EXHIBIT 1.1
3,350,000 SHARES
SYBARI SOFTWARE, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_______________, 2005
XX XXXXX & CO., LLC
Wachovia Capital markets, LLC
Xxxxxxx Xxxxx & Associates, Inc.
As Representatives of the several Underwriters
c/o XX Xxxxx & Co., LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTORY. Sybari Software, Inc., a Delaware corporation (the "Company"),
proposes to sell, pursuant to the terms of this Agreement, to the several
underwriters named in Schedule A hereto (the "Underwriters", or, each, an
"Underwriter"), an aggregate of 3,350,000 shares of the Common Stock, par value
$0.01 per share (the "Common Stock"), of the Company. The aggregate of 3,350,000
shares so proposed to be sold is hereinafter referred to as the "Firm Stock".
The Selling Shareholder listed in Schedule B hereto also proposes to sell to the
Underwriters, upon the terms and conditions set forth in Section 3 hereof, up to
an additional 502,500 shares of Common Stock (the "Optional Stock"). The Firm
Stock and the Optional Stock are hereinafter collectively referred to as the
"Stock". XX Xxxxx & Co., LLC ("XX Xxxxx"), Wachovia Capital Markets, LLC and
Xxxxxxx Xxxxx & Associates, Inc. are acting as representatives of the several
Underwriters and in such capacity are hereinafter referred to as the
"Representatives".
2. (I) 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. 333-115522) (the
"Initial Registration Statement") in respect of the Stock has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations (the "Rules and Regulations") of the
Commission thereunder, which became effective upon filing, no other
document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order suspending
the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule
424(a) of the Rules and Regulations is hereinafter called a
"Preliminary Prospectus"); the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act and deemed by virtue
of Rule 430A under the Securities Act to be part of the Initial
Registration Statement at the time it was declared effective, each as
amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under
the Securities Act, is hereinafter called the "Prospectus". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Securities Act. No order preventing or suspending the use of
any Preliminary Prospectus has been issued by the Commission.
(b) The Initial Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any amendments or
supplements to either Registration Statement or to the Prospectus, when
they become effective or are filed with the Commission, as the case may
be, will conform) in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not,
as of the applicable effective date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date (as to
the Prospectus and any amendment or supplement thereto) contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing
representations and warranties shall not apply to information contained
in or omitted from the Registration Statement or the Prospectus or any
such amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information the parties hereto agree is
limited to the Underwriters' Information (as defined in Section 16).
(c) The Company and each of its subsidiaries (as defined in Section 14)
have been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power
and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the
failure to so qualify or have such power or authority would not have,
singularly or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"). The Company owns or controls, directly or
indirectly, only the following corporations, partnerships, limited
liability partnerships, limited liability companies, associations or
other entities: Sybari Antigen Software, SL, Sybari Germany Software
GmbH, Sybari Software Australia Pty Ltd., Sybari Software do Brazil
Ltda., Sybari Software Ltd., Sybari Software S.A.S., Sybari Software
S.r.l., Sybari Software Singapore PTE LTD, Sybari Software, B.V. and
Sybari Software, S.A. Other than Sybari Software, B.V., each of the
Company's subsidiaries is not a "significant subsidiary" as defined in
Rule 1-02(w) of Regulation S-X.
(d) This Agreement has been duly authorized, executed and delivered by
the Company.
(e) The Stock to be issued and sold by the Company to the Underwriters
hereunder has been duly and validly authorized and, when issued and
delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and nonassessable
and free of any preemptive or similar rights and will conform to the
description thereof contained in the Prospectus.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued and outstanding shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and nonassessable, have been issued in compliance with
federal and state securities laws, and conform to the description
thereof contained in the Prospectus. None of the outstanding shares of
Common Stock was issued in violation of any preemptive rights, rights
of first refusal or other similar rights to subscribe for or purchase
securities of the Company. There are no authorized or outstanding
options, warrants, preemptive rights, rights of first refusal or other
rights to purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company or
any of its subsidiaries other than those accurately described in the
Prospectus. The description of the Company's stock option and other
stock plans or arrangements, and the options or other rights granted
thereunder, as described in the Prospectus accurately present the
information required to be shown with respect to such plans,
arrangements, options and rights.
(g) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and validly issued, are fully
paid and nonassessable and, except to the extent set forth in the
Prospectus, are owned by the Company directly or indirectly through one
or more wholly owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party.
(h) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets.
(i) Except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and applicable state securities
laws, the National Association of Securities Dealers, Inc. and the
NASDAQ National Market ("NASDAQ") in connection with the purchase and
distribution of the Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby.
(j) Deloitte & Touche LLP, who have expressed their opinions on the
audited financial statements and related schedules included in the
Registration Statement and the Prospectus, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(k) The financial statements, together with the related notes and
schedules, included in the Prospectus and in the Registration Statement
fairly present the financial position and the results of operations and
changes in financial position of the Company and its consolidated
subsidiaries at the respective dates or for the respective periods
therein specified. Such statements and related notes and schedules have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis except as may be set forth in
the Prospectus. The financial statements, together with the related
notes and schedules, included in the Prospectus and the Registration
Statement comply in all material respects with the Securities Act and
the Rules and Regulations thereunder. No other financial statements or
supporting schedules or exhibits are required by the Securities Act or
the Rules and Regulations thereunder to be included in the Prospectus
or the Registration Statement.
(l) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest financial statements included in the
Prospectus, any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(m) Except as set forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject that is required to
be described in the Registration Statement or the Prospectus and is not
described therein, or which, singularly or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, might
have a Material Adverse Effect or would prevent or adversely affect the
ability of the Company to perform its obligations under this Agreement;
and to the best of the Company's knowledge, no such proceedings have
been threatened or are contemplated by governmental authorities or
threatened by others.
(n) Neither the Company nor any of its subsidiaries (i) is in violation
of its charter or by-laws, (ii) is in default in any respect, and no
event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its property or
assets is subject or (iii) is in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject except, in the case of clauses
(ii) or (iii), for any violations or defaults which, singularly or in
the aggregate, would not have a Material Adverse Effect.
(o) The Company and each of its subsidiaries possess all licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate state, federal or
foreign regulatory agencies or bodies that are necessary or desirable
for the ownership of their respective properties or the conduct of
their respective businesses as described in the Prospectus, except
where any failures to possess or make the same, singularly or in the
aggregate, would not have a Material Adverse Effect, and the Company
has not received notification of any revocation or modification of any
such license, authorization or permit and has no reason to believe that
any such license, certificate, authorization or permit will not be
renewed.
(p) Neither the Company nor any of its subsidiaries is or, after giving
effect to the offering of the Stock and the application of the proceeds
thereof as described in the Prospectus, will become an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended and the rules and regulations of the Commission thereunder.
(q) Neither the Company nor any of its officers, directors or, to the
best of the Company's knowledge, affiliates has taken or will take,
directly or indirectly, any action designed or intended to stabilize or
manipulate the price of any security of the Company, or which caused or
resulted in, or which might in the future reasonably be expected to
cause or result in, stabilization or manipulation of the price of any
security of the Company.
(r) The Company and its subsidiaries own or possess the right to use
all patents, trademarks, trademark registrations, service marks,
service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as
being owned or used by them for the conduct of their respective
businesses, and the Company is not aware of any claim to the contrary
or any challenge by any other person to the rights of the Company and
its subsidiaries with respect to the foregoing. To the Company's
knowledge, the Company's business as now conducted and as proposed to
be conducted does not and will not infringe or conflict with any
patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses or other intellectual property or franchise right of
any person. Except as described in the Prospectus, no claim has been
made against the Company alleging the infringement by the Company of
any patent, trademark, service xxxx, trade name, copyright, trade
secret, license in or other intellectual property right of any person.
(s) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real or personal property that are material to the
business of the Company and its subsidiaries taken as a whole, in each
case, free and clear of all liens, encumbrances, claims and defects
that may result in a Material Adverse Effect, except as otherwise
disclosed in the Prospectus.
(t) No labor disturbance by the employees of the Company or any of its
subsidiaries exists or, to the best of the Company's knowledge, is
imminent that might be expected to have a Material Adverse Effect. The
Company is not aware that any key employee or significant group of
employees of the Company or any subsidiary plans to terminate
employment with the Company or any such subsidiary.
(u) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended from time
to time (the "Code")) or "accumulated funding deficiency" (as defined
in Section 302 of ERISA) or any of the events set forth in Section
4043(b) of ERISA (other than events with respect to which the 30-day
notice requirement under Section 4043 of ERISA has been waived) has
occurred with respect to any employee benefit plan that could have a
Material Adverse Effect; each employee benefit plan is in compliance in
all material respects with applicable law, including ERISA and the
Code; the Company has not incurred and does not expect to incur
liability under Title IV of ERISA with respect to the termination of,
or withdrawal from, any "pension plan"; and each "pension plan" (as
defined in ERISA) for which the Company would have any liability that
is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, that could cause the loss of such
qualification.
(v) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind
of toxic or other wastes or other hazardous substances by, due to or
caused by the Company or any of its subsidiaries (or, to the best of
the Company's knowledge, any other entity for whose acts or omissions
the Company or any of its subsidiaries is or may be liable) upon any of
the property now or previously owned or leased by the Company or any of
its subsidiaries, or upon any other property, in violation of any
statute or
any ordinance, rule, regulation, order, judgment, decree or permit or
that would, under any statute or any ordinance, rule (including rule of
common law), regulation, order, judgment, decree or permit, give rise
to any liability, except for any violation or liability which would not
have, singularly or in the aggregate with all such violations and
liabilities, a Material Adverse Effect; there has been no disposal,
discharge, emission or other release of any kind onto such property or
into the environment surrounding such property of any toxic or other
wastes or other hazardous substances with respect to which the Company
or any of its subsidiaries have knowledge, except for any such
disposal, discharge, emission or other release of any kind that would
not have, singularly or in the aggregate with all such discharges and
other releases, a Material Adverse Effect.
(w) The Company and its subsidiaries each (i) have filed all necessary
federal, state and foreign income and franchise tax returns, (ii) have
paid all federal state, local and foreign taxes due and payable for
which it is liable and (iii) do not have any tax deficiency or claims
outstanding or assessed or, to the best of the Company's knowledge,
proposed against it which could reasonably be expected to have a
Material Adverse Effect.
(x) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is customary for
companies of similar size engaged in similar businesses in similar
industries.
(y) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(z) The minute books of the Company and each of its subsidiaries have
been made available to the Underwriters and counsel for the
Underwriters, and such books (i) contain a complete summary of all
meetings and actions of the board of directors (including each board
committee) and shareholders of the Company and each of its subsidiaries
since the time of its respective incorporation through the date of the
latest meeting and action, and (ii) accurately in all material respects
reflect all transactions referred to in such minutes.
(aa) There is no lease, contract, agreement or document required by the
Securities Act or by the Rules and Regulations to be described in the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed therein as required; and all
descriptions of any such leases, contracts, agreements or documents
contained in the Registration Statement are accurate and complete
descriptions of such documents in all material respects. Other than as
described in the Prospectus, no such lease, contract or agreement has
been suspended or terminated for convenience or default by the Company
or any of the other parties thereto, and the Company has not received
notice of any such pending or threatened suspension or termination,
except for such pending or threatened suspensions or terminations that
would not reasonably be expected to, singularly or in the aggregate,
have a Material Adverse Effect.
(bb) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is
required to be described in the Prospectus and which is not so
described.
(cc) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Stock registered pursuant to the Registration
Statement, and each person or entity who has the right to require
registration of shares of Common Stock or other securities of the
Company because of the filing or effectiveness of the Registration
Statement has expressly waived such right.
(dd) Neither the Company nor any of its subsidiaries own any "margin
securities" as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"),
and none of the proceeds of the sale of the Stock will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Stock to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board.
(ee) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would give
rise to a valid claim against the Company or the Underwriters for a
brokerage commission, finder's fee or like payment in connection with
the offering and sale of the Stock.
(ff) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in
the Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
(gg) The Stock has been approved for quotation on NASDAQ.
(hh) The Company has taken all necessary actions to ensure that, upon
and at all times after the effectiveness of the Registration Statement,
it will be in compliance with all applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations promulgated
thereunder or implementing the provisions thereof (the "Xxxxxxxx-Xxxxx
Act") that are then in effect and is actively taking steps to ensure
that it will be in compliance with other applicable provisions of the
Xxxxxxxx-Xxxxx Act not currently in effect upon the effectiveness of
such provisions.
(ii) The Company has taken all necessary actions to ensure that, upon
and at all times after NASDAQ shall have approved the Stock for
inclusion, it will be in compliance with all applicable corporate
governance requirements set forth in the NASDAQ Marketplace Rules that
are then in effect and is actively taking steps to ensure that it will
be in compliance with other applicable corporate governance
requirements set forth in the NASDAQ Marketplace Rules not currently in
effect upon the effectiveness of such requirements.
(jj) Neither the Company nor any of its subsidiaries nor, to the best
of the Company's knowledge, any employee or agent of the Company or any
subsidiary has made any contribution or other payment to any official
of, or candidate for, any federal, state or foreign office in violation
of any law or of the character required to be disclosed in the
Prospectus.
(kk) There are no transactions, arrangements or other relationships
between and/or among the Company, any of its affiliates (as such term
is defined in Rule 405 of the Securities Act) and any unconsolidated
entity, including, but not limited to, any structured finance, special
purpose or limited purpose entity that could reasonably be expected to
materially affect the Company's
liquidity or the availability of or requirements for its capital
resources required to be described in the Prospectus that have not been
described as required.
(ll) There are no outstanding loans, advances (except normal advances
for business expense in the ordinary course of business) or guarantees
or indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company, except as disclosed in the
Prospectus.
(II) REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE SELLING
SHAREHOLDER. The Selling Shareholder represents and warrants to, and agrees
with, the several Underwriters that the Selling Shareholder:
(a) Has, and immediately prior to the Option Closing Date (as defined
in Section 3 hereof) the Selling Shareholder will have, good and valid
title to the shares of Stock to be sold by the Selling Shareholder
hereunder on such date, free and clear of all liens, encumbrances,
equities or claims; and upon delivery of such shares and payment
therefor pursuant hereto, good and valid title to such shares, free and
clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
(b) Has duly and irrevocably executed and delivered a power of
attorney, in substantially the form heretofore delivered by the
Representatives (the "Power of Attorney"), appointing, Xxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxx and each of them, as attorney-in-fact (the
"Attorneys-in-fact") with authority to execute and deliver this
Agreement on behalf of such Selling Shareholder, to authorize the
delivery of the shares of Stock to be sold by such Selling Shareholder
hereunder and otherwise to act on behalf of such Selling Shareholder in
connection with the transactions contemplated by this Agreement.
(c) Has duly and irrevocably executed and delivered a custody
agreement, in substantially the form heretofore delivered by the
Representatives (the "Custody Agreement"), with the Company as
custodian (the "Custodian"), pursuant to which certificates in
negotiable form for the shares of Stock to be sold by such Selling
Shareholder hereunder have been placed in custody for delivery under
this Agreement.
(d) Has full right, power and authority to enter into this Agreement,
the Power of Attorney and the Custody Agreement; the execution,
delivery and performance of this Agreement, the Power of Attorney and
the Custody Agreement by such Selling Shareholder and the consummation
by such Selling Shareholder of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which such Selling Shareholder is a party or by which
the Selling Shareholder is bound or to which any of the property or
assets of the Selling Shareholder is subject, or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Selling Shareholder or the property or
assets of the Selling Shareholder; and, except for the registration of
the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody Agreement by such
Selling Shareholder and the consummation by the Selling Shareholder of
the transactions contemplated hereby and thereby.
(e) The Registration Statement does not, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The preceding
sentence applies only to the extent that any information contained in
or omitted from the Registration Statement or Prospectus was in
reliance upon and in conformity with written information furnished to
the Company by such Selling Shareholder specifically for inclusion
therein.
(f) Such Selling Shareholder has not taken, directly or indirectly, any
action designed or intended to stabilize or manipulate the price of any
security of the Company, or which caused or resulted in, or which might
reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company.
3. PURCHASE SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company that number of shares of Firm Stock set forth opposite the name
of such Underwriter in Schedule A hereto.
The purchase price per share to be paid by the Underwriters to the
Company for the Stock will be $_____ per share (the "Purchase Price").
The Company will deliver the Firm Stock to the Representatives for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York time, on the second full business day preceding the
First Closing Date (as defined below)) against payment of the aggregate Purchase
Price therefor by wire transfer in federal (same-day) funds to an account at a
bank acceptable to XX Xxxxx, payable to the order of the Company, all at the
offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each Underwriter hereunder. The time and date of the delivery and closing
shall be at 10:00 A.M., New York time, on _______, 2005, in accordance with Rule
15c6-1 of the Exchange Act. The time and date of such payment and delivery are
herein referred to as the "First Closing Date". The First Closing Date and the
location of delivery of, and the form of payment for, the Firm Stock may be
varied by agreement between the Company and XX Xxxxx.
The Company shall make the certificates for the Firm Stock available to
the Representatives for examination on behalf of the Underwriters in New York,
New York at least twenty-four hours prior to the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Stock. The price
per share to be paid for the Optional Stock shall be the Purchase Price. The
Selling Shareholder agrees to sell to the Underwriters the number of shares of
Optional Stock specified in the written notice by XX Xxxxx described below and
the Underwriters agree, severally and not jointly, to purchase such shares of
Optional Stock. Such shares of Optional Stock shall be purchased from the
Selling Shareholder for the account of each Underwriter in the same proportion
as the number of shares of Firm Stock set forth opposite such Underwriter's name
bears to the total number of shares of Firm Stock (subject to adjustment by XX
Xxxxx to eliminate fractions). The option granted hereby may be exercised as to
all or any part of the Optional Stock at any time, and from time to time, not
more than thirty (30)
days subsequent to the date of this Agreement. No Optional Stock shall be sold
and delivered unless the Firm Stock previously has been, or simultaneously is,
sold and delivered. The right to purchase the Optional Stock or any portion
thereof may be surrendered and terminated at any time upon notice by XX Xxxxx to
the Company and the Selling Shareholder.
The option granted hereby may be exercised by written notice being
given to the Company and the Selling Shareholder by XX Xxxxx setting forth the
number of shares of the Optional Stock to be purchased by the Underwriters and
the date and time for delivery of and payment for the Optional Stock. Each date
and time for delivery of and payment for the Optional Stock (which may be the
First Closing Date, but not earlier) is herein called the "Option Closing Date"
and shall in no event be earlier than two (2) business days nor later than five
(5) business days after written notice is given. (The Option Closing Date and
the First Closing Date are herein called the "Closing Dates".)
The Selling Shareholder will deliver the Optional Stock to the
Underwriters (in the form of definitive certificates, issued in such names and
in such denominations as the Representatives may direct by notice in writing to
the Company given at or prior to 12:00 Noon, New York time, on the second full
business day preceding the Option Closing Date) against payment of the aggregate
Purchase Price therefor in federal (same day) funds by certified or official
bank check or checks or wire transfer to an account at a bank acceptable to XX
Xxxxx, payable to the order of the Company, as Custodian for the Selling
Shareholder, all at the offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder. The Selling
Shareholder shall make the certificates for the Optional Stock available to the
Representatives for examination on behalf of the Underwriters in New York, New
York not later than 10:00 A.M., New York time, on the business day preceding the
Option Closing Date. The Option Closing Date and the location of delivery of,
and the form of payment for, the Optional Stock may be varied by agreement among
the Selling Shareholder and XX Xxxxx.
The several Underwriters propose to offer the Stock for sale upon the
terms and conditions set forth in the Prospectus.
4. (I) FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration Statement, if
necessary, in a form reasonably approved by the Representatives and
file such Rule 462(b) Registration Statement with the Commission on the
date hereof; prepare the Prospectus in a form reasonably approved by
the Representatives and file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the second business day
following the execution and delivery of this Agreement; make no further
amendment or any supplement to the Registration Statement or to the
Prospectus to which the Representatives shall reasonably object by
notice to the Company after a reasonable period to review; advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with
copies thereof; advise the Representatives, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification of
the Stock for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, use promptly its
reasonable best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the
effective date of the Initial Registration Statement when a prospectus
relating to the Stock is required to be delivered any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the
Securities Act, the Company will promptly notify the Representatives
thereof and upon their request will prepare an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance. The Company will furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of such amended or
supplemented Prospectus; and in case any Underwriter is required to
deliver a prospectus relating to the Stock nine months or more after
the effective date of the Initial Registration Statement, the Company
upon the request of the Representatives and at the expense of such
Underwriter will prepare promptly an amended or supplemented Prospectus
as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Securities Act.
(c) To furnish promptly to each of the Representatives and to counsel
for the Underwriters a signed copy of each Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith.
(d) To deliver promptly to the Representatives in New York City such
number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission and each amendment thereto (in
each case, excluding exhibits), (ii) each Preliminary Prospectus, (iii)
the Prospectus (not later than 10:00 A.M., New York time, of the
business day following the execution and delivery of this Agreement)
and any amended or supplemented Prospectus (not later than 10:00 A.M.,
New York time, on the business day following the date of such amendment
or supplement).
(e) To make generally available to its shareholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158).
(f) The Company will promptly take from time to time such actions as
the Representatives may reasonably request to qualify the Stock for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Representatives may designate and to continue such
qualifications in effect for so long as required for the distribution
of the Stock; provided, that, the Company and its subsidiaries shall
not be obligated to qualify as foreign corporations in any jurisdiction
in which they are not so qualified or to file a general consent to
service of process in any jurisdiction;
(g) During the period of five years from the date hereof, the Company
will deliver to the Representatives and, upon reasonable request, to
each of the other Underwriters, (i) as soon as they are available,
copies of all reports or other communications furnished to shareholders
and (ii) as soon as they are available, copies of any reports and
financial statements furnished or filed with the Commission pursuant to
the Exchange Act or any national securities exchange or automatic
quotation system on which the Stock is listed or quoted.
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell or otherwise dispose of any shares
of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock for a period of 180 days from the date of
the Prospectus without the prior written consent of XX Xxxxx other than
(1) the Company's sale of the Stock hereunder, (2) the Company's
issuance of Common Stock upon the exercise of stock options as are
presently outstanding and described in the Prospectus and (3) the grant
of options or the Company's sale or other award of Common Stock
pursuant to stock options plans, employee stock purchase plans or other
similar plans as are presently existing and described in the
Prospectus; provided, that, in the case of clause (3), upon exercise of
any such option or receipt of such stock award, the optionee or grantee
executes a lock-up letter, substantially in the form of Exhibit I
hereto. The Company will cause each of its officers, directors,
shareholders and such optionholders listed on Schedule C hereto to
furnish to the Representatives, prior to the First Closing Date, a
lock-up letter, substantially in the form of Exhibit I hereto.
(i) The Company will supply the Representatives with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock under the
Securities Act.
(j) Prior to each of the Closing Dates, the Company will furnish to the
Representatives, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company for
any periods subsequent to the periods covered by the financial
statements appearing in the Registration Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any
press release or other communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial
or otherwise, or earnings, business affairs or business prospects
(except for routine oral marketing communications in the ordinary
course of business and consistent with the past practices of the
Company and of which the Representatives are notified), without the
prior written consent of the Representatives, unless in the judgment of
the Company and its counsel, and after notification to the
Representatives, such press release or communication is required by
law.
(l) In connection with the offering of the Stock, until XX Xxxxx shall
have notified the Company of the completion of the resale of the Stock,
the Company will not, and will cause its affiliated purchasers (as
defined in Regulation M under the Exchange Act) not to, either alone or
with one or more other persons, bid for or purchase, for any account in
which it or any of its affiliated purchasers has a beneficial interest,
any Stock, or attempt to induce any person to purchase any Stock; and
not to, and to cause its affiliated purchasers not to, make bids or
purchase for the purpose of creating actual, or apparent, active
trading in or of raising the price of the Stock.
(m) The Company will not take any action prior to each of the Closing
Dates which would require the Prospectus to be amended or supplemented
pursuant to Section 4(I)(b).
(n) The Company shall at all times comply with all applicable
provisions of the Xxxxxxxx-Xxxxx Act in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Stock
as set forth in the Prospectus under the heading "Use of Proceeds".
(II) FURTHER AGREEMENTS OF THE SELLING SHAREHOLDER. The Selling
Shareholder agrees with the several Underwriters that:
(a) The Selling Shareholder will enter into the lock-up letter,
substantially in the form of Exhibit I hereto.
(b) The shares of Stock represented by the certificates held in custody
under the Custody Agreement are for the benefit of and coupled with and
subject to the interests of the Underwriters and that the arrangement
for such custody and the appointment of the Attorneys-in-fact are
irrevocable; that the obligations of the Selling Shareholder hereunder
shall not be terminated by operation of law, whether by the death or
incapacity, liquidation or dissolution of the Selling Shareholder, or
any other event, that if the Selling Shareholder should die or become
incapacitated or is liquidated or dissolved or any other event occurs,
before the delivery of the Stock hereunder, certificates for the Stock
to be sold by the Selling Shareholder shall be delivered on behalf of
the Selling Shareholder in accordance with the terms and conditions of
this Agreement and the Custody Agreement, and action taken by the
Attorneys-in-fact or any of them under the Power of Attorney shall be
as valid as if such death, incapacity, liquidation or dissolution or
other event had not occurred, whether or not the Custodian, the
Attorneys-in-fact or any of them shall have notice of such death,
incapacity, liquidation or dissolution or other event.
(c) The Selling Shareholder will not take, directly or indirectly, any
action designed or intended to stabilize or manipulate the price of any
security of the Company, or that might reasonably be expected to cause
or result in the stabilization or manipulation of the price of any
security of the Company.
(d) The Selling Shareholder will deliver to XX Xxxxx on or prior to the
Option Closing Date a properly completed and executed United States
Treasury Department Form W-8 (if the Selling Shareholder is a
non-United States person) or Form W-9 (if the Selling Shareholder is a
United States person) or such other applicable form or statement
specified by Treasury Department regulations in lieu thereof.
5. PAYMENT OF EXPENSES. The Company agrees with the Underwriters to pay: (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Stock and any taxes payable in that connection; (b) the costs incident to
the Registration of the Stock under the Securities Act; (c) the costs incident
to the preparation, printing and distribution of the Registration Statement,
Preliminary Prospectus, Prospectus and any amendments and exhibits thereto; (d)
the costs of printing, reproducing and distributing the Power of Attorney, the
Custody Agreement, the "Agreement Among Underwriters" between the
Representatives and the Underwriters, the Master Selected Dealers' Agreement,
the Underwriters' Questionnaire and this Agreement by mail, telex or other means
of communications; (e) the fees and expenses (including related fees and
expenses of counsel for the Underwriters) incurred in connection with filings
made with the National Association of Securities Dealers, Inc.; (f) any
applicable listing or other fees; (g) the fees and expenses of qualifying the
Stock under the securities laws of the several jurisdictions as provided in
Section 4(I)(f) and of preparing, printing and distributing Blue Sky Memoranda
and Legal Investment Surveys (including related fees and expenses of counsel to
the Underwriters); (h) all fees and expenses of the registrar and transfer agent
of the Stock; and (i) all other costs and expenses incident to the performance
of the obligations of the Company and of the Selling Shareholder under this
Agreement (including, without limitation, the fees and expenses of the Company's
counsel and the Company's independent accountants); provided, that, except as
otherwise provided in this Section 5 and in Section 9, the Underwriters shall
pay their own costs and expenses, including the fees and expenses of their
counsel, any transfer taxes on the Stock which they may sell and the expenses of
advertising any offering of the Stock made by the Underwriters.
The Selling Shareholder will pay all fees and expenses incident to the
performance of the Selling Shareholder's obligations under this Agreement which
are not otherwise specifically provided for herein, including, but not limited
to, any fees and expenses of counsel for the Selling Shareholder, the fees and
expenses of the Attorneys-in-fact and the Custodian and all expenses and taxes
incident to the sale and delivery of the Stock to be sold by the Selling
Shareholder to the Underwriters hereunder.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations of the
several Underwriters hereunder are subject to the accuracy, when made and on
each of the Closing Dates, of the representations and warranties of the Company
and the Selling Shareholder contained herein, to the accuracy of the statements
of the Company and the Selling Shareholder made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the Selling
Shareholder of their obligations hereunder and to each of the following
additional terms and conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been initiated or threatened by the Commission, and any
request for additional information on the part of the Commission (to be
included in the Registration Statement or the Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction of the
Representatives. The Rule 462(b) Registration Statement, if any, and
the Prospectus shall have been timely filed with the Commission in
accordance with Section 4(I)(a).
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Custody
Agreement, the Power of Attorney, the Stock, the Registration Statement
and the Prospectus and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriters,
and the Company and the Selling Shareholder shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Proskauer Rose LLP shall have furnished to the Representatives such
counsel's written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, and is
duly qualified to do business and is in good standing
as a foreign corporation in New York and each
jurisdiction listed in such opinion, and has all
corporate power and authority necessary to own or
hold its properties and to conduct the business in
which it is engaged.
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares
of capital stock of the Company, including the Stock
being delivered on the Closing Date, have been duly
and validly authorized and issued, are fully paid and
nonassessable and conform in all material respects to
the description thereof contained in the Prospectus.
(iii) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Stock
pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under any
material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to
such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of
the properties or assets of the Company or any of its
subsidiaries is subject (all of which agreements and
instruments shall be listed in such opinion), nor
will such actions result in any violation of the
Charter or by-laws of the Company or any statute,
rule or regulation, or any order, known to such
counsel, of any court or governmental agency or body
or court having jurisdiction over the Company or any
of its subsidiaries or any of their properties or
assets. Except for the registration of the Stock
under the Securities Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under the Exchange
Act and applicable state securities laws in
connection with the purchase and distribution of the
Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration
with, any such court or governmental agency or body
is required for the execution, delivery and
performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby.
(vi) The statements in the Prospectus under the headings
"Description of Capital Stock", "Shares Eligible for
Future Sale" and "Underwriting" (only with respect to
the description of this Agreement) to the extent that
they constitute summaries of matters of law or
regulation or legal conclusions, have been reviewed
by such counsel and fairly summarize the matters
described therein in all material respects.
(vii) The description in the Registration Statement and
Prospectus of statutes, legal or governmental
proceedings and contracts and other documents are
accurate in all material respects; and to such
counsel's knowledge, there are no statutes, legal or
governmental proceedings, contracts or other
documents of a character required to be described in
the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which
are not described or filed as required.
(viii) To such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any
property or asset of the Company or any of its
subsidiaries is the subject which, singularly or in
the aggregate, if determined adversely to the Company
or any of its subsidiaries, might have a Material
Adverse Effect or would prevent or adversely affect
the ability of the Company to perform its obligations
under this Agreement; and, to such counsel's
knowledge, no such proceedings have been threatened
or are contemplated by governmental authorities or
threatened by others.
(ix) Based solely upon the oral advice of the Commission,
the Registration Statement was declared effective
under the Securities Act as of the date and time
specified in such opinion, the Rule 462(b)
Registration Statement, if any, was filed with the
Commission on the date specified therein, the
Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date
specified therein and, based solely upon the oral
advice of the Commission, no stop order suspending
the effectiveness of the Registration Statement has
been issued, and no proceeding for that purpose is
pending or threatened by the Commission.
(x) The Registration Statement, as of the effective date
and the Prospectus, as of its date, and any further
amendments or supplements thereto, as of their
respective dates, made by the Company prior to the
Closing Date (other than the financial statements and
other financial data contained therein, as to which
such counsel need express no opinion) complied as to
form in all material respects with the requirements
of the Securities Act and the Rules and Regulations.
(xi) To such counsel's knowledge, no person or entity has
the right to require registration of shares of Common
Stock or other securities of the Company because of
the filing or effectiveness of the Registration
Statement or otherwise, except for persons and
entities who have expressly waived such right or who
have been given proper notice and have failed to
exercise such right within the time or times required
under the terms and conditions of such right.
(xii) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the
Investment Company Act and the rules and regulations
of the Commission thereunder.
Such counsel shall also have furnished to the Representatives
a written statement, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Representatives, to the effect that in the course of the preparation of
the Registration Statement and the Prospectus, such counsel has
participated in conferences with certain officers of the Company, with
representatives of the independent or certified public accountants for
the Company and with representatives of the Representatives and counsel
for the Underwriters at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel
need not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than as expressly set
forth in such opinion), on the basis of the foregoing, nothing has come
to such counsel's attention that would lead them to believe that the
Registration Statement (other than the financial statements and related
notes thereto and the other financial and accounting data set forth
therein or omitted therefrom, as to which such counsel need express no
view), as of its effective date, contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein not misleading or that the Prospectus (other than
the financial statements and related notes thereto and the other
financial and accounting data set forth therein or omitted therefrom,
as to which such counsel need express no view) as of its date and the
Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(e) Proskauer Rose LLP shall have furnished to the Representatives such
counsel's written opinion, as counsel to the Selling Shareholder,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) The Selling Shareholder has full right, power and
authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement; the execution,
delivery and performance of this Agreement, the Power
of Attorney and the Custody Agreement by the Selling
Shareholder and the consummation by the Selling
Shareholder of the transactions contemplated hereby
and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions
of, or constitute a default under, any statute or any
material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to
such counsel to which the Selling Shareholder is a
party or by which the Selling Shareholder is bound or
to which any of the property or assets of the Selling
Shareholder is subject (all of which agreements and
instruments shall be listed in such opinion), or any
rule or regulation, or any order, known to such
counsel, of any court or governmental agency or body
having jurisdiction over the Selling Shareholder or
the property or assets of the Selling Shareholder;
and, except for the registration of the Stock under
the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable
state securities laws in connection with the purchase
and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or
filing or registration with, any such court or
governmental agency or body is required for the
execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody
Agreement by the Selling Shareholder and the
consummation by the Selling Shareholder of the
transactions contemplated hereby and thereby.
(ii) This Agreement has been duly executed and delivered
by or on behalf of the Selling Shareholder.
(iii) The Power-of-Attorney and a Custody Agreement have
been duly executed and delivered by the Selling
Shareholder and constitute valid and binding
agreements of the Selling Shareholder.
(iv) Upon payment for, and delivery of, the shares of
Stock to be sold by the Selling Shareholder under
this Agreement in accordance with the terms hereof
(assuming that such Underwriters have no notice of
any adverse claim within the meaning of Section 8-105
of the New York Uniform Commercial Code (the "UCC")
to such shares of Stock), (a) each Underwriter shall
be a protected purchaser of such shares of Stock to
be purchased by it within the meaning of Section
8-303 of the UCC, and (b) each Underwriter will
acquire its interest in such shares of Stock
(including, without limitation, all rights that the
Selling Shareholder had or has the power to transfer
in such shares of Stock) free of any adverse claim.
(f) Xxxxxxx en Dijk notarissen shall have furnished to the
Representatives such counsel's written opinion, as foreign counsel to
the Company, addressed to the Underwriters and dated the Closing Date,
in form and substance reasonably satisfactory to the Representatives,
to the effect that:
(i) Sybari Software B.V. (the "Subsidiary") has been duly
incorporated and is validly existing as a limited
liability company in good standing under the laws of
its jurisdiction of incorporation, and it is duly
qualified to do business and is in good standing in
each jurisdiction listed in such opinion, and has all
corporate power and authority necessary to own or
hold its properties and to conduct the business in
which it is engaged.
(ii) All of the outstanding shares of capital stock of the
Subsidiary have been duly authorized and validly
issued, are fully paid and nonassessable and are
directly owned by the Company, free and clear of any
claim, lien, encumbrance, security interest,
restriction upon voting or transfer or any other
claim of any third party.
(g) The Representatives shall have received from Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date, with respect to such matters as
the Underwriters may reasonably require, and the Company and the
Selling Shareholder shall have furnished to such counsel such documents
as they request for enabling them to pass upon such matters.
(h) At the time of the execution of this Agreement, the Representatives
shall have received from each of Deloitte & Touche LLP and Xxxxx,
Xxxxxx & Company, LLP a letter, addressed to the Underwriters and dated
such date, in form and substance satisfactory to the Representatives
(i) confirming that they are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the Securities Act and the Rules and Regulations and (ii) stating the
conclusions and findings of such firm with respect to the financial
statements and certain financial information contained or incorporated
by reference in the Prospectus.
(i) On the Closing Date, the Representatives shall have received a
letter (the "bring-down letter") from each of Deloitte & Touche LLP and
Xxxxx, Xxxxxx & Company, LLP addressed to the Underwriters and dated
the Closing Date confirming, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus as of a date not more than three business days
prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Representatives
concurrently with the execution of this Agreement pursuant to Section
6(h).
(j) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that (i) such officers have carefully examined the Registration
Statement and the Prospectus and, in their opinion, the Registration
Statement as of their respective effective dates and the Prospectus, as
of each such effective date, did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) since the effective date of the Registration
Statement, no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectus, (iii) to the best of their knowledge after reasonable
investigation, as of the Closing Date, the representations and
warranties of the Company in this Agreement are true and correct and
the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, and (iv) subsequent to the date of the most
recent financial statements included in the Prospectus, there has been
no material adverse change in the financial position or results of
operation of the Company and its subsidiaries, or any change, or any
development including a prospective change, that would have a Material
Adverse Effect, except as set forth in the Prospectus.
(k) The Selling Shareholder (or the Custodian or one or more
Attorneys-in-fact on behalf of the Selling Shareholder) shall have
furnished to the Representatives on the Option Closing Date a
certificate, dated the such date, signed by, or on behalf of, the
Selling Shareholder stating that the representations, warranties and
agreements of the Selling Shareholder contained herein are true and
correct as of the Option Closing Date and that the Selling Shareholder
has complied with all agreements contained herein to be performed by
the Selling Shareholder at or prior to the Option Closing Date.
(l) (i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest financial statements included
in the Prospectus, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus and (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a
prospective change, in or affecting the business, general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Stock on the
terms and in the manner contemplated in the Prospectus.
(m) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental
agency or body that would, as of the Closing Date, prevent the issuance
or sale of the Stock or materially and adversely affect or reasonably
be expected to materially and adversely affect the business or
operations of the Company; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date that would
prevent the issuance or sale of the Stock or materially and adversely
affect or reasonably be expected to materially and adversely affect the
business or operations of the Company.
(n) Subsequent to the execution and delivery of this Agreement, to the
extent applicable, (i) no downgrading shall have occurred in the
Company's corporate credit rating or the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of any of the
Company's debt securities.
(o) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange
or in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have
been suspended or minimum or maximum prices or maximum range for prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been
declared by Federal or state authorities or a material disruption shall
have occurred in commercial banking or securities settlement or
clearance services in the United States, (iii) the United States shall
have become engaged in hostilities, or the subject of an act of
terrorism, or there shall have been an escalation in hostilities
involving the United States, or there shall have been a declaration of
a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such)
as to make it, in the judgment of the Representatives, impracticable or
inadvisable to proceed with the sale or delivery of the Stock on the
terms and in the manner contemplated in the Prospectus.
(p) NASDAQ shall have approved the Stock for inclusion.
(q) XX Xxxxx shall have received the written agreements, substantially
in the form of Exhibit I hereto, of the Company's officers, directors,
shareholders and such optionholders listed on Schedule C to this
Agreement.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter, its
officers, employees, representatives and agents and each person, if
any, who controls any Underwriter within the meaning of the Securities
Act (collectively, the "Underwriter Indemnified Parties" and, each an
"Underwriter Indemnified Party") against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
that Underwriter Indemnified Party may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Preliminary Prospectus, the Registration Statement or the Prospectus or
in any amendment or supplement thereto or the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto a
material fact required to be stated therein or necessary to make the
statements therein not misleading and shall reimburse each Underwriter
Indemnified Party promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter Indemnified Party in connection
with investigating or preparing to defend or defending against or
appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from the
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for use
therein, which information the parties hereto agree is limited to the
Underwriters' Information.
This indemnity agreement is not exclusive and will be in addition to
any liability that the Company and Principal Subsidiaries might
otherwise have and shall not limit any rights or remedies which may
otherwise be available at law or in equity to each Underwriter
Indemnified Party.
(b) The Selling Shareholder shall indemnify and hold harmless each
Underwriter Indemnified Party, against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
that Underwriter Indemnified may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Preliminary Prospectus, the Registration Statement or the Prospectus or
in any amendment or supplement thereto or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case, only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the
Selling Shareholder specifically for inclusion therein, and shall
reimburse each Underwriter Indemnified Party promptly upon demand for
any legal or other expenses reasonably incurred by that Underwriter
Indemnified Party in connection with investigating or preparing to
defend or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the liability of
the Selling Shareholder under this Section 7(b) shall not exceed the
net proceeds (after deducting underwriting discounts and commissions,
but before deducting other expenses payable by the Selling Shareholder)
received by the Selling Shareholder from the sale of shares of Stock
hereunder.
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers, employees, representatives and
agents, each of its directors and each person, if any, who controls the
Company within the meaning of the Securities Act (collectively, the
"Company Indemnified Parties" and each a "Company Indemnified Party")
and the Selling Shareholder against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
the Company Indemnified Parties or the Selling Shareholder may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of
that Underwriter specifically for use therein, and shall reimburse the
Company Indemnified Parties and the Selling Shareholder for any legal
or other expenses reasonably incurred by such parties in connection
with investigating or preparing to defend or defending against or
appearing as third-party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, that, the parties hereto hereby agree that such written
information provided by the Underwriters consists solely of the
Underwriters' Information. This indemnity agreement is not exclusive
and will be in addition to any liability that the Underwriters might
otherwise have and shall not limit any rights or remedies that may
otherwise be available at law or in equity to the Company Indemnified
Parties and Selling Shareholder.
(d) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability that it may have under
this
Section 7 except to the extent it has been materially prejudiced by
such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability that it may
have to an indemnified party otherwise than under this Section 7. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 7 for any
reasonable legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that any
indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof but the
reasonable fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) such
indemnified party shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in
the reasonable judgment of such counsel it is advisable for such
indemnified party to employ separate counsel or (iii) the indemnifying
party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated
in writing by XX Xxxxx, if the indemnified parties under this Section 7
consist of any Underwriter Indemnified Party, or by the Company if the
indemnified parties under this Section 7 consist of any Company
Indemnified Parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 7(a), 7(b) and 7(c), shall
use all reasonable efforts to cooperate with the indemnifying party in
the defense of any such action or claim. Subject to the provisions of
Section 7(e) below, no indemnifying party shall be liable for any
settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff
in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(e) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by this Section 7
effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the
request for reimbursement, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior
to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement (other than
reimbursement for fees and expenses that the indemnifying party is
contesting in good faith).
(f) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
Section 7(a), 7(b) or 7(c), then each indemnifying party shall, in lieu
of indemnifying such indemnified party, contribute to the amount paid
or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Company and the Selling Shareholder on the one hand and the
Underwriters on the other from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Selling Shareholder on the one hand and
the Underwriters on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Shareholder on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by
the Company and the Selling Shareholder bear to the total underwriting
discounts and commissions received by the Underwriters with respect to
the Stock purchased under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company and the Selling Shareholder on the one hand or
the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission; provided, that, the parties
hereto agree that the written information furnished to the Company
through the Representatives by or on behalf of the Underwriters for use
in any Preliminary Prospectus, the Registration Statement or the
Prospectus consists solely of the Underwriters' Information. The
Company, the Selling Shareholder and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
Section 7(f) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this
Section 7(f) shall be deemed to include, for purposes of this Section
7(f), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
7(f), (i) no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public were offered to the
public less the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission, and (ii) the
Selling Shareholder shall not be required to contribute any amount in
excess of the net proceeds (after deducting underwriting discounts and
commissions, but before deducting other expenses payable by the Selling
Shareholder) received by the Selling Shareholder from the sale of
shares of Stock hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 7(f) are several
in proportion to their respective underwriting obligations and not
joint.
8. TERMINATION. The obligations of the Underwriters hereunder may be terminated
by XX Xxxxx, in its absolute discretion, by notice given to and received by the
Company and the Selling Shareholder prior to delivery of and payment for the
Firm Stock if, prior to that time, any of the events described in Sections 6(l),
6(n) or 6(o) have occurred or if the Underwriters shall decline to purchase the
Stock for any reason permitted under this Agreement.
9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement shall have
been terminated pursuant to Section 8 or Section 10, (b) the Company or the
Selling Shareholder shall fail to tender the Stock for delivery to the
Underwriters for any reason not permitted under this Agreement or (c) the
Underwriters shall decline to purchase the Stock for any reason permitted under
this Agreement, the Company shall reimburse the Underwriters for the reasonable
fees and expenses of their counsel and for such other out-of-pocket expenses as
shall have been reasonably incurred by them in connection with this Agreement
and the proposed purchase of the Stock, and upon demand, the Company shall pay
the full amount thereof to XX Xxxxx. If this Agreement is terminated pursuant to
Section 10 by reason of the default of one or more Underwriters, neither the
Company nor the Selling Shareholder shall be obligated to reimburse any
defaulting Underwriter on account of those expenses.
10. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock hereunder and
the aggregate number of shares that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%) of the total
number of shares underwritten, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the shares that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters shall so default and the aggregate
number of shares with respect to which such default or defaults occur is more
than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representatives and the Company for the
purchase of such shares by other persons are not made within forty-eight (48)
hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 10, (i) the Company
shall have the right to postpone the Closing Dates for a period of not more than
five (5) full business days in order that the Company and the Selling
Shareholder may effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees promptly to file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary, and (ii) the respective numbers of shares to be purchased by the
remaining Underwriters or substituted Underwriters shall be taken as the basis
of their underwriting obligation for all purposes of this Agreement. Nothing
herein contained shall relieve any defaulting Underwriter of its liability to
the Company, the Selling Shareholder or the other Underwriters for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 10 shall be without liability on the part of any non-defaulting
Underwriter, the Selling Shareholder or the Company, except expenses to be paid
or reimbursed pursuant to Sections 5 and 9 and except the provisions of Section
7 shall not terminate and shall remain in effect.
11. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the several Underwriters, the
Company and the Selling Shareholder and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person other than the persons mentioned in the preceding sentence any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the
indemnities of the Company and the Selling Shareholder contained in this
Agreement shall also be for the benefit of the Underwriter Indemnified Parties,
and the indemnities of the several Underwriters shall also be for the benefit of
the Company Indemnified Parties. It is understood that the Underwriters'
responsibility to the Company is solely contractual in nature and the
Underwriters do not owe the Company, or any other party, any fiduciary duty as a
result of this Agreement.
12. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company, the Selling Shareholder and the several Underwriters,
as set forth in this Agreement or made by them respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, the Selling Shareholder,
the Company or any person controlling any of them and shall survive delivery of
and payment for the Stock.
13. NOTICES. All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to XX Xxxxx & Co., LLC, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxx (Fax:
000-000-0000);
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to Sybari Software, Inc., 000 Xxxxxxxxx Xxxx,
Xxxx Xxxxxxxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxx (Fax:
000-000-0000);
(c) if to the Selling Shareholder, shall be delivered or sent by mail,
telex or facsimile transmission to the Selling Shareholder at the
address set forth on Schedule B hereto; provided, however, that any
notice to an Underwriter pursuant to Section 7 shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at
its address set forth in its acceptance telex to the Representatives,
which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
14. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the Underwriters' Information consists
solely of the following information in the Prospectus: (i) the last paragraph on
the front cover page concerning the terms of the offering by the Underwriters;
and (ii) the statements concerning the Underwriters contained in the third and
ninth paragraphs under the heading "Underwriting".
17. AUTHORITY OF THE REPRESENTATIVES AND ATTORNEYS-IN-FACT. In connection with
this Agreement, you will act for and on behalf of the several Underwriters, and
any action taken under this Agreement by the Representatives, will be binding on
all the Underwriters; and any action taken under this Agreement by any of the
Attorneys-in-fact will be binding on the Selling Shareholder.
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or
enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
19. GENERAL. This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject
matter hereof. In this Agreement, the masculine, feminine and
neuter genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this Agreement may
be waived, only by a writing signed by the Company, the Selling Shareholder and
the Representatives.
20. COUNTERPARTS. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Any person executing and delivering this Agreement as Attorney-in-fact
for the Selling Shareholder represents by so doing that he has been duly
appointed as Attorney-in-fact by such Selling Shareholder pursuant to a validly
existing and binding Power of Attorney that authorizes such Attorney-in-fact to
take such action.
If the foregoing is in accordance with your understanding of the
agreement among the Company, the Selling Shareholder and the several
Underwriters, kindly indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
SYBARI SOFTWARE, INC.
By:________________________________________
Name:
Title:
SELLING SHAREHOLDER LISTED
IN SCHEDULE B
By:________________________________________
Name:
Attorney-in-fact
Acting on behalf of the Selling Shareholder
listed in Schedule B.
Accepted as of
the date first above written:
XX XXXXX & CO., LLC
WACHOVIA CAPITAL MARKETS, LLC
XXXXXXX XXXXX & ASSOCIATES, INC.
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: XX XXXXX & CO., LLC
By:_____________________________
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Head of Equity Capital Markets
SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
---- --------- ---------
XX Xxxxx & Co., LLC...............................................
Wachovia Capital Markets, LLC.....................................
Xxxxxxx Xxxxx & Associates, Inc. .................................
--------- -------
Total............................................................. 3,350,000 502,500
========= =======
SCHEDULE B
Selling Shareholder
Xxxxxx Xxxxxx
00-00 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxx Xxxx 00000
SCHEDULE C
Number of
Shares of Common
Stock Underlying
Optionholder Options
------------ ----------------
[Name and address].........................................................
EXHIBIT I
Form of Lock-Up Agreement
XX Xxxxx & Co., LLC
Wachovia Capital Markets, LLC
Xxxxxxx Xxxxx & Associates, Inc.
As representatives of the
several Underwriters
c/o XX Xxxxx & Co., LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Sybari Software, Inc. Common Stock
Ladies and Gentlemen:
In order to induce XX Xxxxx & Co., LLC ("XX Xxxxx"), Wachovia Capital
Markets, LLC and Xxxxxxx Xxxxx & Associates, Inc. (together with XX Xxxxx, the
"Representatives"), to enter into a certain underwriting agreement with Sybari
Software, Inc. (the "Company"), with respect to the public offering (the "Public
Offering") of shares of the Company's Common Stock ("Common Stock"), the
undersigned hereby agrees that for a period of 180 days following the date
printed on the front cover page of the final prospectus filed by the Company
with the Securities and Exchange Commission in connection with the Public
Offering, the undersigned will not, without the prior written consent of XX
Xxxxx, directly or indirectly, (i) offer, sell, assign, transfer, pledge,
contract to sell, or otherwise dispose of, any shares of Common Stock
(including, without limitation, Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations promulgated under the Securities Act of 1933, as the same may be
amended or supplemented from time to time (such shares, the "Beneficially Owned
Shares")) or securities convertible into or exercisable or exchangeable for
Common Stock, (ii) enter into any swap, hedge or similar agreement or
arrangement that transfers in whole or in part, the economic risk of ownership
of the Beneficially Owned Shares or securities convertible into or exercisable
or exchangeable for Common Stock or (iii) engage in any short selling of the
Common Stock.
Notwithstanding the foregoing, the lock-up restrictions described in
this Agreement shall not apply to any shares of Common Stock, any Beneficially
Owned Shares or securities convertible into or exercisable or exchangeable for
Common Stock transferred pursuant to: (a) bona fide gifts not involving a
disposition for value; (b) distributions of shares of Common Stock to partners,
members or shareholders of the undersigned; (c) dispositions to any trust,
family limited partnership or family limited liability company for the direct or
indirect benefit of, or controlled by, the undersigned or the immediate family
of the undersigned not involving a disposition for value; (d) will or intestacy
to the undersigned's immediate family; or (e) the prior written consent of XX
Xxxxx, on behalf of the several underwriters; provided, that, in each case, any
transferee, distributee or donee thereof agrees in writing to be bound by the
terms of this Agreement. For purposes of this Agreement, "immediate family"
shall mean any relationship by blood, marriage or adoption, not more remote than
first cousin.
In addition to the preceding paragraph, the lock-up restrictions
described in this Agreement shall not apply to open-market non-derivative sales
in the public market pursuant to brokers' transactions of any shares of Common
Stock acquired by the undersigned after the date of the final prospectus or
shares purchased in connection with the Public Offering; provided, that, any
shares acquired pursuant to a directed share program shall be subject to the
lock-up restrictions, if any, imposed by such program; and, provided, further,
if the seller is a Reporting Person, as defined in and subject to Section 16(a)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), any
sales made in accordance with this paragraph shall not require such person to,
and such person shall not voluntarily, file a report of such transaction under
the Exchange Act, and if for some reason a proposed sale under this paragraph
would require the undersigned to file a report of such transaction under the
Exchange Act, then the undersigned shall not make such sale.
In addition, the undersigned hereby waives, from the date hereof until
the expiration of the 180-day period following the date of the Company's final
prospectus, any and all rights, to request or demand registration pursuant to
the Securities Act of any shares of Common Stock that are registered in the name
of the undersigned or that are Beneficially Owned Shares. In order to enable the
aforesaid covenants to be enforced, the undersigned hereby consents to the
placing of legends and/or stop-transfer orders with the transfer agent of the
Common Stock with respect to any shares of Common Stock or Beneficially Owned
Shares.
It is agreed and understood that the obligations of the parties under
this Agreement shall lapse and become null and void if the Public Offering shall
not have occurred on or prior to April 30, 2005.
By: ______________________________________
(signature)
Print Name:___________________________
Print Title:__________________________
