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EXHIBIT 1.01
ONESOURCE INFORMATION SERVICES, INC.
_____ Shares Common Stock(1)
UNDERWRITING AGREEMENT
_______________, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
As Representatives of the Several
Underwriters Named in Schedule A
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SECTION 1. Introductory. OneSource Information Services, Inc., a
Delaware corporation (the "Company"), as of the First Closing Date (hereinafter
defined) but excluding the transactions contemplated hereby, will have an
authorized capital stock consisting of ______ shares of Preferred Stock, $.01
par value, of which no shares will be outstanding as of such date and ________
shares of Common Stock, $.01 par value ("Common Stock"), of which ____________
shares will be outstanding as of such date. The Company proposes to issue and
sell 1,750,000 shares of its authorized but unissued Common Stock, and certain
stockholders of the Company (collectively referred to as the "Venture Capital
Selling Stockholders" and named in Schedule B-1) propose to sell ______ shares
of the Company's issued and outstanding Common Stock to the several underwriters
("Underwriters") named in Schedule A, as it may be amended by the Pricing
Agreement (hereinafter defined), who are acting severally and not jointly.
Collectively, such total of ___________ shares of Common Stock proposed to be
sold by the Company and the Venture Capital Selling Stockholders is hereinafter
referred to as the "Firm Shares." In addition, the Venture Capital Selling
Stockholders and certain other stockholders of the Company (collectively
referred to as the "Management Selling Stockholders" and named in Schedule B-2,
and together with the Venture Capital Selling Stockholders being collectively
referred to as the "Selling Stockholders" propose to grant to the Underwriters
an option to purchase up to an aggregate of __________ additional shares of
Common Stock ("Option Shares") as provided in Section 5 hereof. The Firm Shares
and, to the extent such option is exercised, the Option Shares, are hereinafter
collectively referred to as the "Shares."
You have advised the Company and the Selling Stockholders that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon as you deem advisable after the registration statement
hereinafter referred to becomes effective, if it has not yet become effective,
and the Pricing Agreement (hereinafter defined) has been executed and delivered.
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(1)Plus an option to acquire up to __ additional shares to cover
over-allotments.
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Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company, the Selling Stockholders and the Representatives,
acting on behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto ("Pricing Agreement"). The Pricing
Agreement may take the form of an exchange of any standard form of written
telecommunication between the Company, the Selling Stockholders and the
Representatives and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by this Agreement,
as supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be deemed
to incorporate the Pricing Agreement.
The Company and the Underwriters agree that up to _____ Shares to be
purchased by the Underwriters ("Reserved Shares") shall be reserved for sale by
the Underwriters to certain eligible employees and other persons, subject to the
terms of this Agreement, the Pricing Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. ("NASD") and all other applicable laws, rules and regulations. To
the extent that such Reserved Shares are not orally confirmed for purchase by
such eligible employees and other persons by the end of the first business day
after the date of this Agreement, such Reserved Shares may be offered to the
public as part of the public offering contemplated hereby.
The Company and each of the Selling Stockholders hereby confirm their
agreements with the Underwriters as follows:
SECTION 2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, the several Underwriters
that:
(a) A registration statement on Form S-1 (File No.
333-_______) and a related preliminary prospectus with respect to the
Shares have been prepared and filed with the Securities and Exchange
Commission ("Commission") by the Company in conformity with the
requirements of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the "1933
Act;" unless indicated to the contrary, all references herein to
specific rules are rules promulgated under the ▇▇▇▇ ▇▇▇); and the
Company has so prepared and has filed such amendments thereto, if any,
and such amended preliminary prospectuses as may have been required to
the date hereof and will file such additional amendments thereto and
such amended prospectuses as may hereafter be required. There have been
or will promptly be delivered to you three signed copies of such
registration statement and amendments, three copies of each exhibit
filed therewith, and conformed copies of such registration statement
and amendments (but without exhibits) and copies of the related
preliminary prospectus or prospectuses and final forms of prospectus
for each of the Underwriters.
Such registration statement (as amended, if
applicable) at the time it becomes effective and the prospectus
constituting a part thereof at such time (including the information, if
any, deemed to be part thereof pursuant to Rule 430A(b) and/or Rule
434),
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as from time to time amended or supplemented, are hereinafter referred
to as the "Registration Statement," and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the
Underwriters by the Company for use in connection with the offering of
the Shares which differs from the Prospectus on file at the Commission
at the time the Registration Statement became or becomes effective
(whether or not such revised prospectus is required to be filed by the
Company pursuant to Rule 424(b)), the term Prospectus shall refer to
such revised prospectus from and after the time it was provided to the
Underwriters for such use. If the Company elects to rely on Rule 434 of
the 1933 Act, all references to "Prospectus" shall be deemed to
include, without limitation, the form of prospectus and the term sheet,
taken together, provided to the Underwriters by the Company in
accordance with Rule 434 ("Rule 434 Prospectus"). Any registration
statement (including any amendment or supplement thereto or information
which is deemed part thereof) filed by the Company under Rule 462(b)
("Rule 462(b) Registration Statement") shall be deemed to be part of
the "Registration Statement" as defined herein, and any prospectus
(including any amendment or supplement thereto or information which is
deemed part thereof) included in such registration statement shall be
deemed to be part of the "Prospectus" as defined herein, as
appropriate. The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder are hereinafter
collectively referred to as the "Exchange Act."
(b) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, and each preliminary
prospectus has conformed in all material respects with the requirements
of the 1933 Act and, as of its date, did not include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances
in which they were made, not misleading; and when the Registration
Statement became or becomes effective, and at all times subsequent
thereto, up to the First Closing Date or the Second Closing Date (as
such terms are hereinafter defined), as the case may be, the
Registration Statement, including the information deemed to be part of
the Registration Statement at the time of effectiveness pursuant to
Rule 430A(b), if applicable, and the Prospectus and any amendments or
supplements thereto, contained or will contain all statements that are
required to be stated therein in accordance with the 1933 Act and in
all material respects conformed or will in all material respects
conform to the requirements of the 1933 Act, and neither the
Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, included or will include any untrue statement of a
material fact or omitted or will omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or omitted
from any preliminary prospectus, the Registration Statement, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
use in the preparation thereof.
(c)(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 corporate power and authority to own or lease its
properties and conduct its business as described in the
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Prospectus; the Company is duly qualified to transact business as a
foreign corporation under the corporation law of, and is in good
standing as such in, each jurisdiction where the ownership or leasing
of property, having an office or the conduct of its business requires
such qualification, except in any such case where the failure to so
qualify or be in good standing would not have a material adverse effect
upon the condition (financial or otherwise) or results of operations of
the Company and its subsidiary, OneSource Information Services Limited
("OneSource U.K."), taken as a whole (a "Material Adverse Effect"); and
no proceeding of which the Company has knowledge has been instituted in
any such jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority, qualification or
good standing.
(ii) The Merger Agreement (the "Merger Agreement") between
the Company and its prior wholly owned subsidiary, OneSource
Information Services, Inc. (the "Operating Subsidiary"), has been duly
authorized, executed and delivered by all parties thereto, and
constitutes the legal, valid and binding obligation of each of the
parties thereto, enforceable in accordance with its terms. The closing
under the Merger Agreement has occurred in accordance with its terms,
the certificate of merger relating thereto has been duly filed with the
State of Delaware, and all of the business and assets previously held
by the Operating Subsidiary have been transferred to the Company. As
used in Sections 2(c)(i), (k), (s), (t), (u) and (v), the term
"Company" shall mean (i) the Company and (ii) with respect to any
period or portion thereof prior to the consummation of the Merger
Agreement, the Operating Subsidiary.
(iii) OneSource U.K. has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the United Kingdom, with corporate power and authority to own or lease
its properties and conduct its business as described in the Prospectus;
OneSource U.K. is duly qualified to transact business as a foreign
corporation under the corporation law of, and is in good standing as
such in, each jurisdiction where the ownership or leasing of property,
having an office, or the conduct of its business requires such
qualification, except in any such case where the failure to so qualify
or be in good standing would not have a Material Adverse Effect; and no
proceeding of which the Company has knowledge has been instituted in
any such jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority, qualification or
good standing.
(d) Except as disclosed in the Registration Statement,
the Company owns directly 100 percent of the issued and outstanding
capital stock of OneSource U.K., free and clear of any claims, liens,
encumbrances or security interests and all of such capital stock has
been duly authorized and validly issued and is fully paid and
nonassessable. The Company does not own any capital stock or other
equity securities or interests in any entity other than OneSource U.K.
(e) The issued and outstanding shares of each class of
capital stock of the Company as set forth in the Prospectus under the
caption "Capitalization" have been duly authorized and validly issued,
are fully paid and nonassessable, and conform to the description
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thereof contained in the Prospectus, and, except as disclosed in the
Prospectus, there are no options, rights or warrants for the purchase
from the Company of Common Stock, or securities convertible into Common
Stock, and there are no agreements to which the Company is a party with
respect thereto.
(f) The Shares to be sold by the Company have been duly
authorized and when issued and delivered by the Company and paid for by
the Underwriters pursuant to this Agreement, will be validly issued,
fully paid and nonassessable, and will conform to the description
thereof contained in the Prospectus.
(g) The execution, delivery and performance by the
Company of this Agreement and the Pricing Agreement have been duly
authorized by all necessary corporate action and will not violate any
provision of the Company's charter or bylaws and will not conflict
with, constitute a breach of, or default under, or violate any
provision of any agreement, franchise, license, indenture, mortgage,
deed of trust, or other instrument to which the Company or OneSource
U.K. is a party or by which the Company or OneSource U.K. is or may be
bound or to which the property or assets of either of them is subject,
or any statute, law, rule, regulation, ruling, judgment, injunction,
order or decree applicable to the Company or OneSource U.K. or to
either of their respective properties or assets. No consent, approval,
authorization or other order of, or filing or registration with, any
court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of this Agreement or
the Pricing Agreement by the Company or the consummation by the Company
of the transactions contemplated herein or therein, except for
compliance with the 1933 Act and blue sky laws applicable to the public
offering of the Shares by the several Underwriters and clearance of
such offering with the NASD. This Agreement has been duly executed and
delivered by the Company.
(h) The accountants who have expressed their opinions
with respect to certain of the financial statements and schedules
included in the Registration Statement are independent accountants as
required by the 1933 Act.
(i) The consolidated financial statements and schedule of
the Company included in the Registration Statement present fairly the
consolidated financial position of the Company as of the respective
dates of such financial statements, and the consolidated statements of
operations, changes in stockholders' deficit and cash flows of the
Company for the respective periods covered thereby, all in conformity
with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed in the Prospectus;
and the supporting schedule included in the Registration Statement
presents fairly the information required to be stated therein. The
financial information set forth in the Prospectus under "Selected
Consolidated Financial Data" presents fairly on the basis stated in the
Prospectus, the information set forth therein.
(j) Neither the Company nor OneSource U.K. is in
violation of its charter or in default under any consent decree, or in
default with respect to any material provision of any lease, loan
agreement, franchise, license, permit or other contract obligation to
which it is a
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party; and there does not exist any state of facts which constitutes an
event of default as defined in such documents or which, with notice or
lapse of time or both, would constitute such an event of default, in
each case, except for defaults which neither singly nor in the
aggregate would have a Material Adverse Effect.
(k) There are no material legal or governmental
proceedings or investigations pending, or to the Company's knowledge,
threatened to which the Company or OneSource U.K. is or may be a party
or of which material property owned or leased by the Company or
OneSource U.K. is or may be the subject, or related to environmental or
discrimination matters which are not disclosed in the Prospectus, or
which question the validity of this Agreement or the Pricing Agreement
or any action taken or to be taken pursuant hereto or thereto.
(l) There are no holders of securities of the Company
having preemptive rights to purchase Common Stock. All holders of
registration rights are participating as Selling Stockholders (and with
respect to the amount of Shares agreed to by such holder) or have duly
and validly waived such rights with respect to the offering being made
by the Prospectus.
(m) The Company and OneSource U.K. have good and
marketable title to all the properties and assets reflected as owned in
the financial statements hereinabove described (or elsewhere in the
Prospectus), subject to no claim, lien, mortgage, pledge, charge or
encumbrance of any kind except those, if any, reflected in such
financial statements (or elsewhere in the Prospectus) or which would
not have a Material Adverse Effect. The Company and OneSource U.K. hold
their respective leased properties which are material to the Company
and OneSource U.K., taken as a whole, under valid and binding leases.
(n) The Company has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(o) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus, and
except as contemplated by the Prospectus, the Company and OneSource
U.K., taken as a whole, have not incurred any material liabilities or
obligations, direct or contingent, nor entered into any material
transactions not in the ordinary course of business and there has not
been any material adverse change in their condition (financial or
otherwise) or results of operations nor any change in their capital
stock or material change in their short-term debt or long-term debt.
(p) For a period of 180 days after the date of this
Agreement, the Company agrees not to (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale
of, or otherwise dispose of or transfer any shares of Common Stock or
any securities convertible into or
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exchangeable or exercisable for Common Stock, or file any registration
statement under the 1933 Act with respect to any of the foregoing or
(ii) enter into any swap or any other agreement or transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. Notwithstanding the prior sentence,
after the date of this Agreement the Company may issue shares of Common
Stock upon the exercise of options outstanding on the date hereof and
90 days after the date of this Agreement the Company may file
Registration Statements on Form S-8 with respect to the equity-based
incentive plans described in the Prospectus. The Company has obtained
similar agreements from each of its executive officers, directors and
certain other security-holders.
(q) There is no document 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 which is not
described or filed as required.
(r) No relationship, direct or indirect, exists between
or among the Company or OneSource U.K., on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or OneSource U.K., on the other hand, which is required to be
described in the Prospectus that is not so described.
(s) The Company, together with OneSource U.K., owns and
possesses all right, title and interest in and to, or has duly licensed
from third parties, all patents, patent rights, trade secrets,
inventions, know-how (including trade secrets and proprietary or
confidential information), trademarks, trade names, copyrights, service
marks and other proprietary rights ("Trade Rights") material to the
business of the Company and OneSource U.K., as currently conducted,
taken as a whole. Neither the Company nor OneSource U.K. has received
any notice of infringement, misappropriation or conflict from any third
party as to any such material Trade Rights which has not been resolved
or disposed of and neither the Company nor OneSource U.K. has
infringed, misappropriated or otherwise conflicted with material Trade
Rights of any third party, which infringement, misappropriation or
conflict would have a Material Adverse Effect.
(t) The conduct of the business of each of the Company
and OneSource U.K. is in compliance in all respects with applicable
federal, state, local and foreign laws and regulations, except where
the failure to be in compliance would not have a Material Adverse
Effect.
(u) All offers and sales of the Company's capital stock
prior to the date hereof were at all relevant times exempt from the
registration requirements of the 1933 Act and were duly registered with
or the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky laws.
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(v) The Company has filed all necessary federal and state
income and franchise tax returns, and OneSource U.K. has filed all
necessary foreign tax returns, and each of the Company and OneSource
U.K. has paid all taxes shown as due thereon, and there is no tax
deficiency that has been, or to the knowledge of the Company might be,
asserted against the Company or OneSource U.K. or any of their
respective properties or assets that would or could be expected to have
a Material Adverse Effect.
(w) The Company has filed a registration statement
pursuant to Section 12(g) of the Exchange Act to register the Common
Stock thereunder, has filed an application to list the Common Stock
(including the Shares) on the Nasdaq National Market, and has received
notification that the listing has been approved, subject to notice of
issuance or sale of the Shares, as the case may be.
(x) The Company is not, and does not intend to conduct
its business in a manner in which it would become, an "investment
company" as defined in Section 3(a) of the Investment Company Act of
1940, as amended ("Investment Company Act").
SECTION 3. Representations, Warranties and Covenants of the Selling
Stockholders.
(a) Each Selling Stockholder, severally and not jointly,
represents and warrants to, and agrees with, the Company and the
several Underwriters that:
(i) Such Selling Stockholder has, and on the
First Closing Date or the Second Closing Date (as such terms
are hereinafter defined), as the case may be, will have, valid
marketable title to the Shares proposed to be sold by such
Selling Stockholder hereunder on such date and full right,
power and authority to enter into this Agreement and the
Pricing Agreement and to sell, assign, transfer and deliver
such Shares hereunder, free and clear of all voting trust
arrangements, stockholder agreements, liens, security
interests, encumbrances of any kind, equities, claims and, if
applicable, community property rights; and upon delivery by
such Selling Stockholder of and payment by the Underwriters
for such Shares hereunder, the Underwriters will acquire (x)
valid marketable title to such Shares (assuming the
Underwriters acquire their interests in such Shares in good
faith and without notice of any adverse claims) and (y) such
Shares free and clear of all voting trust arrangements,
stockholder agreements, liens, security interests,
encumbrances of any kind, equities, claims and, if applicable,
community property rights.
(ii) Such Selling Stockholder has not taken and
will not take, directly or indirectly, any action designed to
or which might be reasonably expected to cause or result,
under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(iii) Such Selling Stockholder has duly executed
and delivered a Power of
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Attorney ("Power of Attorney") among the Selling Stockholder
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇▇ (the "Agents"),
naming the Agents as such Selling Stockholder's
attorneys-in-fact (and, by the execution by any Agent of this
Agreement, such Agent hereby represents and warrants that he
has been duly appointed as attorney-in-fact by the Selling
Stockholders pursuant to the Power of Attorney) for the
purpose of entering into and carrying out this Agreement and
the Pricing Agreement, and the Power of Attorney has been duly
executed by such Selling Stockholder and a copy thereof has
been delivered to you.
(iv) Such Selling Stockholder has duly executed
and delivered a Custody Agreement ("Custody Agreement") with
the Company, as custodian ("Custodian"), and has deposited in
custody under the Custody Agreement certificates in negotiable
form for the Shares to be sold hereunder by such Selling
Stockholder, for the purpose of further delivery pursuant to
this Agreement. Such Selling Stockholder agrees that the
Shares to be sold by such Selling Stockholder on deposit with
the Custodian are subject to the interests of the Company, the
Underwriters and the other Selling Stockholders, that the
arrangements made for such custody, and the appointment of the
Agents pursuant to the Power of Attorney, are to that extent
irrevocable, and that the obligations of such Selling
Stockholder hereunder and under the Power of Attorney and the
Custody Agreement shall not be terminated (except as provided
in this Agreement, the Power of Attorney or the Custody
Agreement) by any act of such Selling Stockholder, by
operation of law, whether, in the case of an individual
Selling Stockholder, by the death or incapacity of such
Selling Stockholder or, in the case of a trust or estate, by
the death of the trustee or trustees or the executor or
executors or the termination of such trust or estate, or, in
the case of a partnership or corporation, by the dissolution,
winding-up or other event affecting the legal life of such
entity, or by the occurrence of any other event. If any
individual Selling Stockholder, trustee or executor should die
or become incapacitated, or any such trust, estate,
partnership or corporation should be terminated, or if any
other event should occur before the delivery of the Shares
hereunder, the documents evidencing Shares then on deposit
with the Custodian shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as
if such death, incapacity, termination or other event had not
occurred, regardless of whether or not the Custodian shall
have received notice thereof. Each Agent has been authorized
by such Selling Stockholder to execute and deliver this
Agreement and the Pricing Agreement and the Custodian has been
authorized to receive and acknowledge receipt of the proceeds
of sale of the Shares to be sold by such Selling Stockholder
against delivery thereof and otherwise act on behalf of such
Selling Stockholder. A copy of the Custody Agreement has been
delivered to you.
(v) The execution, delivery and performance by
or on behalf of such Selling Stockholder of this Agreement,
the Pricing Agreement, the Power of Attorney and the Custody
Agreement will not conflict with, constitute a breach of, or
default under, or violate any provision of any agreement,
franchise, license, indenture, mortgage, deed of trust, or
other instrument to which such Selling Stockholder is a
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party or by which such Selling Stockholder is or may be bound
or to which such Selling Stockholder's property or assets is
subject, or any statute, law, rule, regulation, ruling,
judgment, injunction, order or decree applicable to such
Selling Stockholder or to such Selling Stockholder's property
or assets. No consent, approval, authorization or other order
of, or filing or registration with, any court, regulatory
body, administrative agency or other governmental body is
required for the execution and delivery of this Agreement, the
Pricing Agreement, the Power of Attorney or the Custody
Agreement by or on behalf of such Selling Stockholder or the
consummation by or on behalf of such Selling Stockholder of
the transactions contemplated herein or therein, except for
compliance with the 1933 Act and blue sky laws applicable to
the public offering of the Shares by the several Underwriters
and clearance of such offering with the NASD. This Agreement
has been duly executed and delivered by or on behalf of such
Selling Stockholder.
(vi) Each preliminary prospectus, insofar as it
has related to such Selling Stockholder, as of its date, has
conformed in all material respects with the requirements of
the 1933 Act and, as of its date, did not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading; and
when the Registration Statement became or becomes effective,
and at all times subsequent thereto, up to the First Closing
Date or the Second Closing Date, as the case may be, (1) the
Registration Statement and the Prospectus, and any amendments
or supplements thereto, insofar as they relate to such Selling
Stockholder, contained or will contain all statements that are
required to be stated therein in accordance with the 1933 Act
and in all material respects conformed or will in all material
respects conform to the requirements of the 1933 Act and (2)
neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, as it relates to such Selling
Stockholder, included or will include any untrue statement of
a material fact or omitted or will omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided that
neither of clauses (1) or (2) shall have any effect if
information has been given by such Selling Stockholder to the
Company and the Representatives in writing which would
eliminate or remedy any such untrue statement or omission.
(b) For a period of 180 days after the date of this
Agreement, such Selling Stockholder agrees not to (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant for the sale of, or otherwise dispose of or transfer any shares
of Common Stock or any securities convertible into or exchangeable or
exercisable for Common Stock, or file any registration statement under
the 1933 Act with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of
ownership of the Common Stock, whether any such swap or transaction is
to be settled by delivery of Common Stock or other securities, in cash
or
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otherwise, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Company, L.L.C., except for the Shares to be sold pursuant to this
Agreement.
(c)(i) Each Management Selling Stockholder, severally and
not jointly, represents and warrants to, and agrees with, the several
Underwriters that the representations and warranties of the Company set
forth in Section 2 of this Agreement are true and correct.
(ii) Each Venture Capital Selling Stockholder has no
reason to believe that the representations and warranties of the
Company set forth in Section 2 of this Agreement are not true and
correct.
(d) In order to document the Underwriter's compliance
with the reporting and withholding provisions of the Internal Revenue
Code of 1986, as amended, with respect to the transactions herein
contemplated, each of the Selling Stockholders agrees to deliver to you
prior to or on the First Closing Date a properly completed and executed
United States Treasury Department Form W-8 or W-9 (or other applicable
form of statement specified by Treasury Department regulations in lieu
thereof).
SECTION 4. Representations and Warranties of the Underwriters.
The Representatives, on behalf of the several Underwriters, represent and
warrant to the Company and the Selling Stockholders that the information set
forth (a) on the cover page of the Prospectus with respect to price,
underwriting discount and terms of the offering and (b) in paragraphs 1, 2, 3,
4, 5, 9, 10, 12, 14 and 15 (except for the third sentence of such paragraph 15)
under "Underwriting" in the Prospectus was furnished to the Company by and on
behalf of the Underwriters for use in connection with the preparation of the
Registration Statement and is correct and complete in all material respects.
SECTION 5. Purchase, Sale and Delivery of Shares. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and the Venture Capital
Selling Stockholders, severally and not jointly, agree to sell to the
Underwriters named in Schedule A hereto, and the Underwriters agree, severally
and not jointly, to purchase from the Company and the Venture Capital Selling
Stockholders, respectively, _________ Firm Shares from the Company and the
respective number of Firm Shares set forth opposite the names of the Venture
Capital Selling Stockholders in Schedule B-1 hereto at the price per share set
forth in the Pricing Agreement. The obligation of each Underwriter to the
Company shall be to purchase from the Company that number of full shares which
(as nearly as practicable, as determined by you) bears to the number of Firm
Shares to be sold by the Company, the same proportion as the number of Shares
set forth opposite the name of such Underwriter in Schedule A hereto bears to
the total number of Firm Shares to be purchased by all Underwriters under this
Agreement. The obligation of each Underwriter to each Venture Capital Selling
Stockholder shall be to purchase from such Venture Capital Selling Stockholder
the number of full shares which (as nearly as practicable, as determined by you)
bears to that number of Firm Shares set forth opposite the name of such Venture
Capital Selling Stockholder in Schedule B-1 hereto, the same proportion as the
number of Shares set forth opposite the name of such Underwriter in Schedule A
hereto bears to the total number of Firm Shares to be purchased by all
Underwriters under this Agreement. The initial public offering price and the
purchase price shall be set forth in the Pricing Agreement.
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At 9:00 A.M., Chicago Time, on the fourth business day, if permitted
under Rule 15c6-1 under the Exchange Act (or the third business day if required
under Rule 15c6-1 under the Exchange Act or unless postponed in accordance with
the provisions of Section 12), following the date the Registration Statement
becomes effective (or, if the Company has elected to rely upon Rule 430A, the
fourth business day, if permitted under Rule 15c6-1 under the Exchange Act (or
the third business day if required under Rule 15c6-1 under the Exchange Act),
after execution of the Pricing Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Company, the Company and the Custodian will deliver to you at the offices of
counsel for the Company or through the facilities of The Depository Trust
Company for the accounts of the several Underwriters, certificates representing
the Firm Shares to be sold by them, respectively, against payment of the
purchase price therefor by delivery of federal or other immediately available
funds, by wire transfer or otherwise, to the Company and the Custodian. Such
time of delivery and payment is herein referred to as the "First Closing Date."
The certificates for the Firm Shares so to be delivered will be in such
denominations and registered in such names as you request by notice to the
Company and the Custodian prior to 10:00 A.M., Chicago Time, on the second
business day preceding the First Closing Date, and will be made available at the
Company's expense for checking and packaging by the Representatives at 10:00
A.M., Chicago Time, on the business day preceding the First Closing Date.
Payment for the Firm Shares so to be delivered shall be made at the time and in
the manner described above at the offices of counsel for the Company.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Selling Stockholders hereby grant an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of
_______ Option Shares, at the same purchase price per share to be paid for the
Firm Shares, for use solely in covering any over-allotments made by the
Underwriters in the sale and distribution of the Firm Shares. The option granted
hereunder may be exercised at any time (but not more than once) within 30 days
after the date of the initial public offering upon notice by you to the Company
and the Agents setting forth the aggregate number of Option Shares as to which
the Underwriters are exercising the option, the names and denominations in which
the certificates for such shares are to be registered and the time and place at
which such certificates will be delivered. Such time of delivery (which may not
be earlier than the First Closing Date), being herein referred to as the "Second
Closing Date," shall be determined by you, but if at any time other than the
First Closing Date, shall not be earlier than three nor later than 10 full
business days after delivery of such notice of exercise. The number of Option
Shares to be purchased from each Selling Stockholder shall be the number of
shares set forth opposite the name of such Selling Stockholder under "Number of
Option Shares to be Sold" in Schedules B-1 and B-2 hereto. If less than all
Option Shares are to be purchased, the number of Option Shares to be purchased
from the Selling Stockholders shall be reduced pro rata. The number of Option
Shares to be purchased by each Underwriter shall be determined by multiplying
the number of Option Shares to be sold by the Selling Stockholders pursuant to
such notice of exercise by a fraction, the numerator of which is the number of
Firm Shares to be purchased by such Underwriter as set forth opposite its name
in Schedule A and the denominator of which is the total number of Firm Shares
(subject to such adjustments to eliminate any fractional share purchases as you
in your absolute discretion may make). Certificates for the Option Shares will
be made available at the Company's expense for checking and packaging at 10:00
A.M., Chicago Time, on the business
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day preceding the Second Closing Date. The manner of payment for and delivery of
the Option Shares shall be the same as for the Firm Shares as specified in the
preceding paragraph.
You have advised the Company and the Selling Stockholders that each
Underwriter has authorized you to accept delivery of its Shares, to make payment
and to receipt therefor. You, individually and not as the Representatives of the
Underwriters, may make payment for any Shares to be purchased by any Underwriter
whose funds shall not have been received by you by the First Closing Date or the
Second Closing Date, as the case may be, for the account of such Underwriter,
but any such payment shall not relieve such Underwriter from any obligation
hereunder.
The Company hereby confirms its engagement of U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ Inc. as, and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. hereby confirms its
agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of Rule 2720 of the Conduct Rules of the NASD
with respect to the offering and sale of the Shares. U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc., solely in its capacity as qualified independent underwriter and not
otherwise, is referred to herein as the "Independent Underwriter."
All references to the Independent Underwriter in the Registration
Statement or the Prospectus or in any other filing, report, document, release or
other communication prepared, issued or transmitted in conjunction with the
offering of Shares by the Company or the Underwriters shall be subject to its
prior consent with respect to form and substance, which consent shall not be
unreasonably withheld. Each of the Company and the Underwriters will cause any
corporation controlling, controlled by or under common control with it, and any
representative or agent of the Company or the Underwriters, as the case may be,
or of any such corporation, who or which prepares, issues or transmits any
filing, report, document, release or other communication in connection with the
offering which refers to the Independent Underwriter, to obtain its prior
consent with respect to the form and substance thereof, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, counsel to the Company
or the Underwriters may, without the Independent Underwriter's prior consent,
refer to it in any correspondence with the NASD or the Commission which relates
to the transactions contemplated by this Agreement.
SECTION 6. Covenants of the Company. The Company covenants and
agrees that:
(a) The Company will advise you and the Selling
Stockholders promptly of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of
the institution of any proceedings for that purpose, or of any
notification of the suspension of qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceedings
for that purpose, and will also advise you and the Selling Stockholders
promptly of any request of the Commission for any amendment to or
supplement of the Registration Statement, any preliminary prospectus or
the Prospectus, or for additional information.
(b) The Company will give you and the Selling
Stockholders notice of its intention to file or prepare any amendment
to the Registration Statement (including any post-effective
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amendment) or any Rule 462(b) Registration Statement or any amendment
or supplement to the Prospectus (including any revised prospectus which
the Company proposes for use by the Underwriters in connection with the
offering of the Shares which differs from the prospectus on file at the
Commission at the time the Registration Statement became or becomes
effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) and any term sheet as contemplated by
Rule 434) and will furnish you and the Selling Stockholders with copies
of any such amendment or supplement a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file
any such amendment or supplement or use any such prospectus to which
you or counsel for the Underwriters shall reasonably object.
(c) If the Company elects to rely on Rule 434 of the 1933
Act, the Company will prepare a term sheet that complies with the
requirements of Rule 434. If the Company elects not to rely on Rule
434, the Company will provide the Underwriters with copies of the form
of prospectus, in such numbers as the Underwriters may reasonably
request, and file with the Commission such prospectus in accordance
with Rule 424(b) of the 1933 Act by the close of business in New York
City on the second business day immediately succeeding the date of the
Pricing Agreement. If the Company elects to rely on Rule 434, the
Company will provide the Underwriters with copies of the form of Rule
434 Prospectus, in such numbers as the Underwriters may reasonably
request, by the close of business in New York on the business day
immediately succeeding the date of the Pricing Agreement.
(d) If at any time when a prospectus relating to the
Shares is required to be delivered under the 1933 Act any event occurs
as a result of which the Prospectus, including any amendments or
supplements, would include an untrue statement of a material fact, or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus, including any amendments
or supplements thereto and including any revised prospectus which the
Company proposes for use by the Underwriters in connection with the
offering of the Shares which differs from the prospectus on file with
the Commission at the time of effectiveness of the Registration
Statement, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) to comply with the 1933 Act, the Company
promptly will advise you thereof and will promptly prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance; and, in case any Underwriter is required to deliver a
prospectus nine months or more after the effective date of the
Registration Statement, the Company upon request, but at the expense of
such Underwriter, will prepare promptly such prospectus or prospectuses
as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the 1933 Act.
(e) Neither the Company nor any of its subsidiaries will,
prior to the earlier of the Second Closing Date or termination or
expiration of the related option, incur any liability or obligation,
direct or contingent, or enter into any material transaction, other
than in the ordinary course of business, except as contemplated by the
Prospectus.
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(f) Neither the Company nor any of its subsidiaries will
acquire any capital stock of the Company prior to the earlier of the
Second Closing Date or termination or expiration of the related option
nor will the Company declare or pay any dividend or make any other
distribution upon the Common Stock payable to stockholders of record on
a date prior to the earlier of the Second Closing Date or termination
or expiration of the related option, except in either case as
contemplated by the Prospectus.
(g) Not later than the 45th day following the end of the
fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement, the Company will make
generally available to its security holders an earnings statement
(which need not be audited) covering a period of at least 12 months
beginning after the effective date of the Registration Statement, which
will satisfy the provisions of the last paragraph of Section 11(a) of
the 1933 Act.
(h) During such period as a prospectus is required by law
to be delivered in connection with offers and sales of the Shares by an
Underwriter or dealer, the Company will furnish to you at its expense,
subject to the provisions of subsection (d) hereof, copies of the
Registration Statement, the Prospectus, each preliminary prospectus and
all amendments and supplements to any such documents in each case as
soon as available and in such quantities as you may reasonably request,
for the purposes contemplated by the 1933 Act.
(i) The Company will cooperate with the Underwriters in
qualifying or registering the Shares for sale under the blue sky laws
of such jurisdictions as you designate, and will continue such
qualifications in effect so long as reasonably required for the
distribution of the Shares. The Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any such jurisdiction where it is not currently
qualified or where it would be subject to taxation as a foreign
corporation.
(j) During the period of five years hereafter, the
Company will furnish you and each of the other Underwriters with a copy
(i) as soon as practicable after the filing thereof, of each report
filed by the Company with the Commission, any securities exchange or
the NASD; (ii) as soon as practicable after the release thereof, of
each material press release in respect of the Company; and (iii) as
soon as available, of each report of the Company mailed to
stockholders.
(k) The Company will use the net proceeds received by it
from the sale of the Shares being sold by it in the manner specified in
the Prospectus.
(l) If, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in
reliance upon Rule 430A and/or Rule 434, then immediately following the
execution of the Pricing Agreement, the Company will prepare, and file
or transmit for filing with the Commission in accordance with such Rule
430A, Rule 424(b) and/or Rule 434, copies of an amended Prospectus, or,
if required by such Rule 430A and/or Rule 434, a post-effective
amendment to the Registration Statement (including an
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amended Prospectus), containing all information so omitted. If
required, the Company will prepare and file, or transmit for filing, a
Rule 462(b) Registration Statement not later than the date of the
execution of the Pricing Agreement. If a Rule 462(b) Registration
Statement is filed, the Company shall make payment of, or arrange for
payment of, the additional registration fee owing to the Commission
required by Rule 111.
(m) The Company will ensure that the Reserved Shares will
be restricted as required by the NASD rules from sale, transfer,
assignment, pledge or hypothecation for a period of three months
following the date of this Agreement. The Underwriters will notify the
Company as to which persons will need to be so restricted. At the
request of the Underwriters, the Company will direct the transfer agent
to place a stop transfer restriction upon such shares for such period
of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Shares, the Company agrees to
reimburse the Underwriters for any reasonable expenses (including,
without limitation, legal expenses) they incur in connection with such
release.
(n) Prior to the First Closing Date, the Company will (i)
reclassify its Class P Common Stock as described in the Prospectus and
(ii) terminate the Stockholders Agreement dated as of September 8, 1993
by and between the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Venture Partners III Limited
Partnership, Information Partners Capital Fund, L.P., Silicon Valley
Bank and certain other persons listed on Schedule A thereto.
SECTION 7. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, the Company agrees to pay (i) all costs,
fees and expenses (other than legal fees and disbursements of counsel for the
Underwriters and the expenses incurred by the Underwriters) incurred in
connection with the performance of the Company's obligations hereunder,
including without limiting the generality of the foregoing, all fees and
expenses of legal counsel for the Company and of the Company's independent
accountants, all costs and expenses incurred in connection with the preparation,
printing, filing and distribution of the Registration Statement, each
preliminary prospectus and the Prospectus (including all exhibits and financial
statements) and all amendments and supplements provided for herein, this
Agreement, the Pricing Agreement and the Blue Sky Memorandum and all fees and
expenses incurred in connection with the listing of the Shares on the Nasdaq
National Market; (ii) all costs, fees and expenses (including legal fees not to
exceed $10,000 and disbursements of counsel for the Underwriters) incurred by
the Underwriters in connection with qualifying or registering all or any part of
the Shares for offer and sale under blue sky laws, including the preparation of
a blue sky memorandum relating to the Shares and clearance of such offering with
the NASD, and in connection with matters related to the Independent Underwriter;
and (iii) all fees and expenses of the Company's transfer agent, printing of the
certificates for the Shares and all transfer taxes, if any, with respect to the
sale and delivery of the Shares to the several Underwriters.
The provisions of this Section shall not affect any agreement which the
Company and the Selling Stockholders may make for the allocation or sharing of
such expenses and costs.
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SECTION 8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the First Closing Date and the Option Shares on the Second Closing Date shall
be subject to the accuracy of the representations and warranties on the part of
the Company and the Selling Stockholders herein set forth as of the date hereof
and as of the First Closing Date or the Second Closing Date, as the case may be,
to the accuracy of the statements of officers of the Company made pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement shall have become
effective either prior to the execution of this Agreement or not later
than 1:00 P.M., Chicago Time, on the first full business day after the
date of this Agreement, or such later time as shall have been consented
to by you but in no event later than 1:00 P.M., Chicago Time, on the
third full business day following the date hereof; and prior to the
First Closing Date or the Second Closing Date, as the case may be, no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or shall be pending or, to the knowledge of the
Company, the Selling Stockholders or you, shall be contemplated by the
Commission. If the Company has elected to rely upon Rule 430A and/or
Rule 434, the information concerning the initial public offering price
of the Shares and price-related information shall have been transmitted
to the Commission for filing pursuant to Rule 424(b) within the
prescribed period and the Company will provide evidence satisfactory to
the Representatives of such timely filing (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rules 430A and
424(b)). If a Rule 462(b) Registration Statement is required, such
Registration Statement shall have been transmitted to the Commission
for filing and become effective within the prescribed time period and,
prior to the First Closing Date, the Company shall have provided
evidence of such filing and effectiveness in accordance with Rule
462(b).
(b) The Shares shall have been qualified for sale under
the blue sky laws of such states as shall have been specified by the
Representatives.
(c) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Shares hereunder, the
validity and form of the certificates representing the Shares, the
execution and delivery of this Agreement and the Pricing Agreement, and
all corporate proceedings and other legal matters incident thereto, and
the form of the Registration Statement and the Prospectus (except
financial statements) shall have been approved by counsel for the
Underwriters exercising reasonable judgment.
(d) You shall not have advised the Company that the
Registration Statement or the Prospectus or any amendment or supplement
thereto, contains an untrue statement of fact, which, in the opinion of
counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to
be stated therein or necessary to make the statements therein not
misleading.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not
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have occurred any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the
Company or its subsidiaries, whether or not arising in the ordinary
course of business, which, in the judgment of the Representatives,
makes it impractical or inadvisable to proceed with the public offering
or purchase of the Shares as contemplated hereby.
(f) The NASD shall have confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(g) There shall have been furnished to you, as
Representatives of the Underwriters, on the First Closing Date or the
Second Closing Date, as the case may be, except as otherwise expressly
provided below:
(i) An opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
LLP, counsel for the Company, addressed to the Underwriters
and dated the First Closing Date or the Second Closing Date,
as the case may be, in the form attached hereto as Exhibit C.
(ii) An opinion of Arnheim Tite & ▇▇▇▇▇, counsel
for the Company, addressed to the Underwriters and dated the
First Closing Date or the Second Closing Date, as the case may
be, in the form attached hereto as Exhibit D.
(iii) An opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for
the Venture Capital Selling Stockholders, addressed to the
Underwriters and dated the First Closing Date or the Second
Closing Date, as the case may be, to the effect that:
(1) each of the Power of Attorney and
Custody Agreement has been duly authorized, executed
and delivered by or on behalf of each Venture Capital
Selling Stockholder and constitutes a legal, valid
and binding agreement of such Venture Capital Selling
Stockholder enforceable in accordance with its terms;
(2) each of this Agreement and the
Pricing Agreement has been duly authorized, executed
and delivered by or on behalf of each Venture Capital
Selling Stockholder; the Agents and the Custodian for
such Venture Capital Selling Stockholders have been
duly and validly authorized to carry out all
transactions contemplated herein on behalf of such
Venture Capital Selling Stockholders; and the
execution and performance of this Agreement and the
Pricing Agreement and the consummation by such
Venture Capital Selling Stockholders of the
transactions contemplated herein and therein will not
result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any
agreement, franchise, license, indenture, mortgage,
deed of trust, or other instrument known to such
counsel to which any such
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Venture Capital Selling Stockholder is a party or by
which any are bound or to which any of the property
of any such Venture Capital Selling Stockholder is
subject, or violate any statute, order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
any of such Venture Capital Selling Stockholders or
any of their properties; and no approval,
authorization or consent of any court or governmental
agency or body is required for the consummation of
the transactions contemplated by this Agreement and
the Pricing Agreement in connection with the sale of
Shares by such Venture Capital Selling Stockholders
pursuant to this Agreement, except such as have been
obtained under the 1933 Act and such as may be
required under blue sky laws applicable to the public
offering of the Shares by the several Underwriters
and the clearance of such offering with the NASD;
(3) each Venture Capital Selling
Stockholder has full right, power and authority to
enter into this Agreement and the Pricing Agreement
and to sell, transfer and deliver the Shares to be
sold on the First Closing Date or the Second Closing
Date, as the case may be, by such Venture Capital
Selling Stockholder hereunder and good and marketable
title to such Shares so sold, free and clear of all
voting trust arrangements, stockholder agreements,
liens, encumbrances, equities, claims and community
property rights whatsoever, has been transferred to
the Underwriters (who counsel may assume to be bona
fide purchasers) who have purchased such Shares
hereunder; and
(4) this Agreement and the Pricing
Agreement are legal, valid and binding agreements of
each Venture Capital Selling Stockholder except as
enforceability of the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights and by
the exercise of judicial discretion in accordance
with general principles applicable to equitable and
similar remedies and except with respect to those
provisions relating to indemnities for liabilities
arising under the 1933 Act, as to which no opinion
need be expressed.
In rendering such opinion, such counsel may
state that they are relying, as to factual matters, on
certificates of the Venture Capital Selling Stockholders, in
which case their opinion is to state that they are so doing
and copies of said certificates are to be attached to the
opinion unless said certificates (or the information therein)
have been furnished to the Representatives in other form.
(iv) An opinion of Bachner, Tally, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel for the Management Selling Stockholders,
addressed to the Underwriters and dated the First Closing Date
or the Second Closing Date, as the case may be, to the effect
that:
(1) each of the Power of Attorney and
Custody Agreement has
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been duly authorized, executed and delivered by or on
behalf of each Management Selling Stockholder and
constitutes a legal, valid and binding agreement of
such Management Selling Stockholder enforceable in
accordance with its terms;
(2) each of this Agreement and the
Pricing Agreement has been duly authorized, executed
and delivered by or on behalf of each Management
Selling Stockholder; the Agents and the Custodian for
such Management Selling Stockholders have been duly
and validly authorized to carry out all transactions
contemplated herein on behalf of such Management
Selling Stockholders; and the execution and
performance of this Agreement and the Pricing
Agreement and the consummation by such Management
Selling Stockholders of the transactions contemplated
herein and therein will not result in a breach or
violation of any of the terms and provisions of, or
constitute a default under, any agreement, franchise,
license, indenture, mortgage, deed of trust or other
instrument known to such counsel to which any such
Management Selling Stockholder is a party or by which
any are bound or to which any of the property of any
such Management Selling Stockholder is subject, or
violate any statute, order, rule or regulation known
to such counsel of any court or governmental agency
or body having jurisdiction over any of such
Management Selling Stockholders or any of their
properties; and no approval, authorization or consent
of any court or governmental agency or body is
required for the consummation of the transactions
contemplated by this Agreement and the Pricing
Agreement in connection with the sale of Shares by
such Management Selling Stockholders pursuant to this
Agreement, except such as have been obtained under
the 1933 Act and such as may be required under blue
sky laws applicable to the public offering of the
Shares by the several Underwriters and the clearance
of such offering with the NASD;
(3) each Management Selling Stockholder
has full right, power and authority to enter into
this Agreement and the Pricing Agreement and to sell,
transfer and deliver the Shares to be sold on the
First Closing Date or the Second Closing Date, as the
case may be, by such Management Selling Stockholder
hereunder and good and marketable title to such
Shares so sold, free and clear of all voting trust
arrangements, stockholder agreements, liens,
encumbrances, equities, claims and community property
rights whatsoever, has been transferred to the
Underwriters (who counsel may assume to be bona fide
purchasers) who have purchased such Shares hereunder;
and
(4) this Agreement and the Pricing
Agreement are legal, valid and binding agreements of
each Management Selling Stockholder except as
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enforceability of the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights and by
the exercise of judicial discretion in accordance
with general principles applicable to equitable and
similar remedies and except with respect to those
provisions relating to indemnities for liabilities
arising under the 1933 Act, as to which no opinion
need be expressed.
In rendering such opinion, such counsel may
state that they are relying, as to factual matters, on
certificates of the Management Selling Stockholders, in which
case their opinion is to state that they are so doing and
copies of said certificates are to be attached to the opinion
unless said certificates (or the information therein) have
been furnished to the Representatives in other form.
(v) Such opinion or opinions of Sidley & Austin,
counsel for the Underwriters, dated the First Closing Date or
the Second Closing Date, as the case may be, with respect to
the incorporation of the Company, the validity of the Shares
to be sold by the Company, the Registration Statement and the
Prospectus and other related matters as you may reasonably
require, and the Company shall have furnished to such counsel
such documents and shall have exhibited to them such papers
and records as they request for the purpose of enabling them
to pass upon such matters.
(vi) A certificate of the chief executive officer
and the principal financial officer of the Company, dated the
First Closing Date or the Second Closing Date, as the case may
be, to the effect that:
(1) the representations and warranties
of the Company set forth in Section 2 of this
Agreement are true and correct as of the date of this
Agreement and as of the First Closing Date or the
Second Closing Date, as the case may be, and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing
Date; and
(2) the Commission has not issued an
order preventing or suspending the use of the
Prospectus or any preliminary prospectus filed as a
part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness
of the Registration Statement has been issued; and to
the best knowledge of the respective signers, no
proceedings for that purpose have been instituted or
are pending or contemplated under the 1933 Act.
The delivery of the certificate provided for
in this subparagraph shall be and constitute a representation
and warranty of the Company as to the facts required in the
immediately foregoing clauses (1) and (2) of this subparagraph
to be set forth in said certificate.
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(vii) A certificate of each Selling Stockholder
dated the First Closing Date or the Second Closing Date, as
the case may be, to the effect that the representations and
warranties of such Selling Stockholder set forth in Section 3
of this Agreement are true and correct as of such date and the
Selling Stockholder has complied with all the agreements and
satisfied all the conditions on the part of such Selling
Stockholder to be performed or satisfied at or prior to such
date.
(viii) At the time the Pricing Agreement is
executed and also on the First Closing Date or the Second
Closing Date, as the case may be, there shall be delivered to
you a letter addressed to you, as Representatives of the
Underwriters, from PriceWaterhouseCoopers LLP, independent
accountants, the first one to be dated the date of the Pricing
Agreement, the second one to be dated the First Closing Date
and the third one (in the event of a second closing) to be
dated the Second Closing Date, in form and substance
satisfactory to counsel for the Underwriters. There shall not
have been any change or decrease specified in the letters
referred to in this subparagraph which makes it impractical or
inadvisable in the judgment of the Representatives to proceed
with the public offering or purchase of the Shares as
contemplated hereby.
(ix) A lock-up agreement substantially in the
form of Exhibit B signed by each of the persons listed on
Schedule C.
(x) Such further certificates and documents as
you may reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to Sidley & Austin, counsel for the Underwriters, which approval shall not be
unreasonably withheld. The Company shall furnish you with such manually signed
or conformed copies of such opinions, certificates, letters and documents as you
request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at the First Closing Date is not so satisfied, this
Agreement at your election will terminate upon notification to the Company and
the Selling Stockholders without liability on the part of any Underwriter or the
Company or any Selling Stockholder, except for the expenses to be paid or
reimbursed by the Company pursuant to Sections 7 and 9 hereof and except to the
extent provided in Section 11 hereof.
SECTION 9. Reimbursement of Underwriters' Expenses. If the sale
to the Underwriters of the Shares on the First Closing Date is not consummated
because any condition of the Underwriters' obligations hereunder is not
satisfied or because of any refusal, inability or failure on the part of the
Company or any Selling Stockholder to perform any agreement herein or to comply
with any provision hereof, unless such failure to satisfy such condition or to
comply with any provision hereof is due to the default or omission of any
Underwriter, the Company agrees to
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reimburse you and the other Underwriters upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been reasonably incurred by you and them in connection with the proposed
purchase and the sale of the Shares. Any such termination shall be without
liability of any party to any other party except that the provisions of this
Section, Section 7 and Section 11 shall at all times be effective and shall
apply.
SECTION 10. Effectiveness of Registration Statement. You, the
Company and the Selling Stockholders will use your, its and their best efforts
to cause the Registration Statement to become effective, if it has not yet
become effective, and to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
SECTION 11. Indemnification. (a) The Company and each Management
Selling Stockholder, jointly and severally, agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of the 1933 Act or the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the 1933 Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise
(including in settlement of any litigation if such settlement is effected with
the written consent of the Company and/or such Management Selling Stockholders,
as the case may be), insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A and/or Rule 434, if
applicable, any preliminary prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that neither the Company nor any
Management Selling Stockholder will be liable in any such case to the extent
that (i) any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives, specifically for use therein; or
(ii) if such statement or omission was contained or made in any preliminary
prospectus and corrected in the Prospectus and (1) any such loss, claim, damage
or liability suffered or incurred by any Underwriter (or any person who controls
any Underwriter) resulted from an action, claim or suit by any person who
purchased Shares which are the subject thereof from such Underwriter in the
offering and (2) such Underwriter failed to deliver or provide a copy of the
Prospectus to such person at or prior to the confirmation of the sale of such
Shares in any case where such delivery is required by the 1933 Act. In addition
to their other obligations under this Section 11(a), the Company and the
Management Selling Stockholders agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 11(a), they will reimburse
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the Underwriters on a monthly basis for all reasonable legal and other expenses
incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company's
and the Management Selling Stockholders' obligation to reimburse the
Underwriters for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. This
indemnity agreement will be in addition to any liability which the Company and
the Management Selling Stockholders may otherwise have.
In addition to and without limitation of the Company's obligation to
indemnify U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. as an Underwriter, the Company also
agrees to indemnify and hold harmless the Independent Underwriter and each
person, if any, who controls the Independent Underwriter within the meaning of
the 1933 Act or the Exchange Act, from and against any losses, claims, damages
or liabilities, joint or several, to which the Independent Underwriter or such
controlling person may become subject as a result of the Independent
Underwriter's participation as a "qualified independent underwriter" within the
meaning of Rule 2720 of the Conduct Rules of the NASD in connection with the
offering of the Shares.
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an Underwriter
or who controls any Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the Exchange Act and who, at the date of this Agreement, is a
director or officer of the Company or controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the Exchange Act, such indemnity
agreement is subject to the undertaking of the Company in the Registration
Statement under Item 17 thereof.
Without limiting the full extent of the Company's agreement to
indemnify each Underwriter and the Independent Underwriter, as herein provided,
each Management Selling Stockholder shall be liable under the indemnity
agreements contained in paragraph (a) of this Section only for an amount not
exceeding the proceeds (after deduction of the underwriting discount) received
by such Management Selling Stockholder from the sale of Shares hereunder (i.e.
if the over-allotment is not exercised, the Management Selling Stockholders
shall have no indemnification obligations under this Section 11(a)).
(b) Each of the Venture Capital Selling Stockholders agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the 1933 Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such controlling person may become subject under the 1933
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise (including in settlement of litigation if such
settlement is effected with the written consent of the Company and/or such
Venture Capital Selling Stockholder), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A and/or
Rule 434, if applicable, any preliminary prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission
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to state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission specifically relates to such Venture Capital
Selling Stockholder, and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that such Venture Capital Selling Stockholder shall
be not liable in any such case to the extent that (i) any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any preliminary prospectus, the Prospectus or any such
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Company, L.L.C. expressly for use therein; or (ii) if such statement or omission
was contained or made in any preliminary prospectus and corrected in the
Prospectus and (1) any such loss, claim, damage or liability suffered or
incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Shares which
are the subject thereof from such Underwriter in the offering and (2) such
Underwriter failed to deliver or provide a copy of the Prospectus to such person
at or prior to the confirmation of the sale of such Shares in any case where
such delivery is required by the 1933 Act. In addition to their other
obligations under this Section 11(b), the Venture Capital Selling Stockholders
agree that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in this
Section 11(b), they will reimburse the Underwriters on a monthly basis for all
reasonable legal and other expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Venture Capital Selling Stockholders' obligation to
reimburse the Underwriters for such expenses and the possibility that such
payments might later be held to have been improper by a court of competent
jurisdiction. This indemnity agreement will be in addition to any liability
which the Venture Capital Selling Stockholders may otherwise have.
Notwithstanding anything in this Section 11(b) to the
contrary, each Venture Capital Selling Stockholder shall be liable under the
indemnity agreements contained in paragraph (b) of this Section only for an
amount not exceeding the proceeds (after deduction of the underwriting discount)
received by such Venture Capital Selling Stockholder from the sale of Shares
hereunder.
(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each Selling Stockholder and
each person, if any, who controls the Company within the meaning of the 1933 Act
or the Exchange Act, against any losses, claims, damages or liabilities to which
the Company, or any such director, officer, Selling Stockholder or controlling
person may become subject under the 1933 Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement, any preliminary prospectus, the
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Prospectus, or any amendment or supplement thereto (including any prospectus
wrapper), or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, any
preliminary prospectus, the Prospectus, or any amendment or supplement thereto
in reliance upon and in conformity with Section 4 of this Agreement or any other
written information furnished to the Company by such Underwriter through the
Representatives specifically for use in the preparation thereof; and will
reimburse any legal or other expenses reasonably incurred by the Company, or any
such director, officer, Selling Stockholder or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action. In addition to their other obligations under this Section 11(c), the
Underwriters agree that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
this Section 11(c), they will reimburse the Company and the Selling Stockholders
on a monthly basis for all reasonable legal and other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the
Underwriters' obligation to reimburse the Company and the Selling Stockholders
for such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party except to the extent
that the indemnifying party was prejudiced by such failure to notify. In case
any such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or the indemnified and indemnifying parties may have
conflicting interests which would make it inappropriate for the same counsel to
represent both of them, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defense and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defense in accordance with the proviso
to the next preceding sentence (it being
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understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel),
approved by the Representatives in the case of paragraph (a)(i) or (b)(i)
representing all indemnified parties not having different or additional defenses
or potential conflicting interest among themselves who are parties to such
action; provided, that, if indemnity is sought as a result of the Independent
Underwriter's participation as a "qualified independent underwriter" within the
meaning of Rule 2720 of the Conduct Rules of the NASD in connection with the
offering, then, in addition to the expenses of such counsel for the indemnified
parties, the indemnifying party shall be liable for the expenses of not more
than one counsel (in addition to any local counsel) separate from its own
counsel and that of the other indemnified parties for the Independent
Underwriter in its capacity as such), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party. 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
arising out of such proceeding.
(e) If the indemnification provided for in this Section is
unavailable to an indemnified party under paragraphs (a), (b) or (c) hereof in
respect of any losses, claims, damages or liabilities 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, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Selling Stockholders and the Underwriters 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, the Selling Stockholders and the Underwriters in connection with
the statements or omissions, or in connection with any violation of applicable
laws or regulations of foreign jurisdictions where Reserved Shares have been
offered, which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The respective relative benefits
received by the Company, the Selling Stockholders and the Underwriters shall be
deemed to be in the same proportion in the case of the Company and the Selling
Stockholders, as the total price paid to the Company and the Selling
Stockholders for the Shares by the Underwriters (net of underwriting discount
but before deducting expenses), and in the case of the Underwriters as the
underwriting discount received by them bears to the total of such amounts paid
to the Company and the Selling Stockholders and received by the Underwriters as
underwriting discount in each case as contemplated by the Prospectus. The
relative fault of the Company and the Selling Stockholders and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the Company or by the Selling
Stockholders or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or any violation of the nature referred to above. The amount paid or
payable by a party as a result of the losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
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The Company and the Underwriters agree that U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc. will not receive any additional benefits hereunder for serving as the
Independent Underwriter in connection with the offering and sale of Shares.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the first
paragraph of this subsection (e). Notwithstanding the provisions of this
Section, 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 it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) 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 are several in proportion to their
respective underwriting commitments and not joint. In no event shall the
liability of a Selling Stockholder under this Section 11(e) exceed the amount
that such Selling Stockholder would have been required to pay under Section
11(a) (with respect to a Management Selling Stockholder) or Section 11(b) (with
respect to a Venture Capital Selling Stockholder) had such indemnification held
to be available thereunder.
(f) In connection with the offer and sale of the Reserved Shares,
the Company agrees, promptly upon a request in writing, to indemnify and hold
harmless the Underwriters from and against any and all losses, liabilities,
claims, damages and expenses incurred by them as a result of the failure of
recipients of Reserved Shares to pay for and accept delivery thereof which, by
the end of the first business day following the date of this Agreement, were
subject to a properly confirmed agreement to purchase.
(g) The provisions of this Section shall survive any termination
of this Agreement.
Section 12. Default of Underwriters. It shall be a condition to
the agreement and obligation of the Company and the Selling Stockholders to sell
and deliver the Shares hereunder, and of each Underwriter to purchase the Shares
hereunder, that, except as hereinafter in this paragraph provided, each of the
Underwriters shall purchase and pay for all Shares agreed to be purchased by
such Underwriter hereunder upon tender to the Representatives of all such Shares
in accordance with the terms hereof. If any Underwriter or Underwriters default
in their obligations to purchase Shares hereunder on the First Closing Date and
the aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10 percent of the total number of
Shares which the Underwriters are obligated to purchase on the First Closing
Date, the Representatives may make arrangements satisfactory to the Company and
the Selling Stockholders for the purchase of such Shares by other persons,
including any of the Underwriters, but if no such arrangements are made by such
date the nondefaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Shares which such
defaulting Underwriters agreed but failed to purchase on such date. If any
Underwriter or Underwriters so
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default and the aggregate number of Shares with respect to which such default or
defaults occur is more than the above percentage and arrangements satisfactory
to the Representatives and the Company and the Selling Stockholders for the
purchase of such Shares by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
nondefaulting Underwriter or the Company or the Selling Stockholders, except for
the expenses to be paid by the Company pursuant to Section 7 hereof and except
to the extent provided in Section 11 hereof.
In the event that Shares to which a default relates are to be purchased
by the nondefaulting Underwriters or by another party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
SECTION 13. Effective Date. This Agreement shall become effective
immediately as to Sections 7, 9, 11 and 14 hereof and as to all other provisions
at 10:00 A.M., Chicago Time, on the day following the date upon which the
Pricing Agreement is executed and delivered, unless such a day is a Saturday,
Sunday or holiday (and in that event this Agreement shall become effective at
such hour on the business day next succeeding such Saturday, Sunday or holiday);
but this Agreement shall nevertheless become effective at such earlier time
after the Pricing Agreement is executed and delivered as you may determine on
and by notice to the Company and the Selling Stockholders or by release of any
Shares for sale to the public. For the purposes of this Section, the Shares
shall be deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
telegrams (i) advising Underwriters that the Shares are released for public
offering, or (ii) offering the Shares for sale to securities dealers, whichever
may occur first.
SECTION 14. Termination. Without limiting the right to terminate
this Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by
notice to you and the Selling Stockholders or by you by notice to the
Company and the Selling Stockholders at any time prior to the time this
Agreement shall become effective as to all its provisions, and any such
termination shall be without liability on the part of the Company or
the Selling Stockholders to any Underwriter (except for the expenses to
be paid or reimbursed pursuant to Section 7 hereof and except to the
extent provided in Section 11 hereof) or of any Underwriter to the
Company or the Selling Stockholders.
(b) This Agreement may also be terminated by you prior to
the First Closing Date, and the option referred to in Section 5, if
exercised, may be canceled at any time prior to the Second Closing
Date, if (i) trading in securities on the Nasdaq National Market or the
New York Stock Exchange shall have been suspended or minimum prices
shall have been established on such exchange, or (ii) a banking
moratorium shall have been declared by
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Illinois, New York, or United States authorities, or (iii) there shall
have been any change in financial markets or in political, economic or
financial conditions which, in the opinion of the Representatives,
either renders it impracticable or inadvisable to proceed with the
offering and sale of the Shares on the terms set forth in the
Prospectus or materially and adversely affects the market for the
Shares, or (iv) there shall have been an outbreak of major armed
hostilities between the United States and any foreign power which in
the opinion of the Representatives makes it impractical or inadvisable
to offer or sell the Shares. Any termination pursuant to this paragraph
(b) shall be without liability on the part of any Underwriter to the
Company or the Selling Stockholders or on the part of the Company to
any Underwriter or the Selling Stockholders (except for expenses to be
paid or reimbursed pursuant to Section 7 hereof and except to the
extent provided in Section 11 hereof).
SECTION 15. Representations and Indemnities to Survive Delivery.
The respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholders and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
principals, members, officers or directors or any controlling person, or the
Selling Stockholders as the case may be, and will survive delivery of and
payment for the Shares sold hereunder.
SECTION 16. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters will be mailed, delivered or telecopied
and confirmed to you c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Sidley & Austin, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy (▇▇▇) ▇▇▇-▇▇▇▇; if sent
to the Company will be mailed, delivered or telecopied and confirmed to the
Company at its corporate headquarters with a copy to ▇▇▇▇▇▇▇▇ ▇. Wittenberg,
Testa, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
telecopy (▇▇▇) ▇▇▇-▇▇▇▇; if sent to the Management Selling Stockholders will be
mailed, delivered or telecopied and confirmed to the Agents and the Custodian at
such address as they have previously furnished to the Company and the
Representatives, with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇, Bachner, Tally, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, telecopy (▇▇▇) ▇▇▇-▇▇▇▇;
and if sent to the Venture Capital Selling Stockholders will be mailed,
delivered or telecopied and confirmed to the Agents and the Custodian at such
address as they have previously furnished to the Company and the
Representatives, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy (▇▇▇) ▇▇▇-▇▇▇▇.
SECTION 17. Successors. This Agreement and the Pricing Agreement
will inure to the benefit of and be binding upon the parties hereto and their
respective successors, personal representatives and assigns, and to the benefit
of the officers and directors and controlling persons referred to in Section 11,
and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares as such from any of
the Underwriters merely by reason of such purchase.
SECTION 18. Representation of Underwriters. You will act as
Representatives for the
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several Underwriters in connection with this financing, and any action under or
in respect of this Agreement taken by you will be binding upon all the
Underwriters.
SECTION 19. Partial Unenforceability. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
SECTION 20. Applicable Law. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholders and the several Underwriters including you, all in accordance with
its terms.
Very truly yours,
ONESOURCE INFORMATION SERVICES, INC.
By__________________________________________
Chief Executive Officer
The Selling Stockholders named in Schedule B
hereto, in their individual capacities
By__________________________________________
Agent and Attorney-in-Fact
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The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, INC.
Acting as Representatives of the
several Underwriters named in
Schedule A.
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
By__________________________________
Principal
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SCHEDULE A
Number of
Firm Shares
Underwriter to be Purchased
----------- ---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
TOTAL
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SCHEDULE B-1
Number of Number of
Firm Shares Option Shares
to be Sold to be Sold
----------- -------------
Venture Capital Selling Stockholders:
Information Partners Capital Fund, L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Venture Partners III
Limited Partnership
-------------
TOTAL
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SCHEDULE B-2
Number of
Option Shares
to be Sold
-------------
Management Selling Stockholders:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------
TOTAL
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SCHEDULE C
[persons who have signed lock-up agreements]
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ (on behalf of BCIP Trust Associates, BCIP Associates and
Information Partners)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇
Lotus Development Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ Van Dine
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Exhibit A
ONESOURCE INFORMATION SERVICES, INC.
______ Shares Common Stock(2)
PRICING AGREEMENT
___________, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
As Representatives of the Several
Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated
_________________, 1999 (the "Underwriting Agreement") relating to the sale by
the Company and the Selling Stockholders and the purchase by the several
Underwriters for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C., U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. are acting as representatives (the
"Representatives"), of the above Shares. All terms herein shall have the
definitions contained in the Underwriting Agreement except as otherwise defined
herein.
Pursuant to Section 5 of the Underwriting Agreement, the Company and
each of the Selling Stockholders agree with the Representatives as follows:
1. The initial public offering price per share for the Shares shall be
$__________.
2. The purchase price per share for the Shares to be paid by the
several Underwriters shall be $_____________, being an amount equal to the
initial public offering price set forth above less $____________ per share.
----------------------
(2)Plus an option to acquire up to ___ additional shares to cover
over-allotments
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholders and the several Underwriters, including you, all in accordance with
its terms.
Very truly yours,
ONESOURCE INFORMATION SERVICES, INC.
By_______________________________________
Chief Executive Officer
The Selling Stockholders named in
Schedule B to the Underwriting Agreement,
in their individual capacities
By_______________________________________
Agent and Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, INC.
Acting as Representatives of the
several Underwriters
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
By___________________________________
Principal
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Exhibit B
ONESOURCE INFORMATION SERVICES, INC.
LOCK-UP AGREEMENT
___________, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
As Representatives of the Several
Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Proposed Public Offering by OneSource Information Services, Inc.
----------------------------------------------------------------
Ladies and Gentlemen:
The undersigned, a securityholder [and an officer and/or director] of
OneSource Information Services, Inc. a Delaware corporation (the "Company"),
understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. propose to enter into an
Underwriting Agreement (the "Underwriting Agreement") with the Company and
certain stockholders of the Company providing for the public offering of shares
(the "Securities") of the Company's common stock, par value $.01 per share (the
"Common Stock"). In recognition of the benefit that such an offering will confer
upon the undersigned as a securityholder [and an officer and/or director] of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Underwriting Agreement that, during a period of
180 days from the date of the Underwriting Agreement (the "Lock-Up Period"), the
undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition (the "Lock-Up Shares"), or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Notwithstanding the foregoing, the undersigned may transfer any or all
of the Lock-Up
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Shares (i) as a bona fide gift or gifts or (ii) as a distribution to limited
partners or shareholders of such person; provided, however, that in any such
case it shall be a condition to the transfer that the transferee execute an
agreement stating that the transferee is receiving and holding the LockUp Shares
subject to the provisions of this letter agreement. The transferor shall notify
▇▇▇▇▇▇▇ ▇▇▇▇▇ in writing prior to the transfer and there shall be no further
transfer of such Lock-Up Shares except in accordance with this letter agreement.
Following expiration of the Lock-Up Period, it is understood that the
undersigned may dispose of Lock-Up Shares free of any contractual obligation
hereunder.
It is understood that, if the Underwriting Agreement is not executed by
June 30, 1999 or if the Underwriting Agreement shall terminate or be terminated
prior to payment for and delivery of the Securities, you will release the
undersigned from the obligations under this letter agreement.
Very truly yours,
Signature:
Print Name:
▇▇
▇▇
▇▇▇▇▇▇▇ ▇
[▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇]
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Exhibit D
[Opinion of Arnheim Tite & ▇▇▇▇▇]
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