidiaries is in breach
of, or in default under (nor has any event occurred that with notice,
lapse of time, or both would result in any breach of, or constitute a
default under), its charter or by-laws or, except where such breach or
default would not reasonably be expected to have a Material Adverse
Effect, in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or any
lease, contract or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or any of their
properties is bound, and the execution, delivery and performance of this
Agreement, the issuance and sale of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, or result in any
breach of or constitute a default under (nor constitute any event that
with notice, lapse of time, or both would result in any breach of, or
constitute a default under), any provisions of the charter or by-laws of
the Company or any of the Subsidiaries or under any provision of any
license, indenture, mortgage, deed of trust, bank loan, credit agreement
or other evidence of indebtedness, or any lease, contract or other
agreement or instrument, to which the Company or any of the Subsidiaries
is a party or by which any of them or their respective properties may be
bound or affected, or under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the
Company or any of the Subsidiaries;
(g) this Agreement has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery by
the Underwriters, is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, (ii) that forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and (iii) as rights to indemnity or
contribution may be limited by federal or state securities laws;
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(h) the capital stock of the Company, including the Shares, conforms in
all material respects to the description thereof contained in the
Registration Statement and the Prospectus; the certificates for the Shares
will be in due and proper form; and the holders of the Shares will not be
subject to personal liability by reason of being such holders;
(i) the Shares have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and non-assessable;
(j) no approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and
sale of the Shares or the consummation by the Company of the transactions
as contemplated hereby other than registration of the Shares under the
Act, which has been or will be effected, and any necessary qualification
or approval under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters
and under the rules and regulations of the NASD;
(k) except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any shares of Common Stock or
shares of any other capital stock or other equity interests of the
Company, (ii) no person has any preemptive rights, resale rights, rights
of first refusal or other rights to purchase any shares of Common Stock or
shares of any other capital stock or other equity interests of the
Company, and (iii) no person has the right to act as an underwriter, or as
a financial advisor to the Company, in connection with the offer and sale
of the Shares, in the case of each of the foregoing clauses (i), (ii) and
(iii), whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby
or otherwise; and except as set forth in the Registration Statement and
the Prospectus, no person has the right, contractual or otherwise, to
cause the Company to register under the Act any shares of Common Stock or
shares of any other capital stock or other equity interests of the
Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise, except for such rights as
have been complied with or waived;
(l) Ernst & Young LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries is filed with the
Commission as part of the Registration Statement and the Prospectus, are
independent public accountants as required by the Act;
(m) each of the Company and the Subsidiaries has all licenses,
authorizations, consents and approvals and has made all filings required
under any federal, state, local or foreign law, regulation or rule and has
obtained all authorizations, consents and approvals from other persons, in
order to conduct its respective business, except for such licenses,
authorizations, consents, approvals or filings, the failure of which to
obtain or make would not reasonably be expected to have a Material Adverse
Effect; and neither the Company nor any of the Subsidiaries is in
violation of, or in default under, any such license, authorization,
consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the
Company or any of the Subsidiaries, the effect of which could reasonably
be expected to have a Material Adverse Effect;
(n) all legal or governmental proceedings, contracts, licenses,
agreements, leases or documents of a character required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement have been so described or filed as required;
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(o) there are no actions, suits, claims, investigations or proceedings
pending or, to the knowledge of the Company, threatened to which the
Company or any of the Subsidiaries or any of their respective officers is
a party or of which any of their respective properties is subject at law
or in equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency
that could result in a judgment, decree or order that would reasonably be
expected to have a Material Adverse Effect or to prevent consummation of
the transactions contemplated hereby;
(p) the audited consolidated financial statements of the Company
included in the Registration Statement and the Prospectus present fairly
in all material respects the consolidated financial position of the
Company and the Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and the
Subsidiaries for the periods specified and have been prepared in
compliance with the requirements of the Act and in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved; the other financial and statistical data set
forth in the Registration Statement and the Prospectus are accurately
presented and prepared on a basis consistent with the financial statements
and books and records of the Company; and there are no financial
statements (historical or pro forma) that are required to be included in
the Registration Statement and the Prospectus that are not included as
required;
(q) subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been (i)
any material adverse change, or any development that is likely to cause a
material adverse change, in the business, properties or assets described
or referred to in the Registration Statement or the results of operations,
condition (financial or otherwise), business or operations of the Company
and the Subsidiaries taken as a whole, (ii) any transaction that is
material to the Company or the Subsidiaries, (iii) any obligation, direct
or contingent, incurred by the Company or any of the Subsidiaries that is
material to the Company and the Subsidiaries taken as a whole, (iv) any
change in the capital stock or outstanding indebtedness of the Company or
the Subsidiaries, or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company; and neither
the Company nor the Subsidiaries has any material contingent obligation
that is not disclosed in the Registration Statement;
(r) the Company has obtained for the benefit of the Underwriters an
agreement (each a "Lock-Up Agreement"), substantially in the form set
forth as EXHIBIT A hereto or as modified with the agreement of the
Underwriters or their counsel, of each of its directors and officers and
certain holders of Common Stock, securities convertible into or
exercisable or exchangeable for Common Stock, and warrants or other rights
to purchase Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock; and the Company has taken all necessary
actions under the Fifth Amended and Restated Investors' Rights Agreement
dated as of December 31, 2001, the 2000 Stock Incentive Plan, the 2002 Key
Executive Stock Incentive Plan, the 2002 Stock Incentive Plan and any
other contract, agreement (including a stock purchase agreement) or plan
to which the Company is a party or otherwise subject pursuant to which the
Company has the right to prohibit, restrict or otherwise limit transfers,
pledges or other dispositions of Common Stock, securities convertible into
or exercisable or exchangeable for Common Stock, or warrants or other
rights to purchase Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock (such investors' rights
agreement, stock incentive plans and other contracts, agreements and plans
are referred to herein collectively as the "Special Agreements"), such
that each other party thereto, each recipient of a stock option
thereunder, and each other person subject thereto, is prohibited,
restricted or otherwise limited, during the Lock-Up Period (as defined
below), from transferring, pledging or otherwise disposing of Common
Stock, securities convertible into or
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exercisable or exchangeable for Common Stock, or warrants or other
rights to purchase Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock.
(s) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(t) all material tax returns required to be filed by the Company and
each of the Subsidiaries have been filed, other than those filings being
contested in good faith, and all taxes and other assessments of a similar
nature (whether imposed directly or through withholding), including any
interest, additions to tax or penalties applicable thereto, due or claimed
to be due from such entities have been paid, other than those being
contested in good faith and for which adequate reserves have been
provided;
(u) the Company and each of the Subsidiaries maintains insurance
covering its properties, operations, personnel and businesses as the
Company deems adequate and as previously disclosed to the Underwriters;
such insurance insures against such losses and risks to an extent that the
Company reasonably believes to be adequate in accordance with customary
industry practice to protect the Company and the Subsidiaries and their
businesses; all such insurance is outstanding and fully in force on the
date hereof and will be outstanding and duly in force at the time of
purchase and additional time of purchase, as the case may be;
(v) neither the Company nor any of the Subsidiaries has sustained since
December 31, 2001 any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree;
(w) the Company has not sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or agreements
referred to or described in, or filed as an exhibit to, the Registration
Statement, and no such termination or non-renewal has been threatened by
the Company or any other party to any such contract or agreement;
(x) the Company and each of the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorization, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets,
and (iii) access to assets is permitted only in accordance with
management's general or specific authorization;
(y) all statistical and market-related data included in the Prospectus
are based on or derived from sources that the Company believes to be
reliable and accurate, and the Company has obtained the written consent to
the use of such data from such sources to the extent required;
(z)none of the Company, any of the Subsidiaries, and any director,
officer, affiliate or controlling person of the Company or any of the
Subsidiaries has taken, directly or indirectly, any action designed to
result, or that has constituted or might reasonably be expected to cause
or result, under the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the "Exchange Act") or
otherwise, in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(aa) neither the Company, nor any of the Subsidiaries, nor to the
Company's knowledge after due inquiry, any employee or agent of the
Company or the Subsidiaries, has made
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any payment of funds of the Company or the Subsidiaries or received or
retained any funds in violation of any law, rule or regulation, which
payment, receipt or retention of funds is of a character required to be
disclosed in the Registration Statement or the Prospectus;
(bb) the Company and the Subsidiaries own, or have obtained valid and
enforceable licenses for, or other rights to use, the inventions, patent
applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights and trade secrets described in the Registration
Statement and the Prospectus as being owned or licensed by them, that the
Company believes are necessary for the conduct of the business of the
Company and the Subsidiaries and which the failure to own, license or have
such rights could reasonably be expected to have a Material Adverse Effect
(collectively, "Intellectual Property"); there are no third parties that
have or, to the knowledge of the Company, will be able to establish their
rights to any Intellectual Property, except for the ownership rights of
the owners of the Intellectual Property that is licensed to the Company;
to the knowledge of the Company, there is no infringement by third parties
of any Intellectual Property; there is no pending or, to the knowledge of
the Company, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any Intellectual Property, and
the Company is unaware of any facts that would form a reasonable basis for
any such claim; there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by others challenging the
validity or scope of any Intellectual Property, and the Company is unaware
of any facts that would form a reasonable basis for any such claim; except
as disclosed in the letter to the Underwriters dated ________, 2002, there
is no pending or, to the knowledge of the Company, threatened action,
suit, proceeding or claim by others that the Company infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and except as disclosed in the letter to the
Underwriters dated ________, 2002, the Company is unaware of any facts
that would form a reasonable basis for any such claim; there is no patent
or patent application that contains claims that interfere with the issued
or pending claims of any of the Intellectual Property; and to the
knowledge of the Company, there is no prior art that may render any patent
application owned by the Company of the Intellectual Property unpatentable
that has not been disclosed to the U.S. Patent and Trademark Office;
(cc) neither the Company nor any of the Subsidiaries is engaged in any
unfair labor practice; except for matters that would not reasonably be
expected to have a Material Adverse Effect individually or in the
aggregate to the Company and the Subsidiaries, there is (i) no unfair
labor practice complaint pending or, to the knowledge of the Company,
threatened against the Company or any of the Subsidiaries before the
National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under collective bargaining agreements is pending or
threatened, (ii) no strike, labor dispute, slowdown or stoppage pending
or, to the knowledge of the Company, threatened against the Company or any
of the Subsidiaries and (iii) no union representation dispute currently
existing concerning the employees of the Company or any of the
Subsidiaries; and to the knowledge of the management of the Company or any
of the Subsidiaries, (i) no union organizing activities are currently
taking place concerning the employees of the Company or any of the
Subsidiaries and (ii) there has been no violation of any federal, state or
local law relating to discrimination in the hiring, promotion or pay of
employees, of any applicable wage or hour laws, nor any provisions of the
Employee Retirement Income Security Act of 1974 and the rules and
regulations promulgated thereunder concerning the employees of the Company
and the Subsidiaries;
(dd) each of the Company and the Subsidiaries is in compliance with any
laws, statutes, ordinances, regulations, rules, decrees, orders,
judgments, consent orders, consent decrees or other binding requirements
and the common law relating to the protection of public health or the
environment, the release or threatened release of hazardous material
(including any material, substance, waste, constituent, compound,
pollutant or contaminant, including petroleum, subject to
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regulation or that can give rise to liability under any such requirements
or laws, natural resources damages or occupational safety and health
(collectively, "Environmental Laws"); and each of the Company and the
Subsidiaries is in compliance with all material terms and conditions of
any required permits, licenses and authorizations and is also in
compliance with all other applicable limitations, restrictions,
conditions, standards, prohibitions, requirements and obligations
contained in the Environmental Laws; there are no past or present events,
conditions, activities, practices, actions, or plans relating to the
business operations or properties of the Company or any of the
Subsidiaries that could be reasonably expected to interfere with or
prevent compliance or continued compliance with the Environmental Laws or
that could be reasonably expected to give rise to any liability based on
or related to the Environmental Laws;
(ee) the Company and each of the Subsidiaries has good and marketable
title to all property (real and personal) described in the Prospectus as
being owned by it, free and clear of all liens, claims, security interests
or other encumbrances, other than encumbrances reflected in the financial
statements (or elsewhere in the Registration Statement and Prospectus) or
encumbrances that are not material in amount and do not adversely affect
the use made of such property by the Company and the Subsidiaries; and all
the property described in the Registration Statement and the Prospectus as
being held under lease by the Company or a Subsidiary is held thereby
under valid, subsisting and enforceable leases;
(ff) the Shares have been approved for listing on The Nasdaq National
Market, subject only to notice of issuance; and
(gg) the Company has not offered, or caused the Underwriters to offer,
Shares to any person pursuant to the Directed Share Program with the
specific intent to influence unlawfully (i) a customer or supplier of the
Company or any of the Subsidiaries to alter the customer's or supplier's
level or type of business with the Company or any of the Subsidiaries or
(ii) a trade journalist or publication to write or publish favorable
information about the Company or any of the Subsidiaries or an of their
respective products or services.
In addition, any certificate signed by any officer of the Company and delivered
to the representatives of the Underwriters or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
4. CERTAIN COVENANTS OF THE COMPANY. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the service
of process under the laws of any such state (except service of process
with respect to the offering and sale of the Shares); and to promptly
advise you of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) to make available to the Underwriters in New York City, as soon as
practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendments or supplements thereto after
the effective date of the Registration Statement) as the Underwriters may
reasonably request for the purposes contemplated by the Act; in case any
Underwriter is required to deliver a prospectus within the nine-month
period
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referred to in Section 10(a)(3) of the Act in connection with the sale of
the Shares, the Company will prepare promptly upon request such amendment
or amendments to the Registration Statement and such prospectuses as may
be necessary to permit compliance with the requirements of Section
10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes effective
and (ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act, which the
Company agrees to file in a timely manner under such Rules;
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for, or
the entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to make every reasonable
effort to obtain the lifting or removal of such order as soon as possible;
to advise you promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and to file no such amendment or
supplement to which you shall object in writing;
(e) subject to Section 4(o) hereof, to file promptly all reports and
any definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery
of a prospectus is required in connection with the offering or sale of the
shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(g) to furnish to you promptly and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications that the Company shall
send to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, (iii) copies of
documents or reports filed with any national securities exchange on which
any class of securities of the Company is listed, and (iv) such other
information as you may reasonably request regarding the Company or the
Subsidiaries;
(h) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to
the Shares is required to be delivered under the Act that, in the judgment
of the Company, would require the making of any change in the Prospectus
then being used so that the Prospectus would not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they are made, not misleading, and, during such time, to
prepare and furnish, at the Company's expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change and to furnish you a copy of such
proposed amendment or supplement before filing any such amendment or
supplement with the Commission;
(i) to make generally available to its security holders, and to deliver
to you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of twelve months
beginning after the effective date of the Registration Statement
-11-
(as defined in Rule 158(c) of the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but not
later than _______________, 2003;
(j) to furnish to its stockholders as soon as practicable after the end
of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and of cash flow of the Company
for such fiscal year, accompanied by a copy of the certificate or report
thereon of nationally recognized independent certified public
accountants);
(k) to furnish to you four copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto) and sufficient copies of the foregoing
(other than exhibits) for distribution of a copy to each of the other
Underwriters;
(l) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not
later than two business days prior thereto, a copy of the latest available
unaudited interim consolidated financial statements, if any, of the
Company and the Subsidiaries that have been read by the Company's
independent certified public accountants, as stated in their letter to be
furnished pursuant to Section 6(b) hereof;
(m) to apply the net proceeds from the sale of the Shares in the manner
set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to pay all reasonable costs, expenses, fees and taxes (other than
any transfer taxes and fees and disbursements of counsel for the
Underwriters except as set forth under Section 5 hereof and (iii), (iv),
(vi) and (vii) below and other than expenses which the Underwriters by
separate agreement agree to reimburse the Company) in connection with (i)
the preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Shares, (iii) the producing,
word processing and/or printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Powers of Attorney and any
closing documents (including compilations thereof) and the reproduction
and/or printing and furnishing of copies of each thereof to the
Underwriters and (except closing documents) to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering
and sale under state laws and the determination of their eligibility for
investment under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel for the Underwriters) and
the printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (v) any
qualification of the Shares for quotation on The Nasdaq National Market
and any registration thereof under the Exchange Act, (vi) any filing for
review of the public offering of the Shares by the NASD, including the
legal fees and filing fees and other disbursements of counsel to the
Underwriters, (vii) the Directed Share Program, including the legal fees
and filing fees and other disbursements of counsel for the Underwriters,
(viii) the costs and expenses of the Company relating to presentations or
meetings undertaken in connection with the marketing of the offer and sale
of the Shares to prospective investors and the Representatives' sales
forces, including expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged with the
consent of the Company in connection with the road show presentations,
travel, lodging and other expenses incurred by the officers of the Company
any such consultants, and the cost of any aircraft chartered in connection
with the road show, and (ix) the performance of the Company's other
obligations hereunder;
(o) to furnish to you, before filing with the Commission subsequent to
the effective date of the Registration Statement and during the period
referred to in paragraph (e) above, a copy of any document proposed to be
filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
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(p) not to sell, offer or agree to sell, contract to sell, hypothecate,
pledge, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock or warrants or other rights
to purchase Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or file or cause to be declared
effective a registration statement under the Act relating to the offer and
sale of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or other rights to purchase
Common Stock or any other securities of the Company that are substantially
similar to Common Stock for a period of 180 days after the date hereof
(the "Lock-Up Period"), without the prior written consent of UBS Warburg,
except for (i) the registration of the Shares and the sales to the
Underwriters pursuant to this Agreement, (ii) issuances of Common Stock
upon the exercise of options issued under the 1999 Stock Option Plan or
warrants disclosed as outstanding in the Registration Statement and the
Prospectus, (iii) the issuance of stock options not exercisable during the
Lock-Up Period pursuant to stock option plans described in the
Registration Statement and the Prospectus, and (iv) the registration on
Form S-8 of shares of Common Stock issuable under the 2002 Employee Stock
Purchase Plan, the 1999 Stock Option Plan, the 2000 Stock Incentive Plan,
the 2002 Key Executive Stock Incentive Plan and the 2002 Stock Incentive
Plan;
(q) if, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible and
will advise you promptly and, if requested by you, will confirm such
advice in writing, when the Registration Statement or such post-effective
amendment has become effective; and
(r) not to release or purport to release any person from any Lock-Up
Agreement without the prior written consent of UBS Warburg; not to release
or purport to release any person from any provision of the Special
Agreements relating to the Lock-Up Period without the prior written
consent of UBS Warburg; and to enter stop transfer instructions with its
transfer agent and registrar against the transfer of any Common Stock
subject to a Lock-Up Agreement or a Special Agreement, and not to release
or purport to release such transfer restrictions without the prior written
consent of UBS Warburg.
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 8 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of their counsel.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties on the part of the Company on the date hereof and at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof and at the time of purchase (unless
previously waived) and at the additional time of purchase, as the case may be),
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of Xxxxxx,
Xxxxx & Xxxxxxx LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
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purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form reasonably satisfactory to Xxxx and Xxxx LLP,
counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and the Prospectus, to execute and deliver this Agreement and
to issue, sell and deliver the Shares as herein contemplated;
(ii)each of the Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation with full corporate power and authority
to own, lease and operate its properties and to conduct its business;
(iii) the Company and the Subsidiaries are duly qualified or licensed
in the jurisdictions listed on SCHEDULE B hereto;
(iv) this Agreement has been duly authorized, executed and delivered by
the Company;
(v) the Shares have been duly authorized and, when issued and delivered
to and paid for by the Underwriters in accordance with this Agreement,
will be validly issued and will be fully paid and non-assessable;
(vi) the Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus; the outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid, nonassessable and free of statutory (under
the Delaware General Corporation Law) and, to such counsel's knowledge,
contractual preemptive rights, resale rights, rights of first refusal
and similar rights; the Shares when issued will be free of statutory
and contractual preemptive rights; the certificates for the Shares are
in due and proper form under the Delaware General Corporation Law;
(vii) all of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and non-assessable and, except as otherwise stated in the
Registration Statement, are owned by the Company, in each case subject
to no security interest, other encumbrance or adverse claim, other than
as disclosed in the Registration Statement; to such counsel's
knowledge, no options, warrants or other rights to purchase, agreements
or other obligations to issue or other rights to convert any obligation
into shares of capital stock or ownership interests in the Subsidiaries
are outstanding;
(viii) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
section entitled "Description of capital stock" in the Registration
Statement and the Prospectus;
(ix) the Registration Statement and the Prospectus (except as to the
financial statements and schedules and other financial and statistical
data contained therein, as to which such counsel need express no
opinion) as of the effective date of the Registration Statement comply
as to form in all material respects with the requirements of the Act;
-14-
(x) the Registration Statement has become effective under the Act and,
to such counsel's knowledge, no stop order proceedings with respect
thereto are pending or threatened under the Act and any required filing
of the Prospectus and any supplement thereto pursuant to Rule 424 under
the Act has been made in the manner and within the time period required
by such Rule 424;
(xi) no approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance
and sale of the Shares and consummation by the Company of the
transactions as contemplated hereby other than registration of the
Shares under the Act and the Exchange Act (except such counsel need
express no opinion as to any necessary qualification under the state
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters);
(xii) the execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby do not and will not result in any breach of, or
constitute a default under (nor constitute any event that with notice,
lapse of time, or both, would result in any breach of, or constitute a
default under), any provisions of the charter or by-laws of the Company
or any of the Subsidiaries or under any provision of any agreement or
instrument filed as an exhibit to the Registration Statement, or under
any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of the
Subsidiaries;
(xiii) to such counsel's knowledge, neither the Company nor any of the
Subsidiaries is in violation of its charter or by-laws or is in breach
of, or in default under (nor has any event occurred that with notice,
lapse of time, or both would result in any breach of, or constitute a
default under), any agreement or instrument filed as an exhibit to the
Registration Statement to which the Company or any of the Subsidiaries
is a party or by which any of them or their respective properties may
be bound or affected or under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the
Company or any of the Subsidiaries;
(xiv) to such counsel's knowledge, there are no contracts, licenses,
agreements, leases or documents of a character that are required to be
filed as exhibits to the Registration Statement or to be summarized or
described in the Prospectus that have not been so filed, summarized or
described as required;
(xv) to such counsel's knowledge, there are no actions, suits, claims,
investigations or proceedings pending, threatened or contemplated to
which the Company or any of the Subsidiaries is subject or of which any
of their respective properties is subject at law or in equity or before
or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency that are required to be
described in the Prospectus but are not so described as required;
(xvi) the Company will not, upon consummation of the transactions
contemplated by this Agreement, be an "investment company," or a
"promoter" or "principal underwriter" for, a "registered investment
company," as such terms are defined in the Investment Company Act of
1940, as amended;
-15-
(xvii) such counsel has read the statements in the Prospectus under the
captions "Business - Legal Proceedings," "Management - Employment and
Other Agreements," "Management - Stock Plans," "Related party
transactions," "Description of capital stock" and "Shares eligible for
future sale," and insofar as such statements constitute summaries of
legal matters, contracts, agreements, documents or proceedings referred
to therein, or refer to the statements of law or legal conclusions,
such statements are accurate in all material respects and present
fairly the information purported to be shown; and
(xviii) no person has the right, pursuant to the terms of any contract,
agreement or other instrument described in or filed as an exhibit to
the Registration Statement or otherwise known to such counsel to have
any securities issued by the Company and owned by them registered
pursuant to the Act, included in the Registration Statement or sold in
the offering contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the transactions
contemplated by this Agreement or other wise, except for such rights as
have been complied with or waived.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters, at which conferences the contents of the
Registration Statement and the Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as and to the extent stated in the first
clause of subparagraph (vi) ending with the word "Prospectus" and in
subparagraphs (viii) and (xviii) above), on the basis of the foregoing and the
information disclosed to such counsel, but without independent verification
(relying in part, in any determination as to materiality, upon the officers and
other representatives of the Company), nothing has come to the attention of such
counsel that causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at all times up to and including
the time of purchase or additional time of purchase, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief with
respect to the financial statements, schedules, notes, or other financial,
statistical and accounting data included in the Registration Statement or the
Prospectus).
In rendering such opinion, such counsel may rely as to questions of fact upon
representations or certificates of officers of the Company and of government
officials. In addition, such counsel's opinion with respect to the Company's
ownership of all of the outstanding capital stock of the Subsidiaries set forth
in subparagraph (vii) above may be based on such counsel's review of the stock
records of the Subsidiaries.
(b) You shall have received from Ernst & Young LLP, letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in the
forms heretofore approved by UBS Warburg.
-16-
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion of
Xxxx and Xxxx LLP, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, as to the
matters referred to in subparagraphs (iv), (v), (viii) (with respect to
the Shares only) and (x) of paragraph (a) of this Section 6. In addition,
such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
counsel for the Company, representatives of the independent public
accountants of the Company and representatives of the Underwriters at
which the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement and
the Prospectus (except as to matters referred to with respect to the
Shares under subparagraph (viii) of paragraph (a) of this Section 6), on
the basis of the foregoing (relying as to materiality to a large extent
upon the opinions of officers and other representatives of the Company),
no facts have come to the attention of such counsel that lead them to
believe that (i) the Registration Statement and the Prospectus do not
comply as to form in all material respects with the requirements of the
Act, (ii) the Registration Statement or any amendment thereto at the time
such Registration Statement or amendment became effective contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or (iii) the Prospectus as of its date or any supplement
thereto as of its date contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that, with respect to the statements made pursuant to clauses
(i), (ii) and (iii), such counsel need express no comment with respect to
the financial statements and schedules and other financial and statistical
data included in the Registration Statement or the Prospectus).
(d) No amendment or supplement to the Registration Statement or the
Prospectus shall be filed prior to the time the Registration Statement
becomes effective to which you object in writing.
(e) The Registration Statement shall become effective not later than
5:30 P.M., New York City time, on the date of this Agreement and, if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act, at or before 5:30 P.M.,
New York City time, on the second full business day after the date of this
Agreement.
(f) Prior to and as of the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act,
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not have contained, and shall not
contain, an untrue statement of a material fact and shall not have
omitted, and shall not omit, to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not have contained, and shall not
contain, an untrue statement of a material fact and shall not have
omitted, and shall not omit, to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not misleading.
(g) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, (i) no
material and unfavorable change or any development involving a material
adverse change, financial or otherwise (other than as specifically
-17-
identified in the Registration Statement and the Prospectus), in the
business, properties, financial condition, results of operation or
prospects of the Company and the Subsidiaries taken as a whole shall occur
or become known and (ii) no transaction that is material and unfavorable
to the Company shall have been entered into by the Company or any of the
Subsidiaries.
(h) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate of its
President and Chief Executive Officer and its Chief Financial Officer and
Chief Operating Officer to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of such date, that the Company has performed such of its
obligations under this Agreement as are to be performed at or before the
time of purchase or the additional time of purchase, as the case may be,
and the conditions set forth in paragraphs (f) and (g) of this Section 6
have been met.
(i) Each of the Lock-Up Agreements shall be in full force and effect in
accordance with its terms.
(j) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase and
the additional time of purchase, as the case may be, as you may reasonably
request.
7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of you or any group of Underwriters
(which may include you) that has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statement
and the Prospectus, (x) there has been any material adverse change, financial or
otherwise (other than as specifically identified in the Registration Statement
and the Prospectus), in the operations, business, properties, financial
condition, results of operation or prospects of the Company and the Subsidiaries
taken as a whole, that would, in your judgment or in the judgment of such group
of Underwriters, make it impracticable to market the Shares, or (y) there shall
have occurred: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, American Stock Exchange, The Nasdaq
National Market or The Nasdaq SmallCap Market; (ii) a suspension or material
limitation in trading in the Company's securities on The Nasdaq National Market;
(iii) a general moratorium on commercial banking activities declared by Federal,
New York State or Pennsylvania authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war ;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v), in the judgment
of the Representatives, makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and the Prospectus.
If you or any group of Underwriters elects to terminate this Agreement as
provided in this Section 7, the Company and each other Underwriter shall be
notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out
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because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 4(n), 5 and 9 hereof), and
the Underwriters shall be under no obligation or liability to the Company under
this Agreement (except to the extent provided in Section 9 hereof) or to one
another hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections 6 and 7, if
any Underwriter shall default in its obligation to take up and pay for the Firm
Shares to be purchased by it hereunder (otherwise than for a reason sufficient
to justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares that all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters shall take up and
pay for (in addition to the aggregate number of Firm Shares they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as you may designate with the consent of
each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters
pro rata in proportion to the aggregate number of Firm Shares set opposite the
names of such non-defaulting Underwriters in SCHEDULE A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in SCHEDULE A hereto.
If the aggregate number of Shares that the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Shares that
all Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Shares that the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
terminate without further act or deed and without any liability on the part of
the Company to any non-defaulting Underwriter and without any liability on the
part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) that,
jointly or severally, any such Underwriter or any such person
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may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or
is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof
by the Company) or in a Prospectus (the term Prospectus for the purpose of
this Section 9 being deemed to include any Preliminary Prospectus, the
Prospectus and the Prospectus as amended or supplemented by the Company),
or arises out of or is based upon any omission or alleged omission to
state a material fact required to be stated in either such Registration
Statement or Prospectus or necessary to make the statements made therein
not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of any Underwriter
through you to the Company expressly for use with reference to such
Underwriter in such Registration Statement or such Prospectus or arises
out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in
such Registration Statement or such Prospectus or necessary to make such
information not misleading, (ii) any untrue statement or alleged untrue
statement made by the Company in Section 3 of this Agreement or the
failure by the Company to perform when and as required any agreement or
covenant contained herein, (iii) any untrue statement or alleged untrue
statement of any material fact contained in any audio or visual materials
provided by the Company or based upon written information furnished by or
on behalf of the Company including slides, videos, films or tape
recordings used in connection with the marketing of the Shares, or (iv)
the Directed Share Program, provided that the Company shall not be
responsible under this clause (iv) for any loss, damage, expense,
liability or claim that is finally judicially determined to have resulted
from the gross negligence or willful misconduct of the Underwriters in
conducting the Directed Share Program, provided, however, that the
indemnity agreement contained in this subsection (a) with respect to any
Preliminary Prospectus or amended Preliminary Prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such
loss, damage, expense, liability or claim purchased the Shares that is the
subject thereof if the Prospectus corrected any such alleged untrue
statement or omission and if such Underwriter failed to send or give a
copy of the Prospectus to such person at or prior to the written
confirmation of the sale of such Shares to such person, unless the failure
is the result of noncompliance by the Company with Section 4(g) hereof.
If any action, suit or proceeding (each a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph,
such Underwriter or such person shall promptly notify the Company in
writing of the institution of such Proceeding and the Company shall assume
the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees
and expenses; provided, however, that the omission to so notify the
Company shall not relieve the Company from any liability that the Company
may have to any Underwriter or any such person or otherwise, except to the
extent the Company shall not have otherwise learned of such Proceeding and
such omission results in the forfeiture by the Company of substantial
rights and defenses. Such Underwriter or such person shall have the right
to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or of
such person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of
such Proceeding or the Company shall not have, within a reasonable period
of time in light of the circumstances, employed counsel to have charge of
the defense of such Proceeding or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or
them that are different from, additional to or in conflict with those
available to the Company (in which case the Company shall not have the
right to direct the defense of such Proceeding on behalf of the
indemnified party or
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parties), in any of which events such fees and expenses shall be borne
by the Company and paid as incurred (it being understood, however, that
the Company shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series
of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The Company shall
not be liable for any settlement of any Proceeding effected without its
written consent but if settled with the written consent of the Company,
the Company agrees to indemnify and hold harmless any Underwriter and any
such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected
without its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability
or a failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who
controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) that,
jointly or severally, the Company or any such person may incur under the
Act, the Exchange Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained
in and in conformity with information furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use with
reference to such Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof
by the Company) or in a Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with
such information required to be stated in such Registration Statement or
such Prospectus or necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such person
in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall
promptly notify such Underwriter in writing of the institution of such
Proceeding and such Underwriter shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses; provided,
however, that the omission to so notify such Underwriter shall not relieve
such Underwriter from any liability that such Underwriter may have to the
Company or any such person or otherwise, except to the extent the
Underwriter shall not have otherwise learned of such Proceeding and such
omission results in the forfeiture by the Underwriter of substantial
rights and defenses. The Company or such person shall have the right to
employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company or such person unless the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have,
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within a reasonable period of time in light of the circumstances,
employed counsel to defend such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them that are different from or additional to or in
conflict with those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties, but such
Underwriter may employ counsel and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne
by such Underwriter and paid as incurred (it being understood, however,
that such Underwriter shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding).
No Underwriter shall be liable for any settlement of any such Proceeding
effected without the written consent of such Underwriter but if settled
with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Company and any such person from and
against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, then the indemnifying party agrees that
it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions
that resulted in such losses, damages, expenses, liabilities or claims, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, bear
to the aggregate public offering price of the Shares. The relative fault
of the Company on the one hand and of the Underwriters on the other shall
be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection
-22-
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in subsection
(c) above. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by such
Underwriter and distributed to the public were offered to the public
exceeds the amount of any damage that such Underwriter has otherwise been
required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section
9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any Underwriter,
its partners, directors or officers or any person (including each partner,
officer or director of such person) who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or
by or on behalf of the Company, its directors or officers or any person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Company and each
Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company, against any of the
Company's officers or directors in connection with the issuance and sale
of the Shares, or in connection with the Registration Statement or the
Prospectus.
10. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth in
the last paragraph on the cover page of the Prospectus and the statements set
forth in the fifth, seventh, tenth and eleventh paragraphs under the caption
"Underwriting" in the Prospectus constitute the only information furnished by or
on behalf of the Underwriters as such information is referred to in Sections 3
and 9 hereof.
11. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at Printcafe
Software, Inc., Forty 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
President and Chief Executive Officer.
12. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement (a "Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement. The term
"including" as used in this Agreement shall not be construed so as to exclude
any other thing not referred to or described.
13. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York,
-23-
which courts shall have jurisdiction over the adjudication of such matters, and
each of the Company and each Underwriter consents to the jurisdiction of such
courts and personal service with respect thereto. Each of the Company and each
Underwriter hereby consents to personal jurisdiction, service and venue in any
court in which any Claim arising out of or in any way relating to this Agreement
is brought by any third party against any indemnified party. Each of the Company
and each Underwriter (on its behalf and, to the extent permitted by applicable
law, on behalf of its stockholders and affiliates) waives all right to trial by
jury in any action, proceeding or counterclaim (whether based upon contract,
tort or otherwise) in any way arising out of or relating to this Agreement. Each
of the Company and each Underwriter agrees that a final judgment in any such
action, proceeding or counterclaim brought in any such court shall be conclusive
and binding upon each of the Company and each Underwriter and may be enforced in
any other courts in the jurisdiction of which the Company is or may be subject,
by suit upon such judgment.
14. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company and to the
extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts that together shall constitute one and the same agreement
among the parties.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
If the foregoing correctly sets forth the understanding among the Company
and the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement among the Company and the Underwriters, severally.
[Remainder of Page Intentionally Left Blank]
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Very truly yours,
PRINTCAFE SOFTWARE, INC.
By:
---------------------------------------
Title:
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in SCHEDULE A hereto
UBS WARBURG LLC
XXXXXXXXX XXXXXXXX, INC.
U.S. BANCORP XXXXX XXXXXXX INC.
MCDONALD INVESTMENTS INC.
By: UBS Warburg LLC
By:
------------------------
Title:
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SHARES
UBS Warburg LLC...................................................
U.S. Bancorp Xxxxx Xxxxxxx Inc....................................
Xxxxxxxxx Xxxxxxxx, Inc...........................................
McDonald Investments Inc..........................................
---------
Total........................................................ 3,750,000
=========
SCHEDULE B
EXHIBIT A
LOCK-UP AGREEMENT
UBS WARBURG LLC
As Lead Representative of the several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Printcafe Software, Inc.
-----------------------
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the
underwriting agreement (the "Underwriting Agreement") proposed to be entered
into by Printcafe Software, Inc. (the "Company") and you, as lead representative
of the several underwriters to be named therein, with respect to a public
offering (the "Offering") of common stock, par value $0.0001 per share, of the
Company (the "Common Stock").
In order to induce the several underwriters to enter into the Underwriting
Agreement, the undersigned agrees that, during the period commencing on the date
hereof and ending 180 days after the date of the final prospectus relating to
the Offering, the undersigned will not, without the prior written consent of UBS
Warburg LLC:
(i) sell, offer to sell, contract to sell, hypothecate, pledge, grant any
option to purchase or otherwise dispose of, directly or indirectly, contract to
dispose of, or file (or participate in the filing of) a registration statement
with the Securities and Exchange Commission (the "Commission") in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder with respect to, any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants or
other rights to purchase Common Stock (including in each such case any Common
Stock or any such securities, warrants or other rights that may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Commission promulgated under the Securities Act of 1933, as
amended),
(ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of beneficial ownership of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, or warrants or other rights to purchase Common Stock, whether
any such transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or
(iii) publicly announce an intention to effect any transaction specified
in clause (i) or (ii).
The foregoing sentence shall not apply to any bona fide gift by the undersigned
or any disposition to a trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that each gift
recipient or trust agrees in writing to be bound by the terms of this Lock-Up
Agreement and confirms that it has been in compliance with the terms of this
Lock-Up Agreement since the date hereof. For the purposes of the preceding
sentence, "immediate family" shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin. The undersigned also
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agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of the undersigned's
Common Stock except in compliance with the foregoing restrictions.
In addition, the undersigned hereby waives any rights the undersigned may
have to require registration of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock in connection with the filing of
a registration statement relating to the Offering. The undersigned further
agrees that, during the period commencing on the date hereof and ending 180 days
after the date of the final prospectus relating to the Offering, the undersigned
will not, without the prior written consent of UBS Warburg LLC, make any demand
for, or exercise any right with respect to, the registration of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock.
If (i) the Company notifies you in writing that it does not intend to
proceed with the Offering, (ii) the registration statement filed with the
Commission with respect to the Offering is withdrawn prior to any sale of Common
Stock registered thereunder or (iii) for any reason the Underwriting Agreement
shall be terminated prior to the time of purchase (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder. The undersigned
understands that this Lock-Up Agreement is irrevocable and shall be binding upon
the undersigned's heirs, legal representatives, successors and assigns.
Yours very truly,
Dated: , 2002
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(Signature)
Name and Address (please print or type):
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