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EXHIBIT 1.1
W&C DRAFT OF 3/12/97
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_____________ SHARES
VISION SOLUTIONS, INC.
COMMON STOCK
______________________________
UNDERWRITING AGREEMENT
SELECTED DEALER AGREEMENT
______________________________
_________________, 1997
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_______________ SHARES
VISION SOLUTIONS, INC.
COMMON STOCK
___________________________
UNDERWRITING AGREEMENT
___________________________
______________, 1997
XXXXX & COMPANY INCORPORATED
XXXXX & COMPANY
As Representatives of the Several
Underwriters
c/o Allen & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
VISION SOLUTIONS, INC., a Delaware corporation (the
"Company"), and the selling stockholders, __________, (the "Selling
Stockholders") hereby confirm their agreement with the several Underwriters
named in schedule A hereto (the "Underwriters"), for which you are acting as
representatives (the "Representatives"), as follows:
1. DESCRIPTION OF SECURITIES. The Company has
authorized by appropriate corporate action and proposes to issue and sell to
the Underwriters up to ________ shares of its Common Stock, $.001 par value, as
further described in Section 3 hereof. The shares of Common Stock to be sold
to the Underwriters by the Company are herein referred to as the "Purchased
Shares". In addition, as further described in Section 3 hereof, the Selling
Stockholders are granting to the Underwriters an option to purchase up to
______ additional shares of the Company's Common Stock (the "Option Shares").
The Purchased Shares and Option Shares are herein collectively referred to as
the "Shares".
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2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
COMPANY.
(a) The Company represents and warrants to and
agrees with each Underwriter that:
(i) A registration statement on Form S-1 (File No.
333-________) with respect to the Shares, including a preliminary form of
prospectus, copies of which have heretofore been delivered to you, has been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the "Commission")
under the Act, and has been filed with the Commission under the Act; such
amendment or amendments to such registration statement, copies of which have
heretofore been delivered to you, as may have been made prior to the date of
this Agreement have been so prepared and filed; and the Company has so prepared
and proposes so to file in a timely manner after the effective date of such
registration statement the final form of prospectus. Such registration
statement (including all exhibits thereto), as finally amended and revised as
of the time the Underwriters first offer the Shares for sale to the public
together with information, if any, which is permitted to be, and is,
subsequently filed pursuant to Rule 430A of the Rules and Regulations, is
herein referred to as the "Registration Statement". Such prospectus in the
form filed pursuant to Rule 424(b) of the Rules and Regulations, or, if no
final prospectus is filed with the Commission pursuant to Rule 424(b), in such
form as such final prospectus is included in the Registration Statement, is
herein referred to as the "Prospectus". Each preliminary form of prospectus is
herein referred to as a "Preliminary Prospectus".
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. At the time of filing of
each Preliminary Prospectus, such prospectus did not include 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.
When the Registration Statement becomes effective and at all times subsequent
thereto up to and at each Closing Date (hereinafter defined) (i) the
Registration Statement and Prospectus and any amendments or supplements thereto
will contain as of their respective dates all material statements and
information which are required to be included therein in accordance with the
Act and Rules and Regulations and will in all material respects conform to the
requirements of the Act and the Rules and Regulations, and (ii) neither the
Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, will include as of their respective dates 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
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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 in
reliance upon, and in conformity with, written information furnished to the
Company by any Underwriter through you specifically for use in the preparation
thereof.
(iii) Set forth on Schedule B hereto is the name of each
subsidiary of the Company which holds assets or conducts operations which are
material to the condition (financial or otherwise), results of operations,
business or prospects of the Company and each such subsidiary taken as a whole
and, unless otherwise indicated thereon, the Company holds all right, title and
interest in and to the entire equity interest in each such subsidiary. Except
as described in the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, neither
the Company, nor any entity which is either identified in the Prospectus as a
subsidiary of the Company or listed on Schedule B hereto (each individually a
"Subsidiary" and collectively the "Subsidiaries"), taken as a whole, has
incurred any direct or, to the best of the Company's knowledge, contingent
material liabilities or material obligations, or entered into any material
transactions or contracts not in the ordinary course of business, and there has
not been any change in its capital shares, options or warrants, nor any
material increase or decrease in the amount thereof outstanding or in any of
its long-term debt outstanding, except pursuant to the terms of the instruments
governing the same, or any material adverse change in the condition (financial
or otherwise), results of operations, business or prospects of the Company and
the Subsidiaries taken as a whole.
(iv) Except as set forth in the Prospectus, there is not
now pending or, to the knowledge of the Company, threatened, any action, suit
or proceeding to which the Company or any Subsidiary is a party before any
court or governmental agency or body which might result in any material adverse
change in the condition (financial or otherwise), results of operations,
business or prospects of the Company and the Subsidiaries taken as a whole, or
might materially and adversely affect the properties, assets or ability to do
business as contemplated in the Prospectus of the Company and the Subsidiaries
taken as a whole; and there are no contracts or documents required to be filed
as exhibits to the Registration Statement by the Act or by the Rules and
Regulations which have not been filed as exhibits to the Registration
Statement.
(v) This Agreement has been duly authorized, executed and
delivered on behalf of the Company and constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms, except (1)
that such enforcement may be subject
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to bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights, (2) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought and (3) as rights to indemnity or
contribution hereunder may be limited by federal or state securities laws; the
execution, delivery and performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a breach or violation
of any term or provision of, or constitute a default under, any currently
existing statute, any indenture, mortgage, deed of trust, note agreement or
other agreement or instrument to which the Company or any Subsidiary is a party
or by which it or its property is bound, the charter or by-laws of the Company
or any Subsidiary or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or over their properties;
no consent, approval, authorization or order of any court or governmental
agency or body is required for the consummation by the Company of the
transactions on its part herein contemplated, except such as may be required
under the Act or as may be required under state or other securities or blue sky
laws in connection with the purchase and distribution of the Shares by the
Underwriters; and neither the Company nor any of the Subsidiaries is now in
default, and no event has occurred which with the giving of notice or lapse of
time or both would be a default, under any contract, agreement, indenture,
mortgage or other undertaking to which such entity is a party and which is
material to the condition (financial or otherwise), results of operations,
business or prospects of the Company and the Subsidiaries taken as a whole.
(vi) Each of the Company and the Subsidiaries has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full power and
authority, corporate or otherwise, to own its properties and conduct is
business as described and contemplated in the Registration Statement, and is
duly qualified to do business as a foreign corporation in good standing in all
other jurisdictions where its operations or ownership of property requires such
qualifications and where failure so to qualify would impair title to any
material properties of the Company which would have a material adverse effect
on the condition (financial or otherwise) results of operations, business or
prospects of the Company and the Subsidiaries, taken as a whole, or expose it
to liabilities material to the Company and the Subsidiaries taken as a whole in
such jurisdictions.
(vii) The Company has the authorized and outstanding
capital stock set forth in the Prospectus; the outstanding capital stock of the
Company conforms, and the Shares
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when issued and sold as herein contemplated will conform, in all material
respects, to all statements in relation thereto contained in the Registration
Statement and the Prospectus and all such stock has been duly authorized and
the outstanding capital stock has been and the Shares, when issued and
delivered against payment therefor as provided herein, will be validly issued,
fully-paid and nonassessable; except as stated in the Prospectus, the
stockholders of the Company have no preemptive rights with respect to the
Shares and there are no outstanding rights, options or warrants to acquire any
securities of the Company; to the extent that any rights, options or warrants
to acquire any securities of the Company are outstanding, except as otherwise
set forth in the Prospectus, the issuance of the Shares as described in the
Prospectus will not result in an adjustment of the exercise price or number of
shares issuable upon the exercise in respect of any such rights, options or
warrants; and, except as otherwise set forth in the Prospectus, the Company
owns (directly or indirectly) under valid title the respective outstanding
shares of capital stock of the Subsidiaries, free and clear of any material
liens, encumbrances or claims.
(viii) Except as otherwise set forth in the Prospectus, to
the best of its knowledge, each of the Company and the Subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
licenses, trademarks, service marks and trade names necessary to carry on its
business as presently conducted, and except as set forth in the Prospectus,
neither the Company nor any of the Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to any
patents, patent licenses, trademarks, service marks or trade names which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, could materially and adversely affect the condition (financial or
otherwise), earnings, affairs, business or prospects of the Company and the
Subsidiaries taken as a whole.
(ix) Except as stated in the Prospectus, the Company holds in
good standing or has applied for all licenses, permits, authorizations,
franchises, consents and orders of all federal, state, local, and foreign
governmental bodies necessary to carry on its business as reflected or
contemplated in the Prospectus; except as stated in the Prospectus the Company
has good and marketable title to all personal property owned by it, in each
case free and clear of all liens, encumbrances and defects with such exceptions
as are not material to the Company and the Subsidiaries taken as a whole; and
the real property and personal property referred to in the Prospectus as held
under lease by the Company is held by it under valid, subsisting and
enforceable leases with only such exceptions as in the aggregate are not
material and do not materially interfere with the conduct of the business of
the Company and the Subsidiaries taken as a whole as contemplated by the
Prospectus.
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(x) To the best of its knowledge, the Company is
conducting and proposes to conduct its business so as to comply in all material
respects with all applicable federal, state, local and foreign governmental
statutes, rules and regulations; and except as set forth in the Prospectus,
neither the Company nor any Subsidiary is charged with, or, to the best of the
knowledge of the Company, is under investigation with respect to, any violation
of any of such statutes, rules or regulations or is the subject of any pending
or threatened proceeding by an governmental body or regulatory authority
relating to any such violation.
(xi) The Company and each of the Subsidiaries are insured
by insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the business in which
they are engaged; and neither the Company nor any of the Subsidiaries has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the business or financial condition
of the Company and the Subsidiaries taken as a whole, except as described or
contemplated in the Prospectus.
(xii) Deloitte & Touche LLP, which has examined and
expressed its opinion on certain of the financial statements of the Company
filed with the Commission as a part of the Registration Statement, are, to the
Company's best knowledge, independent accountants with respect to the Company
within the meaning of the Act and the Rules and Regulations; the financial
statements, together with the related notes, forming part of the Registration
Statement and Prospectus fairly present the financial condition of the Company
and its results of operations as of the dates and for the periods described in
such opinion in the Prospectus; and such financial statements have been
prepared in accordance with the requirements of the Commission.
(xiii) The Company and each of the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that transactions are executed in accordance with management's
general or specific authorizations and are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles.
(xiv) Except as stated in the Prospectus, the Company knows
of no outstanding claims for services, either in the nature of a finder's fee
or origination fee, with respect to the transactions contemplated hereby, and
the Company agrees to indemnify and hold the Underwriters harmless from any
such claim
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for any such services of such nature arising from the act of any person other
than any Underwriter.
(xv) Except for the Selling Stockholders, no person holds
a right to require or participate in the registration under the Act of the
Common Stock of the Company to be effected by the Registration Statement, which
right has not been effectively waived by the holder thereof as of the date
hereof.
(xvi) The Company has obtained from each of its officers,
directors and holders of shares of, or options to purchase shares of, the
Company's Common Stock an executed agreement that, except as otherwise
specifically allowed in such agreement, they will not, without the prior
written consent of Xxxxx & Company Incorporated on behalf of the Underwriters,
sell, offer for sale, contract to sell or otherwise dispose of any shares of
the Company's Common Stock or any securities exercisable for or convertible
into its Common Stock for a period of 180 days from the date of the final
Prospectus.
(b) Each Selling Stockholder, severally and not
jointly, represents and warrants to, and agrees with, each Underwriter and the
Company that:
(i) All consents, approvals, authorizations, and orders
necessary for the execution and delivery by such Selling Stockholder of this
Agreement, and for the sale and delivery of the Option Shares to be sold by
such Selling Stockholder hereunder (other than, at the time of execution
hereof, (if the Registration Statement has not yet been declared effective by
the Commission) the issuance of the order of the Commission declaring the
Registration Statement effective and such authorizations, approvals or consents
as may be necessary from the NASD or under state or other securities or Blue
Sky laws) have been obtained. Such Selling Stockholder has full right, power
and authority to enter into this Agreement and to sell, assign, transfer, and
deliver the Option Shares to be sold by such Selling Stockholder hereunder.
This Agreement has been duly executed and delivered by such Selling Stockholder
and is a valid and binding agreement, enforceable in accordance with its terms,
except (1) that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights, (2) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought and (3) as rights to indemnity or contribution
hereunder may be limited by federal or state securities laws.
(ii) Neither the sale of Option Shares to be sold by such
Selling Stockholder hereunder, nor the execution, delivery, and performance of
this Agreement will result in a breach or
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violation of any material term or provision of, or constitute a default under,
any currently existing material and relevant statute, any material indenture,
mortgage, deed of trust, loan or note agreement, or other material agreement or
instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound, or any order, rule, or regulation of any court or
governmental agency or body having jurisdiction over such Selling Stockholder
or over any of such Selling Stockholder's properties.
(iii) Such Selling Stockholder has, and immediately prior to
the Closing Date such Selling Stockholder will have, valid and marketable title
to the Option Shares to be sold by such Selling Stockholder hereunder, free and
clear of all liens, encumbrances, equities, and claims (other than pursuant to
this Agreement and restrictions under applicable securities law). Upon
delivery of such Option Shares and payment therefor pursuant hereto, valid and
marketable title to such Option Shares, free and clear of all liens,
encumbrances, equities, and claims, will pass to the Underwriters.
(iv) Such Selling Stockholder has not taken and will not take
(directly or indirectly) any action which is designed to or which has
constituted or might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company in order to
facilitate the sale or resale of the Shares.
(v) Any statement or omission in the Registration
Statement, the Prospectus, or any post-effective amendment or supplement
thereto that is or was made in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder expressly for
use therein is true, complete and correct in all material respects and does not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make such statements, in
light of the circumstances under which they were made, not misleading.
(vi) Nothing has come to such Selling Stockholder's attention
to cause it to have reason to believe that the Company's representations and
warranties contained in this Agreement are not accurate in any material
respect.
(vii) Such Selling Stockholder has carefully read the
Registration Statement, the Prospectus, and this Agreement and that to its best
knowledge its representations, warranties, and other statements contained in
this Agreement are accurate in all material respects on the date hereof and
will be accurate in all material respects on and as of the First Closing Date
(as defined in Section 3 hereof) with the same effect as if made on the First
Closing Date, and such Selling Stockholder has performed all of
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its obligations and satisfied all conditions on its part to be performed or
satisfied at or prior to the First Closing Date.
3. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to
each Underwriter and each Underwriter agrees, severally and not jointly, to
purchase from the Company at a purchase price of $______ per Share, the
aggregate number of Shares set forth opposite the name of such Underwriter in
Schedule A hereto.
The Company will deliver the Purchased Shares to you for the
accounts of the several Underwriters at the office of Xxxxx & Company
Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, against payment of the
purchase price therefor by certified or official bank check or checks in New
York Clearing House funds, payable to the order of Vision Solutions, Inc., at
10:00 A.M., New York Time, on ____________________, 1997, or at such other time
and date not later than five full business days thereafter as you and the
Company may determine, such time and date of delivery and payment being herein
called the "First Closing Date". The certificates for the Purchased Shares to
be so delivered will be made available to you at such office for checking at
least one full business day prior to such Closing Date and will be in such
names and denominations as you may request not less than two full business days
prior to such Closing Date.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Selling Stockholder grant to the Underwriters an option to purchase up to
________ Option Shares at the same price per share as the Underwriters shall
pay for the Purchased Shares. The number of Option Shares to be contributed by
the Company and the Selling Stockholders to cover such over-allotments shall be
allocated among the Selling Stockholders and with the priority as set forth in
Schedule C to this Agreement. Such option may be exercised only to cover
over-allotments arising in connection with the sale of Purchased Shares by the
Underwriters, such exercise to be upon written notice by you to the Company
within 30 days of the date hereof setting forth the number of Option Shares as
to which the Underwriters are exercising the option, and with the priority as
set forth in Schedule C to this Agreement, the denominations and names in which
certificates for such Shares should be registered and the time and place at
which such certificates are to be delivered. Such time and place (unless such
time is the First Closing Date), herein referred to as the "Second Closing
Date", shall be determined by you but shall not be earlier than the First
Closing Date, nor earlier than three full business days or later than ten
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full business days after the exercise of such option. The Selling Shareholders
will deliver Option Shares to you for the accounts of the several Underwriters
against payment of the purchase price therefor by certified or official bank
check or checks in New York Clearing House funds payable to the order of the
Selling Stockholders, as the case may be. The number of Option Shares to be
purchased by each Underwriter shall be in the same proportion to the aggregate
number of Option Shares purchased as the number of Purchased Shares set forth
opposite the name of such Underwriter in Schedule A hereto bears to
____________.
It is understood that you, individually and not as the
Representatives of the several Underwriters, may (but shall not be obligated
to) make payment on behalf of any Underwriter or Underwriters for Shares to be
purchased by such Underwriter or Underwriters. Any such payment by you shall
not relieve any such Underwriter or Underwriters of any of its or their
obligations hereunder.
After the Registration Statement becomes effective, the
several Underwriters propose to offer the Shares to the public as set forth in
the Prospectus.
4. COVENANTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters that:
(a) The Company will use its best efforts to
cause the Registration Statement and any subsequent amendment
thereto to become effective as promptly as possible; it will
notify you, promptly after it shall receive notice thereof, of
the time when the Registration Statement or any subsequent
amendment to the Registration Statement has become effective
or any supplement to the Prospectus has been filed; it will
notify you promptly of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; it will prepare and
file with the Commission, promptly upon your request, any
amendments or supplements to the Registration Statement or
Prospectus which, in your reasonable opinion, may be necessary
or advisable in connection with the distribution of the Shares
by the Underwriters; it will promptly prepare and file with
the Commission, and promptly notify you of the filing of, any
amendments or supplements to the Registration Statement or
Prospectus which may be necessary to correct any statements or
omissions, if, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, any event
shall have occurred as a result of which the Prospectus or any
other prospectus relating to the Shares as then in
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effect would include an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein not misleading; in case any Underwriter is
required to deliver a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act in connection with
sales of the Shares, it will prepare promptly upon request,
but at the expense of such Underwriter, such amendment or
amendments to the Registration Statement and such prospectus
or prospectuses as may be necessary to permit compliance with
the requirements of Section 10(a)(3) of the Act; and it will
file no amendment or supplement to the Registration Statement
or Prospectus that shall not previously have been submitted to
you in writing a reasonable time prior to the proposed filing
thereof with an opportunity to review and comment on such
amendment or supplement.
(b) The Company will advise you, promptly after
it shall receive notice or obtain knowledge thereof, of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
suspending trading in the Shares or other of the Company's
securities or of the initiation or threat of any proceeding
for that purpose; and it will use promptly its best efforts to
prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(c) The Company will use its best efforts to
qualify the Shares for sale under the blue sky or securities
laws of such jurisdictions as you may reasonably designate and
to continue such qualifications in effect for so long as may
be required for purposes of the distribution of the Shares,
except that the Company shall not be required in connection
therewith or as a condition thereof to qualify as a foreign
corporation or to execute a general consent to service of
process in any state.
(d) The Company will furnish to you, as soon as
available, copies of the Registration Statement (two of which
will be signed and will include all exhibits), each
Preliminary Prospectus, the Prospectus, and any amendments or
supplements to such documents, including any prospectus
prepared to permit compliance with Section 10(a)(3) of the
Act, all in such quantities as you may from time to time
reasonably request.
(e) The Company will make generally available to
its securityholders as soon as practicable, a financial
statement (which will be in reasonable detail but need
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not be audited) covering a 12-month period beginning after the
effective date of the Registration Statement which shall
satisfy the provisions of Section 11(a) of the Act.
(f) The Company agrees, during each fiscal year
for a period of five years from the date hereof, to furnish to
its stockholders as promptly as may be practicable an annual
report (including financial statements audited by independent
public accountants) and to furnish quarterly financial
statements (which need not be audited and which may be
condensed or summarized) for each of the first three quarters
of each fiscal year, statements of operations and surplus of
the Company for such quarter in reasonable detail and
certified by the Company's principal financial or accounting
officer; (i) as soon as practicable after the end of each
fiscal year, financial statements of the Company as at the end
of such fiscal year, including statements of operations,
retained earnings and changes in financial position of the
Company for such fiscal year, all in reasonable detail and
accompanied by a copy of the report thereon of independent
public accountants or the Company's annual report on Form
10-K; and (ii) as soon as they are available, copies of all
reports and financial statements furnished to or filed with
the Commission. During such period, if and so long as the
Company shall have active subsidiaries, the foregoing
financial statements shall be on a combined or consolidated
basis to the extent that the accounts of the Company and its
subsidiaries are combined or consolidated.
(g) The Company covenants and agrees with the
several Underwriters that the Company will pay or cause to be
paid the following: (i) the fees, disbursements, and expenses
of the Company's counsel and accountants in connection with
the registration of the Shares under the Act; (ii) all other
expenses in connection with the preparation, printing, and
filing of the Registration Statement, each Preliminary
Prospectus, and the Prospectus and amendments and supplements
thereto, and the mailing and delivering of copies thereof to
the Underwriters and dealers; (iii) the cost of printing or
duplicating this Agreement, the Selected Dealer Agreement, the
Blue Sky Memorandum, and any other documents in connection
with the offering, purchase, sale and delivery of the Shares;
(iv) all costs and expenses in connection with the issuance
and delivery of the Shares hereunder to the Underwriters,
including related transfer taxes, if any; (v) all expenses in
connection with the qualification of the Shares for
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offering and sale under the securities laws of various
jurisdictions, including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky Survey; (vi)
the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vii) the costs of preparing
stock certificates; (viii) the cost and charges of any
transfer agent or registrar; and (ix) all other costs and
expenses of the Company incident to the performance of its
obligations hereunder which are not otherwise specifically
provided for in this Section 4. The Company shall reimburse
the Underwriters, upon request from time to time, for their
reasonable itemized out-of-pocket expenses up to a maximum of
$150,000, including their legal fees and disbursements and
travel, roadshow and syndicate expenses, upon the presentation
of reasonable documentation thereof. If the Underwriters are
unable or unwilling to proceed with the offering on the terms
and conditions set forth in this Agreement for any reason
(except as set forth in the proviso below), the Underwriters
shall bear all of their own out-of- pocket expenses, including
legal fees and disbursements and travel, roadshow and
syndicate expenses; provided, however, that if the
Underwriters' decision not to proceed with the offering on the
terms and conditions set forth in this Agreement is based upon
any of the reasons specified in Section 10(b)(i), (excluding
termination for reasons that are beyond the reasonable control
of the Company) the Company shall be required to reimburse the
Underwriters for their out-of-pocket expenses as specified in
the preceding sentence.
(h) The Company agrees that it will not, without
the prior written consent of Xxxxx & Company Incorporated on
behalf of the Underwriters, sell, offer for sale, contract to
sell or otherwise dispose of any shares of its Common Stock or
any securities exercisable for or convertible into shares of
its Common Stock, other than (i) shares issuable pursuant to
currently outstanding rights, options and warrants, for a
period of 180 days after the date of the final Prospectus;
(ii) the grant of options or shares under the Company's 1996
Incentive Stock Option, Nonqualified Stock Option and
Restricted Stock Purchase Plan or Employee Stock Purchase
Plan; or (iii) in connection with the acquisition of assets,
products or businesses, provided that in the case of this
clause (iii) none of such shares shall be publicly resaleable
during such 180 day period. In addition, the Company also
agrees
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to obtain the written agreement of each officer, director and
holder of shares of, or options to purchase shares of, the
Company's Common Stock that such person will not, without such
prior written consent, sell, offer for sale, contract to sell
or otherwise dispose of any of such Common Stock held by such
holder for a period of 180 days after the date of the final
Prospectus, except as may otherwise be specifically allowed in
the agreements referenced in paragraph 2(a)(xvi) above.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase and pay for the Purchased
Shares on the First Closing Date and the Option Shares on the Second Closing
Date, as provided herein shall be subject to the accuracy, as of the date
hereof and such Closing Date (as if made on and as of such Closing Date), of
the representations and warranties of the Company and the Selling Stockholders
herein, to the performance by the Company and the Selling Stockholders of their
obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 P.M., New York City Time, on the
date of this Agreement, or such later date as shall be
consented to in writing by you; if required, the Prospectus
and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period
required by Rule 424(b) under the Act; and no stop order
suspending the effectiveness thereof shall have been issued
and no proceedings for that purpose shall have been initiated
or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the
Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall
have been complied with to your satisfaction.
(b) Prior to such Closing Date, except as
contemplated in the Prospectus, there shall not have been any
change in the capital shares, nor the issuance of any material
rights, options, or warrants to purchase any capital shares,
nor any material increase or decrease in any long-term debt of
the Company or any of the Subsidiaries or any material adverse
change in the condition (financial or otherwise), results of
operations, business or prospects of the Company or any of the
Subsidiaries which in your reasonable judgment renders it
inadvisable to proceed with the offering and sale of the
Shares.
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(c) You shall have received the opinion of
Stradling, Yocca, Xxxxxxx & Xxxxx, counsel for the Company, in
form and substance satisfactory to you and dated such Closing
Date, to the effect that:
(i) each of the Company and its
Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation
with full corporate power and authority to own its
properties and to conduct its business as described
in the Registration Statement and is duly qualified
to do business as a foreign corporation in each state
or jurisdiction where its operations and the
ownership of its properties requires such
qualification, except with respect to qualification
as a foreign corporation in such jurisdictions in
which the failure to so qualify has not had and will
not have a material adverse effect on the business of
the Company and the Subsidiaries taken as a whole;
(ii) the Company has authorized capital
stock as set forth in the Prospectus; all shares of
Common Stock, including the Shares, conform as to
legal matters in all material respects to the
appropriate descriptions thereof under the heading
"Description of Capital Stock" in the Prospectus; all
outstanding shares of Company capital stock have been
duly authorized and are validly issued, fully paid
and non-assessable and to the best of such counsel's
knowledge, fully paid; and the issuance of the Shares
has been duly authorized and, when issued and
delivered in accordance with this Agreement, the
Shares will be validly issued, fully paid and
non-assessable; and, to the best of such Counsel's
knowledge, except as described in the Prospectus, the
issuance of the Shares as described in the Prospectus
will not result in any adjustment of the exercise
price or number of shares issuable upon exercise in
respect of any outstanding options or warrants of the
Company; and, except as otherwise set forth in the
Registration Statement, the Company owns (directly or
indirectly of record, and to the best of such
counsel's knowledge, beneficially) all of the
respective outstanding shares of capital stock of
each of the Subsidiaries, to the best of the
knowledge of such counsel, free and clear of any
material liens, encumbrances or claims;
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(iii) this Agreement has been duly
authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the
Company, enforceable in accordance with its terms,
except that (1) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect
relating to creditors' rights, (2) the remedy of
specific performance and injunctive and other forms
of equitable relief may be subject to equitable
defenses and to the discretion of the court before
which any proceeding therefor may be brought, and (3)
rights to indemnity or contribution hereunder may be
limited by federal or state securities laws; the sale
of the Shares under this Agreement and the
consummation of the transactions herein contemplated
do not result in a breach or violation of any terms
or provisions of, or constitute a default under, any
presently existing statute, or to the best of such
counsel's knowledge, any indenture, mortgage, deed of
trust, note agreement or other agreement or
instrument known to such counsel to which the Company
is a party or by which it or its properties are bound
or affected, or to which any of the material property
or assets of the Company or the Subsidiaries is
subject, the Company's certificate of incorporation
or by-laws, or, to the best of such counsel's
knowledge, any order, rule or regulation of any court
or governmental agency or body having jurisdiction
over the Company or the Subsidiary or over their
respective properties;
(iv) no consent, approval, authorization
or order of any court or governmental agency or body
is required for the consummation by the Company of
the transactions contemplated by this Agreement,
except such as may be required under the Act or as
may be required under state securities or blue sky
laws in connection with the purchase and distribution
of the Shares by the Underwriters;
(v) the Registration Statement has
become effective under the Act and to the best of
such counsel's knowledge no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the
Act;
(vi) except as stated in the Prospectus,
to the best of such counsel's knowledge, the Company
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and the Subsidiaries hold all material licenses,
permits, authorizations, franchises, consents and
orders, in each case valid and in good standing, of
Federal, State or local, and foreign governmental
bodies necessary to carry on their respective
businesses as reflected in the Registration
Statement;
(vii) the agreements or documents to which
the Company or the Subsidiaries are a party which are
summarized under the headings "Management -
Employment Agreements," "Certain Transactions,"
"Description of Capital Stock - Registration Rights"
and "_____________" in the Prospectus conform in all
material respects to such summaries;
(viii) to the best of such counsel's
knowledge, there are no legal or governmental
proceedings pending or threatened to which the
Company or any Subsidiary is a party or to which any
properties of the Company or the Subsidiaries are
subject which is required to be described in the
Registration Statement or the Prospectus and is not
so described;
(ix) the Registration Statement and the
Prospectus, and each amendment or supplement thereto,
as of their respective effective or issue dates,
comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations
(except that such counsel need express no opinion as
to the financial statements, notes to financial
statements, related schedules or other financial or
statistical data contained in the Registration
Statement or the Prospectus);
(x) to the best of such counsel's knowledge, all
contracts and documents pertaining to the Company
required to be filed as Exhibits to the Registration
Statement have been filed as required or have been
appropriately incorporated by reference and all
contracts and documents required to be described in
the Prospectus have been accurately described therein
in all material respects;
(xi) Such counsel shall also state that it has
participated in conferences with officers and other
representatives of the Company, representatives of
the independent public accountants for the Company
and the
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representatives of the Underwriters, at which the
contents of the Registration Statement and the
Prospectus and related matters were discussed and,
although such counsel is not passing upon and does
not assume any responsibility for the accuracy,
completeness or fairness of the statements contained
in the Registration Statement and the Prospectus, on
the basis of the foregoing (relying as to materiality
to a large extent upon the opinions of officers and
other representatives of the Company), no facts have
come to such counsel's attention which lead such
counsel to believe that the Registration Statement
(except with respect to the financial statements and
schedules thereto and other financial or statistical
data, as to which such counsel need not make any
statement) at the time it became effective or at the
Closing Date contained any untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, or that the
Prospectus (except with respect to the financial
statements and schedules thereto and other financial
or other statistical data, as to which such counsel
need not make any statement) on the date thereof or
on the Closing Date contained any untrue statement of
a material fact or omitted to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances in which they were
made, not misleading.
In rendering the foregoing opinions, such counsel may
rely as to factual matters on certificates of officers and
representatives of the Company or any Subsidiary and of public
officials, and will not be required to independently verify
the accuracy or completeness of information or documents
furnished to it in respect to the Registration Statement or
the Prospectus. To the extent that such counsel's opinion
relates to the laws of jurisdictions other than California and
Delaware, such counsel shall be permitted to rely on the
opinion of local counsel reasonably satisfactory to counsel
for the several Underwriters.
(d) You shall have received from _______________,
counsel to the Selling Stockholders, an opinion, dated such
Closing Date, in form and substance satisfactory to you, with
respect to legal matters relating to this Agreement and the
transactions contemplated hereby as you may reasonably
require.
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(e) [You shall have received from
_______________, patent counsel to the Company, an opinion,
dated such Closing Date, in form and substance satisfactory to
you, to the effect that the statements in the Prospectus under
the captions "_____________", insofar as they pertain to legal
matters, fairly present in all material respects the
information presented therein.]
(f) You shall have received from Xxxxxx &
Carnelutti, A Professional Corporation, counsel for the
several Underwriters, an opinion or opinions, dated such
Closing Date, in form and substance satisfactory to you, with
respect to the sufficiency of all such corporate proceedings
and other legal matters relating to this Agreement and the
transactions contemplated hereby as you may reasonably
require, and the Company shall have furnished to such counsel
such documents as they may have requested for the purpose of
enabling them to pass upon such matters.
(g) You shall have received, at the time of
execution of this Agreement and on such Closing Date from
Deloitte & Touche LLP, independent public accountants, a
letter or letters, dated the date of delivery thereof,
substantially in the form and substance heretofore approved by
you.
(h) You shall have received a certificate, dated
such Closing Date, of each of the President and Chief
Executive Officer and the Chief Financial Officer of the
Company, delivered on behalf of the Company, to the effect
that:
(i) the representations and warranties
of the Company in this Agreement are true and correct
as if made on and as of such Closing Date; and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing
Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have been
instituted or, to their knowledge, are contemplated
by the Commission; and
(iii) except as contemplated in the
Prospectus, neither the Company nor any Subsidiary
taken as a whole has incurred any direct or, to the
best of the Company's knowledge, contingent
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material liabilities or obligations since the date of
the financial statements included in the Prospectus,
other than liabilities incurred in the ordinary course
of business, or entered into any material transactions
or contracts not in the ordinary course of business,
and there has not been any change in its capital
shares, nor the issuance of any material rights,
options, or warrants to purchase any capital shares,
nor any material increase or decrease in any thereof
or in any long-term debt or any material adverse
change in the condition (financial or otherwise)
results of operations, business or prospects of the
Company and the Subsidiaries taken as a whole.
(i) The Company and the Selling Stockholders
shall have furnished to you such certificates, in addition to
those specifically mentioned herein, as you may have
reasonably requested, as to the accuracy and completeness at
such Closing Date of any statement in the Registration
Statement or Prospectus, as to the accuracy at such Closing
Date of the representations and warranties of the Company
herein, as to the performance by the Company of its
obligations hereunder, and as to the fulfillment of the
conditions concurrent and precedent to the obligations of the
Underwriters hereunder.
(j) The Company shall have furnished to you the
agreements described in Section 2(a)(xvi) of this Agreement.
6. INDEMNIFICATION. (a) The Company and the
Selling Stockholders, severally and not jointly, will indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating or defending
against any such loss, claim, damage, liability or action; provided, however,
that neither the Company
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nor the Selling Stockholders will be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, such Preliminary Prospectus, the Prospectus
or such amendment or such supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through you
specifically for use therein; and provided further, that the foregoing
indemnity with respect to Preliminary Prospectuses shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) if such untrue statement or omission or alleged untrue statement
or omission made in any Preliminary Prospectus is eliminated or remedied in the
Prospectus and a copy of the Prospectus has not been furnished to the person
asserting any such losses, claims, damages, or liabilities at or prior to the
written confirmation of the sale of such Shares to such person; and provided
further, that no indemnification pursuant to this Section 6(a) shall be sought
from the Selling Stockholders unless the Company shall, after reasonable
efforts by the Underwriters to secure indemnification from the Company, have
failed to satisfy its indemnification obligations under this Section 6(a), and
in no event shall the liability of any Selling Stockholder under this Section
6(a), if any, exceed the gross proceeds (minus the amount of the underwriting
discount paid thereon) received by such Selling Stockholders from the sale of
his Option Shares pursuant to this Agreement. Such indemnity obligation will
be in addition to any liability which the Company and the Selling Stockholders
may otherwise have. The indemnity agreement of the Company and the Selling
Stockholders contained in this paragraph (a) and the representations and
warranties of the Company and the Selling Stockholders contained in Section 2
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any indemnified party and shall survive
the delivery of and payment for the Shares.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Act and the Selling Stockholders, against any
losses, claims, damages or liabilities, joint or several, to which the Company
or any such director, officer or controlling person, or the Selling
Stockholders may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be
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stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you specifically for use therein; and will reimburse any
legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person, or the Selling Stockholders in
connection with investigating or defending against any such loss, claim,
damage, liability or action. Such indemnity obligation will be in addition to
any liability which such Underwriter may otherwise have. The indemnity
agreement of each Underwriter contained in this paragraph (b) shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any indemnified party and shall survive the delivery of and
payment for the Shares.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section, notify the indemnifying party of the commencement thereof.
Indemnification shall not be available to any party who shall fail so to give
notice, if the party to whom notice was required to be given was unaware of the
action, suit, investigation, inquiry or proceeding to which the notice would
have related, to the extent that such party was prejudiced by the failure to
give notice; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel chosen by
such indemnifying party which is reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation;
provided, however, that (i) if the indemnified party reasonably determines that
there may be a conflict between the positions of the indemnifying party and of
the indemnified party in conducting the defense of such action, suit,
investigation, inquiry or proceeding, then counsel for the indemnified party
shall be entitled to conduct the defense to the extent reasonably determined by
such counsel to be necessary to protect the interests of the indemnified party
and (ii) in any event, the indemnified party shall be entitled to
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have counsel chosen by such indemnified party participate in, but not conduct,
the defense at the sole expense of the indemnified party. No indemnifying
party shall be liable to any indemnified party in respect to any settlement
effected without its prior written consent, which consent shall not be
unreasonably withheld. In addition, the indemnifying party will not, without
the prior written consent of an indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder if such indemnified party is a party to such claim, action or suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all liability arising out
of such claim, action, suit or proceeding.
7. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6(a) or 6(b)
hereof is for any reason, other than the first proviso to Section 6(a), held to
be unavailable, the Company, the Selling Stockholders and the Underwriters
shall contribute to the aggregate losses, claims, damages and liabilities of
the nature contemplated by such indemnification provisions (including any
investigation, legal and other expenses incurred in connection with, any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received by the Company and the Selling
Stockholders from persons other than the Underwriters, such as persons who
control the Company within the meaning of Section 15 of the Act, officers of
the Company who signed the Registration Statement and directors of the Company,
who may also be liable for contribution) to which the Company, the Selling
Stockholders and one or more of the Underwriters may be subject, in such
proportions so that the Underwriters are responsible for that portion in each
case represented by the percentage that the respective underwriting discounts
appearing on the cover page of the Prospectus bear to the public offering price
of the Shares, and the Company and the Selling Stockholders are responsible for
the remaining portion in such proportion as the Shares offered by the Company
and the Selling Stockholders bear to the total number of Shares; provided,
however, that (i) except as may be provided in its Master Agreement Among
Underwriters provided to Xxxxx & Company Incorporated, in no case shall any
Underwriter be responsible for any amount in excess of the underwriting
discount applicable to the Shares purchased by such Underwriter hereunder and
(ii) the liability of each Selling Stockholder under this Section 7, if any,
shall not exceed the gross proceeds (minus the amount of the underwriting
discount paid thereon) received by such Selling Stockholder from the sale of
his Option Shares pursuant to this Agreement, and (iii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For
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purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same right to contribution as the Company, subject
in each case to clauses (i) and (ii) of this Section 7. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 7,
notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this Section 7. No party shall
be liable for contribution with respect to any action or claim settled without
its consent, which consent shall not be unreasonably withheld.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company, the Selling
Stockholders and the Underwriters herein or in certificates delivered pursuant
hereto shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling
person, the Company, or any of its officers, directors, or controlling persons
or the Selling Stockholders, and shall survive delivery of the Shares to the
several Underwriters hereunder.
9. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or
Underwriters shall fail to take up and pay for the number of Shares to be
purchased by such Underwriter or Underwriters hereunder upon tender of such
Shares in accordance with the terms hereof, and if the aggregate number of
Shares which such defaulting Underwriter or Underwriters so agreed but failed
to purchase does not exceed 10% of the Shares, the remaining Underwriters shall
be obligated severally in proportion to their respective commitments hereunder
to take up and pay for the Shares of such defaulting Underwriter or
Underwriters. If one or more of the Underwriters shall fail or refuse (other
than for a reason sufficient to justify the termination of this Agreement) to
purchase on any Closing Date the aggregate number of Shares agreed to be
purchased by such Underwriter or Underwriters and the aggregate number of
Shares agreed to be purchased by such Underwriter or Underwriters shall exceed
10% of the aggregate number of Shares to be sold on any Closing Date hereunder
by the Company and the Selling Stockholders to the Underwriters, then the other
Underwriters shall have the right to purchase or procure one or more other
underwriters to purchase, in such proportions as they may agree upon and upon
the terms herein set
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forth, the Shares which such defaulting Underwriter or Underwriters agreed to
purchase, and this Agreement shall be carried out accordingly. If such other
Underwriters do not exercise such right within thirty-six hours after receiving
notice of any such default, which notice the Representatives shall have also
promptly delivered to the Company, then the Company shall have the right to
procure another party or parties reasonably satisfactory to the Representatives
to purchase or agree to purchase such Shares on the terms herein set forth. If
the Company is unable to procure another such party, the Company may notify the
Representatives that the non-defaulting Underwriters are, by the giving of such
notice, released from their obligations to purchase such number of Shares being
sold hereunder by the Company and the Selling Stockholders as are indicated in
such notice as, when subtracted from the total number of Shares originally
agreed to be purchased by all of the Underwriters hereunder, shall leave a
reduced number of Shares to be purchased by the non-defaulting Underwriters not
in excess of 110% of the aggregate number of Shares originally contracted to be
purchased hereunder by the non-defaulting Underwriters, and each of them, in
which event such non-defaulting Underwriters shall purchase such reduced number
of Shares. In any such case, either the Representatives or the Company shall
have the right to postpone any Closing Date for a period of not more than seven
business days in order that necessary changes and arrangements may be effected
by the Representatives and the Company. If neither the non-defaulting
Underwriters nor the Company shall make arrangements within the period stated
for the purchase of the Shares which such defaulting Underwriter or
Underwriters agreed to purchase, including such arrangements for the purchase
of a reduced number of Shares as are provided for in this Section 9, then this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriters to the Company or the Selling Stockholders and without liability
on the part of the Company or the Selling Stockholders to the Underwriters.
In the event of any termination of this Agreement pursuant to
the preceding paragraph of this Section, neither the Company nor the Selling
Stockholders shall be under any liability to any Underwriter (except as
provided in Section 4(g) and 6 hereof) nor shall any Underwriter (other than an
Underwriter who shall have failed, otherwise than for some reason permitted
under this Agreement, to purchase the number of Shares to be purchased by such
Underwriter hereunder, which Underwriter shall remain liable to the Company,
the Selling Stockholders and the other Underwriters for damages resulting from
such default) be under any liability to the Company or the Selling Stockholders
(except as provided in Section 6 hereof).
The term "Underwriter" in this Agreement shall include any
person substituted for an Underwriter under this Section 9.
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10. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION. (a)
This Agreement shall become effective at such time after the declaration by the
Commission of the effectiveness of the Registration Statement as you in your
discretion shall first release the Shares for sale to the public. For the
purposes of this Section the Shares shall be deemed to have been released for
sale to the public upon release by you for publication of a newspaper
advertisement relating to the Shares or upon release by you of letters or
telegrams offering the Shares for sale to securities dealers, whichever shall
first occur. By giving notice as hereinafter specified before the time this
Agreement becomes effective, you, as Representatives of the several
Underwriters, or the Company may prevent this Agreement from becoming effective
without liability on the part of the Company or the Selling Stockholders to any
Underwriter or of any Underwriter to the Company or the Selling Stockholders,
other than as provided in Sections 4(g) and 6 hereof.
(b) You, as Representatives of the several Underwriters,
shall have the right to terminate this Agreement by giving notice as
hereinafter specified at any time at or prior to the First Closing Date if (i)
either the Company or the Selling Stockholders shall have failed, refused or
been unable, at or prior to the First Closing Date, to perform any material
agreement on its part to be performed, or because any other material condition
of the Underwriters' obligations hereunder required to be fulfilled by the
Company is not fulfilled; (ii) trading on the New York Stock Exchange shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, on
the New York Stock Exchange by the New York Stock Exchange or by order of the
Commission or any other governmental authority having jurisdiction, since the
execution of this Agreement; (iii) a banking moratorium shall have been
declared by Federal or New York authorities since the execution of this
Agreement; or (iv) an outbreak of major hostilities or other national calamity
shall have occurred. Any such termination shall be without liability on the
part of the Company or the Selling Stockholders to any Underwriter or of any
Underwriter to the Company or the Selling Stockholders other than as provided
in Sections 4(g) and 6 hereof.
(c) If you elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company and the Selling Stockholders shall be notified promptly by you by
telephone or telegram, confirmed by letter. If the Company shall elect to
prevent this Agreement from becoming effective, you shall be notified promptly
by the Company by telephone or telegram, confirmed by letter.
11. NOTICES. All notices or communications hereunder, except
as herein otherwise specifically provided, shall be in
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writing and if sent to you shall be mailed, delivered or telecopied and
confirmed to you c/o Allen & Company Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, with copy to Xxxxxx & Carnelutti, a Professional Corporation,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq.,
or if sent to the Company shall be mailed, delivered or telecopied and
confirmed to the Company at 0000 Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000, with a copy to Stradling, Yocca, Xxxxxxx & Xxxxx, 000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX 00000, Attention: X.X. Xxxxxx,
Esq., or if sent to the Selling Stockholders shall be mailed, delivered or
telecopied and confirmed to _________________________. Notice to any
Underwriter pursuant to Section 6 shall be mailed, delivered or telecopied and
confirmed to such Underwriter's address as set forth in its Master Agreement
Among Underwriters furnished to Xxxxx & Company Incorporated.
12. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the several Underwriters and the Company, the Selling
Stockholders and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person or corporation, other than the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained; this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and said controlling persons and said
officers and directors, and for the benefit of no other person or corporation.
No purchaser of any of the Shares from any Underwriter shall be construed a
successor or assign merely by reason of such purchase.
In all dealings with the Company and the Selling Stockholders
under this Agreement, you shall be and are authorized to act on behalf of each
of the several Underwriters, and the Company and the Selling Stockholders shall
be entitled to act and rely upon any statement request, notice or agreement on
behalf of each of the several Underwriters if the same shall have been made or
given in writing by you.
13. APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made, and to be fully performed, therein.
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If the foregoing correctly sets forth the understanding
between the Company and the several Underwriters, please so indicate in the
space provided below for that purpose whereupon this letter shall constitute a
binding agreement between the Company and the several Underwriters.
Very truly yours,
VISION SOLUTIONS, INC.
By:___________________________
President
Accepted as of the date
first above written:
XXXXX & COMPANY INCORPORATED
XXXXX & COMPANY
By: Xxxxx & Company Incorporated
By: ______________________________
Vice President
On behalf of each of the several
Underwriters named in Schedule A hereto.
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SCHEDULE A
NUMBER
NAME AND ADDRESS OF UNDERWRITER OF SHARES
------------------------------- ---------
Xxxxx & Company Incorporated . . . . . . . . . . . . .
Xxxxx & Company .. . . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . .
=========
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SCHEDULE B
SUBSIDIARIES OF THE COMPANY
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_________ SHARES
VISION SOLUTIONS, INC.
COMMON STOCK
SELECTED DEALER AGREEMENT
_________________, 1997
Dear Sirs:
1. PURCHASE OF SECURITIES BY THE SEVERAL UNDERWRITERS. The several
Underwriters named in the enclosed Prospectus, on whose behalf we are acting as
Representatives, have severally agreed to purchase from Vision Solutions, Inc.
(the "Company") and __________ (the "Selling Stockholders") an offering of
___________ Shares of the Company's Common Stock (the "Shares"), as set forth
in the Prospectus and subject to the terms of the Underwriting Agreement
between the several Underwriters, the Company and the Selling Stockholders.
The Shares are described in the Prospectus, additional copies of which will be
supplied in reasonable quantities upon request to us.
2. OFFERING TO SELECTED DEALERS. One or more of the several
Underwriters acting through us are severally offering a portion of the Shares
to certain dealers ("Selected Dealers") as principals, subject to the terms and
conditions of their purchase, to the terms and conditions hereof, and to the
modification or cancellation of the offering without notice, at the public
offering price set forth in the Prospectus, less a concession not in excess of
$____ per Share. Shares purchased by the several Underwriters, and not sold to
the Selected Dealers as aforesaid, may be sold by the several Underwriters.
Any of the several Underwriters may be included among the Selected Dealers.
The offering of a portion of the Shares to Selected Dealers may be
made on the basis of reservations or allotments against subscription. We are
advising you by telegram of the method and terms of the offering. Acceptance
of any reserved Shares received by us at the office of Xxxxx & Company
Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, after the time
specified therefor in the telegrams, and any subscriptions for additional
Shares, will be subject to prior sale and allotment. Subscription books may be
closed by us at any time without notice, and the right is reserved to reject
any subscriptions in whole or in part.
3. OFFERING TO PUBLIC BY SELECTED DEALERS. Upon receipt of the
aforementioned telegram, the Shares purchased by you hereunder may be
re-offered to the public in conformity with the
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terms of offering set forth in the Prospectus. You may, in accordance with the
rules of the National Association of Securities Dealers, Inc., reallow a
concession of $_____ per Share sold by you to any other dealer or broker who is
a member of the National Association of Securities Dealers, Inc., provided such
discount is retained.
Neither you nor any other person is or has been authorized by the
Company, any of the several Underwriters or us to give information or make any
representations in connection with the sale of the Shares other than those
contained in the Prospectus.
In the event that during the term of this agreement we, as
Representatives for the account of the several Underwriters, shall purchase or
contract to purchase, at or below the original public offering price set forth
in the Prospectus, any of the Shares purchased by you hereunder (which Shares
theretofore were not effectively placed for investment by you, including Shares
represented by transfers), we may, at our election, either (a) require you to
repurchase such Shares at a price equal to the total cost of such Shares
purchased by us, including brokerage commissions, if any, and transfer taxes on
the redelivery, or (b) charge you with and collect from you an amount equal to
the selling concession with respect to the Shares so purchased by us.
4. PAYMENT AND DELIVERY. Payment for the Shares which you have
agreed to purchase hereunder shall be made by you on _________, 1997, or such
later date as we may advise you, at 9:00 a.m., New York Time, at Xxxxx &
Company Incorporated's office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, by
certified or bank cashier's check payable in New York Clearing House funds to
the order of Xxxxx & Company Incorporated, against delivery of such Shares.
Delivery instructions must be in our hands at said address as such time as we
request.
Additional Shares confirmed to you shall be delivered on such date or
dates as we shall advise you.
5. BLUE SKY MATTERS. Neither we nor any of the several Underwriters
shall have any obligation or responsibility with respect to the right of any
dealer to sell the Shares in any jurisdiction, notwithstanding any information
which may be furnished as to the states under the securities laws of which it
is believed the Shares may be sold.
6. TERMINATION. This agreement shall terminate 20 full days after
the First Closing Date (as defined in the Underwriting Agreement) but may be
extended for a period or periods not exceeding in the aggregate 20 days as we
may determine. We may terminate this Agreement at any time without prior
notice. Notwithstanding the termination of this agreement, you shall remain
liable for your portion of any transfer tax or other
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liability which may be asserted or assessed against us or any one or more of
the several Underwriters or Selected Dealers based upon the claim that the
Selected Dealers or any of them constitute a partnership, an association, an
unincorporated business or other separate entity.
7. OBLIGATIONS OF SELECTED DEALERS. Your acceptance hereof will
constitute an obligation on your part to purchase, upon the terms and
conditions hereof, the aggregate amount of the Shares reserved for and accepted
by you and to perform and observe all the terms and conditions hereof.
You are not authorized to act as agent for any of the several
Underwriters in offering Shares to the public or otherwise. Nothing contained
herein shall constitute the Selected Dealers an association, or partners with
the several Underwriters, with us, or with each other.
8. POSITION OF THE REPRESENTATIVES. We shall have full authority to
take such action as we may deem advisable in respect of all matters pertaining
to the offering or arising hereunder, but shall act only as Representatives of
the several Underwriters. Neither we nor any of the several Underwriters shall
be under any liability to you, except for our own want of good faith,
obligations assumed in this agreement, or any liabilities arising under the
Securities Act of 1933. No obligation not expressly assumed by us in this
agreement shall be implied hereby or inferred herefrom.
9. NOTICES. All communications from you should be addressed to us,
c/o Allen & Company Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Any notice from us to you shall be deemed to have been duly given if mailed or
telegraphed to you at the address to which this letter is mailed.
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Please confirm the foregoing by signing the duplicate copy of this
agreement enclosed herewith and returning it to us at the address in Section 9
above.
Very truly yours,
XXXXX & COMPANY INCORPORATED
XXXXX & COMPANY
By: Xxxxx & Company Incorporated
By: ______________________________
Vice President
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XXXXX & COMPANY INCORPORATED
XXXXX & COMPANY
As Representatives of the several Underwriters
c/o Allen & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Sirs:
We hereby confirm our agreement to purchase __________ Shares
of Vision Solutions, Inc. (the "Shares"), subject to your acceptance or
rejection in whole or in part in the case of a subscription subject to
allotment or in excess of any reservation, and subject to all the other terms
and conditions stated in the foregoing letter.
We hereby acknowledge receipt of the prospectus relating to
the above described Shares (the "Prospectus") and we further state that in
purchasing the Shares confirmed to us we have relied upon such Prospectus and
on no other statements whatsoever, written or oral.
We hereby represent that we are a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD") and agree to
comply with the provisions of Article III, Section 24 of the NASD's Rules of
Fair Practice (the "NASD Rules"), or, if we are not such a member, we are a
foreign dealer or institution that is not registered under Section 15(b) of the
Securities Exchange Act of 1934 and that hereby agrees (i) to make no sales
within the United States, its territories or its possessions or to persons who
are citizens thereof or residents therein, (ii) if the offering of the Shares
is one within the scope of the NASD's Interpretation with Respect to
Free-Riding and Withholding, not to make other sales of Shares to persons
enumerated in paragraphs "1" through "5" of such Interpretation or in a manner
inconsistent with paragraph "6" thereof and (iii) to comply with the provisions
of Article III, Sections 8, 24, 25 (as applicable to a non- member
broker/dealer in a foreign country) and 36 of the NASD Rules.
Name of Selected Dealer
__________________________________
__________________________________
(Authorized Signature)
Dated: ______________, 1997
