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EXHIBIT 1.1
_____________ Shares
VIASAT, INC.
Common Stock
UNDERWRITING AGREEMENT
September __, 1996
Xxxxxxxxxxx & Co., Inc.Xxxxxxx & Company, Inc.
Xxxxx, Xxxxx & Company
c/o Oppenheimer & Co., Inc.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the several Underwriters named on Schedule I attached hereto.
Ladies and Gentlemen:
ViaSat, Inc., a California corporation (the "Company"), and the selling
shareholders named on Schedule II attached to this Agreement (the "Selling
Shareholders") propose to sell to you and the other underwriters named on
Schedule I attached to this Agreement (the "Underwriters"), for whom you are
acting as Representatives, an aggregate of _________ shares (the "Firm Shares")
of the Company's Common Stock, $.01 par value (the "Common Stock"). Of the
_________ Firm Shares, _____________ are to be issued and sold by the Company
and _____________ are to be sold by the Selling Shareholders. In addition, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional _________ shares (the "Option Shares") of Common Stock solely for the
purpose of covering over-allotments in connection with the sale of the Firm
Shares. The Firm Shares and the Option Shares are together called the "Shares."
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1. Sale and Purchase of the Shares. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company and the Selling Shareholders agree severally and
not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase, at $[ ]
per share (the "Initial Price"), the number of Firm Shares (adjusted by
the Representatives to eliminate fractions) which bears the same
proportion to the total number of Firm Shares to be sold by the Company
or the Selling Shareholders, as the case may be, as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule I
attached to this Agreement bears to the total number of Firm Shares to
be sold by the Company and the Selling Shareholders.
(b) The Selling Shareholders grant to the Underwriters an option to
purchase, severally and not jointly, all or any part of the Option
Shares at the Initial Price. The number of Option Shares to be
purchased by each Underwriter shall be the same percentage (adjusted by
the Representatives to eliminate fractions) of the total number of
Option Shares to be purchased by the Underwriters as such Underwriter
is purchasing of the Firm Shares. Such option may be exercised only to
cover over-allotments in the sales of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time on or
before 12:00 noon, New York City time, on the business day before the
Firm Shares Closing Date (as defined below), and [ONLY ONCE] thereafter
within 30 days after the date of this Agreement, in each case upon
written or facsimile notice, or verbal or telephonic notice confirmed
by written or facsimile notice, by the Representatives to the Company
no later than 12:00 noon, New York City time, on the business day
before the Firm Shares Closing Date or at least two business days
before the Option Shares Closing Date (as defined below), as the case
may be, setting forth the number of Option Shares to be purchased and
the time and date (if other than the Firm Shares Closing Date) of such
purchase.
2. Delivery and Payment. Delivery of the certificates for the Firm
Shares shall be made by the Company and the Custodian (as hereinafter defined)
on behalf of the Selling Shareholders to the Representatives for the respective
accounts of the Underwriters, and payment of the purchase price by certified or
official bank check or checks payable in New York Clearing House (next day)
funds to the Company and the Custodian, respectively, shall take place at the
offices of Xxxxxxxxxxx & Co., Inc., Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time, on the third
business day following the date of this Agreement, provided, however, that if
the Shares sold hereunder are priced and this Agreement is entered into after
4:30 p.m., New York City time, on any business day, payment and delivery in
respect of the Firm Shares shall take place on the fourth business day following
the date of this Agreement; in either case unless another time shall be
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agreed upon by the Company, the Selling Shareholders and the Representatives
(such time and date of delivery and payment are called the "Firm Shares Closing
Date").
In the event the option with respect to the Option Shares is exercised,
delivery of the certificates for the Option Shares shall be made by the Company
to the Representatives for the respective accounts of the Underwriters, and
payment of the purchase price by certified or official bank check or checks
payable in New York Clearing House (next day) funds to the Company shall take
place at the offices of Xxxxxxxxxxx & Co., Inc. specified above at the time and
on the date (which may be the same date as, but in no event shall be earlier
than, the Firm Shares Closing Date) specified in the notice referred to in
Section 1(b) (such time and date of delivery and payment are called the "Option
Shares Closing Date"). The Firm Shares Closing Date and the Option Shares
Closing Date are called, individually, a "Closing Date" and, together, the
"Closing Dates."
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, [ON THE DAY OF NOTICE OF EXERCISE OF THE OPTION,] as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering. The Company
has prepared in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the rules and regulations thereunder (the
"Rules") adopted by the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-1 (No. 333-[ ]), including a preliminary
prospectus relating to the Shares, and has filed with the Commission the
Registration Statement (as hereinafter defined) and such amendments thereof as
may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereof) and of the related
preliminary prospectus have heretofore been delivered by the Company to you. The
term "preliminary prospectus" means the preliminary prospectus (as described in
Rule 430 of the Rules) included at any time as a part of the Registration
Statement or filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules. The Registration
Statement, as amended at the time and on the date it becomes effective (the
"Effective Date"), including all exhibits and information, if any, deemed to be
part of the Registration Statement pursuant to Rule 424(b) and Rule 430A of the
Rules, is called the "Registration Statement." The term "Prospectus" means the
prospectus in the form first used to confirm sales of the Shares (whether such
prospectus was included in the Registration Statement at the time of
effectiveness or was subsequently filed with the Commission pursuant to Rule
424(b) of the Rules). If the Company files a registration statement to register
a portion of the Shares and relies on Rule 462(b) for such registration
statement to become effective upon filing with the Commission (the "Rule 462(b)
Registration Statement"), then any
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reference to the "Registration Statement" herein shall be deemed to include both
the registration statement referred to above (No. 333-_____) and the Rule 462(b)
Registration Statement, as each such registration statement may be amended
pursuant to the Securities Act.
The Company and the Selling Shareholders understand that the
Underwriters propose to make a public offering of the Shares, as set forth in
and pursuant to the Prospectus, as soon after the Effective Date and the date of
this Agreement as the Representatives deem advisable. The Company and the
Selling Shareholders hereby confirm that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each preliminary prospectus
and are authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. Representations and Warranties of the Company and the Selling
Shareholders. The Company and the Selling Shareholders hereby, jointly and
severally, represent and warrant to each Underwriter as follows:
(a) On the Effective Date, the Registration Statement and all other
registration statements and reports filed with the Commission by the
Company complied, and on the date of the Prospectus, on the date any
post-effective amendment to the Registration Statement shall become
effective, on the date any supplement or amendment to the Prospectus is
filed with the Commission, at all times that a prospectus must be
delivered by the Underwriters pursuant to the Securities Act and on
each Closing Date, the Registration Statement, the Prospectus (and any
amendment thereof or supplement thereto) and all other registration
statements and reports filed with the Commission by the Company will
comply, in all material respects, with the applicable provisions of the
Securities Act and the Rules and the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations
thereunder adopted by the Commission; the Registration Statement did
not, as of the Effective Date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and on the other dates referred to above neither the
Registration Statement nor the Prospectus, nor any amendment thereof or
supplement thereto, will contain any untrue statement of a material
fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the Registration
Statement or any amendment thereto or pursuant to Rule 424(a) of the
Rules) and when any amendment thereof or supplement thereto was first
filed with the Commission, such preliminary prospectus, as amended or
supplemented, complied in all material respects with the applicable
provisions of the Securities Act and the Rules and did not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading.
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Notwithstanding the foregoing, the Company and the Selling Shareholders
make no representation or warranty as to the last paragraph of the
cover page of the Prospectus, the paragraph with respect to
stabilization on the inside front cover page of the Prospectus and the
statements contained under the caption "Underwriting" in the Prospectus
(to the extent such statements relate to the Underwriters). The Company
and each of the Selling Shareholders acknowledge that the statements
referred to in the previous sentence constitute the only information
furnished in writing by the Representatives on behalf of the several
Underwriters specifically for inclusion in the Registration Statement,
any preliminary prospectus or the Prospectus.
(b) The financial statements of the Company and [ITS SUBSIDIARY (AS
DEFINED BELOW)] (including all notes and schedules thereto) included in
the Registration Statement and the Prospectus comply as to form in all
material respects with the requirements of the Securities Act and the
Rules and present fairly on a consolidated basis the financial
position, the results of operations and cash flows and the
shareholders' equity and the other information purported to be shown
therein of the Company [AND ITS SUBSIDIARY] at the respective dates and
for the respective periods to which they apply; and such financial
statements have been prepared in conformity with generally accepted
accounting principles, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of the
results for such periods have been made; and the other financial and
statistical information and the supporting schedules included in the
Prospectus and in the Registration Statement present fairly, in all
material respects, the information required to be stated therein.
(c) Price Waterhouse LLP, whose reports are filed with the
Commission as a part of the Registration Statement, are and, during the
periods covered by their reports, were independent public accountants
as required by the Securities Act and the Rules.
(d) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of
California. [EXCEPT FOR THE COMPANY'S SUBSIDIARY LISTED IN EXHIBIT 21
TO THE REGISTRATION STATEMENT (THE "SUBSIDIARY"),] The Company does not
control, directly or indirectly, any corporation, partnership, joint
venture, association or other business organization. [THE SUBSIDIARY
HAS BEEN DULY ORGANIZED AND IS VALIDLY EXISTING AS A CORPORATION IN
GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION.]
[EACH OF] The Company [AND ITS SUBSIDIARY] is duly qualified and in
good standing as a foreign corporation in each jurisdiction in which
the character or location of its assets or properties (owned, leased or
licensed) or the nature of its business makes such qualification
necessary or desirable, except for such jurisdictions where the failure
to so qualify would not have a material adverse effect on the assets or
properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company [AND ITS SUBSIDIARY,
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TAKEN AS A WHOLE.] [EACH OF] The Company [AND ITS SUBSIDIARY] has all
requisite power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and
from all governmental or regulatory agencies, bodies or authorities,
[INCLUDING THE FEDERAL COMMUNICATIONS COMMISSION (THE "FCC")] or any
other person or entity, to own, lease and license its assets and
properties and conduct its businesses as now being conducted and as
described in the Registration Statement and the Prospectus, except for
such authorizations, approvals, consents, orders, licenses,
certificates and permits the failure to so obtain would not have a
material adverse effect upon the assets or properties, business,
results of operations, prospects or condition (financial or otherwise)
of the Company [AND ITS SUBSIDIARY, TAKEN AS A WHOLE]; no such
authorization, approval, consent, order, license, certificate or permit
contains a materially burdensome restriction other than as disclosed in
the Registration Statement and the Prospectus; and the Company has all
such corporate power and authority, and such authorizations, approvals,
consents, orders, licenses, certificates and permits to enter into,
deliver and perform this Agreement and to authorize, issue and sell the
Shares (except as may be required under the Securities Act and state
Blue Sky or securities laws).
(e) Neither the Commission nor the Blue Sky or securities
authorities of any jurisdiction has issued an order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any preliminary prospectus, the Prospectus, the Registration
Statement, or any amendment or supplement thereto, refusing to permit
the effectiveness of the Registration Statement or suspending the
registration or qualification of the Shares, nor has any of such
authorities instituted or threatened to institute any proceedings with
respect to such an order in any jurisdiction in which the Shares are to
be sold.
(f) [EACH OF] The Company [AND ITS SUBSIDIARY] owns, or
possesses adequate and enforceable rights to use, all trademarks,
trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, know-how and other similar rights and
proprietary knowledge (collectively, "Intangibles") necessary or
desirable for the conduct of its business as described in the
Registration Statement and the Prospectus. Neither the Company nor its
Subsidiary has received any notice of, or is aware of, any infringement
of or conflict with asserted rights of others with respect to any
Intangibles which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect upon the assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the Company [AND ITS
SUBSIDIARY, TAKEN AS A WHOLE].
(g) [EACH OF] The Company [AND ITS SUBSIDIARY] has good title
to each of the items of real and personal property which are reflected
in the financial statements referred to in Section 4(c) or are referred
to in the Registration Statement and the Prospectus as being owned by
it and valid and enforceable leasehold interests in each of the items
of real and personal property which
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are referred to in the Registration Statement and the Prospectus as
being leased by it, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, other than those
described in the Registration Statement and the Prospectus and those
which do not and will not have a material adverse effect upon the
assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company [AND ITS SUBSIDIARY,
TAKEN AS A WHOLE].
(h) There is no litigation or governmental or other proceeding
or investigation before any court or before or by any public body,
agency or authority, including the FCC, pending or, to the best
knowledge of the Company after due inquiry, threatened (and the Company
does not know of any basis therefor) against, or involving the assets,
properties or business of, the Company [OR ITS SUBSIDIARY] which would
materially adversely affect the value or the operation of any such
assets or properties or the business, results of operations, prospects
or condition (financial or otherwise) of the Company [AND ITS
SUBSIDIARY, TAKEN AS A WHOLE], or which would prevent the consummation
of the transactions contemplated by this Agreement or is required to be
disclosed in the Prospectus.
(i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
described therein: (i) there has not been any material adverse change
in the assets or properties, business, results of operations, prospects
or condition (financial or otherwise) of the Company [OR OF ITS
SUBSIDIARY], whether or not arising from transactions in the ordinary
course of business; (ii) [NEITHER] the Company [NOR ITS SUBSIDIARY] has
not sustained any material loss or interference with its assets,
businesses or properties (whether owned or leased) from fire,
explosion, earthquake, hurricane, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or any court or
legislative or other governmental or regulatory action, order or
decree; and (iii) since the date of the latest balance sheet included
in the Registration Statement and the Prospectus, except as reflected
therein, [NEITHER] the Company [NOR ITS SUBSIDIARY] has not (A) issued
any securities or incurred any liability or obligation, direct or
contingent, for borrowed money, except such liabilities or obligations
incurred in the ordinary course of business, (B) entered into any
transaction not in the ordinary course of business or (C) declared or
paid any dividend or made any distribution on any shares of its stock
or redeemed, purchased or otherwise acquired or agreed to redeem,
purchase or otherwise acquire any shares of its stock or other
securities.
(j) There is no document or contract of a character required
to be described in the Registration Statement and the Prospectus or to
be filed as an exhibit to the Registration Statement which is not
described or filed as required. Each agreement listed in the Exhibits
to the Registration Statement is in full force and effect and is valid
and enforceable by and against the Company or its Subsidiary, as the
case may be, in accordance with its terms, assuming the
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due authorization, execution and delivery thereof by each of the other
parties thereto. Neither the Company [NOR ITS SUBSIDIARY,] nor, to the
best knowledge of the Company after due inquiry, any other party is in
default in the observance or performance of any term or obligation to
be performed by it under any such agreement, and no event has occurred
which, with notice or lapse of time or both, would constitute such a
default, in any such case which default or event would have a material
adverse effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company [AND ITS SUBSIDIARY, TAKEN AS A WHOLE]. No default exists, and
no event has occurred which, with notice or lapse of time or both,
would constitute a default, in the due performance and observance of
any term, covenant or condition, by the Company [OR ITS SUBSIDIARY] of
any other agreement or instrument to which the Company [OR ITS
SUBSIDIARY] is a party or by which it or its assets, properties or
business may be bound or affected which default or event would have a
material adverse effect on the assets or properties, business, results
of operations, prospects or condition (financial or otherwise) of the
Company [AND ITS SUBSIDIARY, TAKEN AS A WHOLE].
(k) [NEITHER] The Company [NOR ITS SUBSIDIARY] is not in
violation of any term or provision of its charter or by-laws, or of any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation could have a
material adverse effect on the assets or properties, business, results
of operations, prospects or condition (financial or otherwise) of the
Company [AND ITS SUBSIDIARY, TAKEN AS A WHOLE].
(l) The Company [AND ITS SUBSIDIARY] has obtained all
authorizations, approvals, consents, orders, licenses, certificates and
permits which are required under federal, state and local statutes,
rules and regulations relating to pollution or protection of the
environment, including laws relating to emissions, discharges, releases
or threatened releases of pollutants, contaminants or hazardous,
radioactive or toxic materials or wastes into ambient air, surface
water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of pollutants, contaminants or hazardous, radioactive or
toxic materials or wastes. The Company [AND ITS SUBSIDIARY] complies in
all respects with all terms and conditions of the authorizations,
approvals, consents, orders, licenses, certificates and permits, and
are also in full compliance with all other limitations, restrictions,
obligations, schedules and timetables contained in such statutes, rules
and regulations or contained in any code, plan, order, decree,
judgment, notice or demand letter issued, entered, promulgated or
approved thereunder. Except as described in the Registration Statement
and the Prospectus, [NEITHER] the Company [NOR ITS SUBSIDIARY] is not
aware of, nor has the Company [OR ITS SUBSIDIARY] received notice of,
any past, present or future events, conditions, circumstances,
activities, practices, incidents, actions or plans which may interfere
with or prevent continued compliance, or which may give rise to any
common law or legal liability, or otherwise form the basis of any
claim, action, suit, proceeding, hearing or
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investigation, based on or related to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling,
or the emission, discharge, release or threatened release into the
environment, of any pollutant, contaminant or hazardous, radioactive or
toxic material or waste.
(m) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Shares and the sale by the
Selling Shareholders of the Shares to be sold by them) will give rise
to a right to terminate or accelerate the due date of any payment due
under, or conflict with or result in the breach or violation of any
term or provision of, or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under, or
require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or
assets of the Company [OR ITS SUBSIDIARY] pursuant to the terms of, any
indenture, mortgage, deed of trust, note or other agreement or
instrument to which the Company [OR ITS SUBSIDIARY] is a party or by
which the Company or [ITS SUBSIDIARY] is bound or to which the Company
[OR ITS SUBSIDIARY] or any of its properties, assets or businesses is
subject or affected, or any franchise, license, consent, certificate,
permit, judgment, decree, order, notice, plan, code, statute, rule or
regulation, including, without limitation, the Communications Act,
applicable to the Company [OR ITS SUBSIDIARY] or violate any term or
provision of the Articles of Incorporation, as amended, and By-laws, as
amended, of the Company [OR THE CHARTER OR BY-LAWS OF ITS SUBSIDIARY],
except for such consents or waivers which have already been obtained
and are in full force and effect.
(n) The Company has authorized and outstanding capital stock
as set forth under the captions "Capitalization" and "Description of
Capital Stock" in the Prospectus. All of the outstanding Common Stock
and Series A Preferred Stock, par value, $.01 per share, have been duly
and validly issued and are fully paid and nonassessable and none of
them was issued in violation of any preemptive or other similar right.
[THE COMPANY OWNS ALL OF THE SHARES OF CAPITAL STOCK OR OTHER
BENEFICIAL INTERESTS OF ITS SUBSIDIARY, FREE AND CLEAR OF ALL LIENS,
CHARGES, CLAIMS, SECURITY INTERESTS, ENCUMBRANCES, SHAREHOLDERS'
AGREEMENTS, VOTING TRUSTS AND ANY OTHER RESTRICTIONS WHATSOEVER.] The
Shares to be issued and sold by the Company, when issued and sold by
the Company pursuant to this Agreement and the Shares to be sold by the
Selling Shareholders, when sold by the Selling Shareholders pursuant to
this Agreement, will be duly and validly issued, fully paid and
nonassessable and none of them will be issued in violation of any
preemptive or other similar right. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and there
is no commitment, plan or arrangement to issue, any share of stock of
the Company [OR ITS SUBSIDIARY], or any security convertible into, or
exercisable or
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exchangeable for, such stock. The Common Stock and the Shares conform
in all material respects to all statements in relation thereto
contained in the Registration Statement and the Prospectus.
(o) Except as described in the Registration Statement and the
Prospectus, no holder of any security of the Company has the right to
have any security owned by such holder included in the Registration
Statement or to demand registration of any security owned by such
holder during the period ending 180 days after the date of this
Agreement.
(p) Each shareholder listed on Schedule III hereto, director
and executive officer of the Company has delivered to the
Representatives his or her enforceable written agreement that, except,
in the case of the Selling Shareholders, for the sale of the Shares to
be sold by the Selling Shareholders pursuant to the Registration
Statement, he, she or it will not, for a period of 180 days after the
date of this Agreement, sell (including "short sales"), loan, pledge,
assign, transfer, encumber, distribute, grant or otherwise transfer or
dispose of, directly or indirectly (collectively, "Transfer"), or
offer, contract or otherwise agree to Transfer, any Common Stock or any
other securities convertible into or exchangeable for Common Stock or
any other equity securities of the Company owned by him, her or it,
without the prior written consent of the Representatives, except for
(i) sales to the several Underwriters pursuant to this Agreement or
(ii) pursuant to will or the laws of intestate succession, provided the
transferee thereof agrees in writing to be bound by such restrictions.
(q) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares.
This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as the enforceability thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles and
(ii) to the extent that rights to indemnity or contribution under this
Agreement may be limited by Federal and state securities laws or the
public policy underlying such laws.
(r) [NEITHER] The Company [NOR ITS SUBSIDIARY] is not involved
in any labor dispute nor, to the best knowledge of the Company after
due inquiry, is any such dispute threatened, which dispute would have a
material adverse effect on the assets or properties, business, results
of operations, prospects or condition (financial or otherwise) of the
Company [AND ITS SUBSIDIARY, TAKEN AS A WHOLE]; and the Company is not
aware of any existing or imminent labor disturbance by the employees of
any of its principal suppliers, manufacturers or
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contractors which would have a material adverse effect on the assets or
properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company [AND ITS SUBSIDIARY, TAKEN AS A
WHOLE].
(s) No transaction has occurred between or among the Company
[OR ITS SUBSIDIARY] and any of its [OR THEIR] officers, directors or
shareholders, as the case may be, or any affiliate or affiliates of any
such officer, director or shareholder, that is required to be described
in and is not described in the Registration Statement and the
Prospectus.
(t) [NEITHER] The Company [NOR ITS SUBSIDIARY] has not taken,
nor will it take, directly or indirectly, any action designed to or
which might reasonably be expected to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Shares to
facilitate the sale or resale of any of the Shares.
(u) [EACH OF] The Company [AND ITS SUBSIDIARY] has filed all
Federal, state, local and foreign tax returns which are required to be
filed through the date hereof, or has received valid extensions
thereof, and has paid all taxes shown on such returns and all
assessments received by it to the extent that the same have become due.
(v) The Shares have been duly authorized for quotation and
trading on the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") National Market.
(w) The Company has complied with all of the requirements and
filed the required forms as specified in Florida Statutes Section
517.075.
(x) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as each such term is defined in the Investment
Company Act of 1940, as amended.
(y) [EACH OF] The Company [AND ITS SUBSIDIARY] is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are customary in the business in which it
is engaged; and the Company has no reason to believe that it [OR ITS
SUBSIDIARY] 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 assets or
properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company [AND ITS SUBSIDIARY, TAKEN AS A
WHOLE].
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(z) [NEITHER] The Company [NOR ITS SUBSIDIARY] has not, directly or
indirectly, paid or delivered any fee, commission or other sum of money
or item of property, however characterized, to any finder, agent,
government official or other party, in the United States or any other
country, which is in any manner related to the assets, properties,
business or operations of the Company [OR SUCH SUBSIDIARY], which the
Company knows or has reason to believe to have been illegal under any
federal, state or local laws of the United States or any other country
having jurisdiction; and neither the Company nor its Subsidiary has
participated, directly or indirectly, in any boycotts or other similar
practices in contravention of law affecting any of its actual or
potential customers.
(aa) The Company meets, and on the Effective Date of the
Registration Statement and on each Closing Date will meet, the
conditions for use of Form S-1 under the Securities Act and the Rules.
(bb) The Company 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 accounting
records for assets are compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(cc) There are no claims, payments, issuances, agreements,
arrangements or understandings, whether oral or written, for services
in the nature of a finder's fee, brokerage fee, origination fee or
otherwise with respect to the offerings contemplated by this Agreement,
the Registration Statement and the Prospectus or any other
arrangements, agreements, understandings, payments or issuances that
may affect the Underwriters' compensation as determined by the National
Association of Securities Dealers, Inc. other than as disclosed in the
Registration Statement and Prospectus and other than as the
Representatives may themselves have agreed to with third parties.
5. Representations and Warranties of the Selling Shareholders. Each of
the Selling Shareholders, severally and not jointly, represents and warrants to
each Underwriter that:
(a) Such Selling Shareholder is, and on the Firm Shares Closing
Date will be, the sole lawful owner of the Shares to be sold by it
hereunder, and has, and on such date will have, good and marketable
title to the Shares to be sold by such Selling Shareholder hereunder,
free and clear of any lien, charge, claim, encumbrance, security
interest, shareholders' agreement, voting trust, restriction on
transfer or other defect in title.
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(b) Such Selling Shareholder has, and on the Firm Shares
Closing Date will have, full legal right, power and authority, and
every approval, authorization or other consent, required to sell,
assign, transfer and deliver such Shares in the manner provided in this
Agreement; delivery of certificates for the Shares to be sold by such
Selling Shareholder pursuant hereto will, upon payment therefor, pass
good and marketable title thereto to each Underwriter, free and clear
of any lien, charge, claim, encumbrance, security interest,
shareholders' agreement, voting trust, restriction on transfer or other
defect in title; and there are no outstanding options, warrants, rights
or other agreements or arrangements requiring such Selling Shareholder
at any time to transfer any Shares which may be sold to the
Underwriters pursuant to this Agreement.
(c) Such Selling Shareholder has duly executed and delivered a
power of attorney (the "Power of Attorney"), in the form heretofore
delivered to the Representatives, appointing [ ] and
[ ], as such Selling Shareholder's attorneys-in-fact
(the "Attorneys-in- Fact"), each of them, together or individually,
with full power and authority to execute, deliver and perform this
Agreement on behalf of such Selling Shareholder.
(d) Such Selling Shareholder has duly executed and delivered a
custody agreement (the "Custody Agreement"), in the form heretofore
delivered to the Representatives pursuant to which certificates in
negotiable form for the Shares to be sold by such Selling Shareholder
under this Agreement were deposited with [ ], as a
custodian (the "Custodian"). The Custody Agreement and the Custodian's
authority thereunder and the appointment of the Attorneys-in-Fact are
irrevocable and the obligations of such Selling Shareholder hereunder
and under the Custody Agreement are not subject to termination by such
Selling Shareholder, except as provided in this Agreement, the Power of
Attorney or the Custody Agreement, or by operation of law, whether by
the death or incapacity of such Selling Shareholder (if such Selling
Shareholder is an individual), the death or incapacity of any trustee
or executor or the termination of any trust or estate (if such Selling
Shareholder is a trust or estate), the dissolution or liquidation of
any corporation or partnership (if such Selling Shareholder is a
corporation or a partnership), or the occurrence of any other event. If
any event referred to in the preceding sentence should occur before the
delivery of the Shares hereunder, the certificates for the Shares to be
sold by such Selling Shareholder shall be delivered by the Custodian on
behalf of such Selling Shareholder in accordance with the terms and
conditions of this Agreement and the Custody Agreement, and action
taken by the Custodian pursuant to the Custody Agreement shall be as
valid as if such event had not occurred, whether or not the Custodian
or the Attorneys-in- Fact, or any one of them, shall have received
notice of such event.
(e) The execution, delivery and performance of this Agreement,
the Power of Attorney and the Custody Agreement and the consummation of
the transactions to be performed by such Selling Shareholder
contemplated hereby and thereby, including the delivery and sale
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of the Shares to be delivered and sold by such Selling Shareholder
hereunder and thereunder, will not conflict with or result in a breach
or violation of, or constitute a default (or an event which with notice
or lapse of time or both would constitute a default) under, any
agreement, indenture or other instrument to which such Selling
Shareholder is a party or by which it is bound, or to which any of its
assets or properties are subject or affected, nor will the performance
by such Selling Shareholder of its obligations hereunder or thereunder
violate any statute, rule, regulation, including, without limitation,
the Communications Act, or order or decree of any court or any
governmental or regulatory agency, authority or body, including,
without limitation, the FCC, having jurisdiction over such Selling
Shareholder or any of its assets or properties or result in the
creation or imposition of any lien, charge, claim, security interest,
encumbrance or restriction whatsoever upon such Shares.
(f) Except for permits and similar authorizations required
under the Securities Act, the securities or Blue Sky laws of certain
jurisdictions, and such permits and authorizations which have been
obtained, no consent, approval, authorization, license, permit or
certificate or order of any court, governmental or regulatory agency,
authority or body, including the FCC, or financial institution is
required in connection with the consummation of the transactions to be
performed by such Selling Shareholder contemplated by this Agreement,
including the delivery and sale of the Shares to be sold by such
Selling Shareholder.
(g) Each of this Agreement, the Power of Attorney and the
Custody Agreement has been duly and validly authorized, executed and
delivered by such Selling Shareholder and constitutes a legal, valid
and binding obligation of such Selling Shareholder, enforceable against
such Selling Shareholder in accordance with its terms, except (i) as
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles and (ii) to the extent that rights to indemnity or
contribution under this Agreement may be limited by Federal and state
securities laws or the public policy underlying such laws.
(h) All information furnished to the Company by such Selling
Shareholder or on such Selling Shareholder's behalf for use in
connection with the preparation of the Registration Statement and
Prospectus (including, without limiting the generality of the
foregoing, all representations and warranties of such Selling
Shareholder in such Selling Shareholder's Power of Attorney and the
information relating to such Selling Shareholder which is set forth in
the Registration Statement under the caption "Principal and Selling
Shareholders") is true and correct and does not omit any material fact
necessary to make such information not misleading.
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(i) The sale by such Selling Shareholder of Shares pursuant
hereto is not prompted by any adverse information concerning the
Company or its Subsidiary.
(j) Such Selling Shareholder has not since the filing of the
Registration Statement (i) sold, bid for, purchased, attempted to
induce any person to purchase, or paid anyone any compensation for
soliciting purchases of, the Common Shares or (ii) paid or agreed to
pay to any person any compensation for soliciting another to purchase
any securities of the Company, except for the sale of the Shares by the
Selling Shareholders under this Agreement.
(k) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the
Common Shares to facilitate the sale or resale of the Shares.
6. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 7(A)(a) of this Agreement. The
Registration Statement shall have become effective no later than 5:00
p.m., New York City time, on the date of this Agreement or such later
time and date as shall be consented to in writing by the
Representatives.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or shall be in
effect and no order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission, and any requests 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 satisfaction of the Representatives.
(c) The representations and warranties of the Company and the
Selling Shareholders contained in this Agreement and in the
certificates delivered pursuant to Section 6(d) and 6(e), respectively,
shall be true and correct when made and on and as of each Closing Date
as if made on such date and the Company and the Selling Shareholders
shall have performed all covenants and agreements and satisfied all the
conditions contained in this Agreement required to be performed or
satisfied by it or them at or before such Closing Date.
(d) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated such
Closing Date, of the chief executive or chief operating officer and the
chief financial officer or chief accounting officer of the Company to
the
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effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that the
representations and warranties of the Company in this Agreement are
true and correct on and as of such Closing Date with the same effect as
if made on such Closing Date and the Company has performed all
covenants and agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by it at or prior to
such Closing Date.
(e) The Representatives shall have received on the Firm Shares
Closing Date a certificate, addressed to the Representatives and dated
such Closing Date, of each Selling Shareholder, to the effect that such
Selling Shareholder has carefully examined the Registration Statement,
the Prospectus and this Agreement and that the representations and
warranties of such Selling Shareholder contained in this Agreement are
true and correct as if made on and as of such Closing Date, with the
same effect as if made on such Closing Date, and such Selling
Shareholder has performed all covenants and agreements and satisfied
all conditions contained in this Agreement required to be performed or
satisfied by such Selling Shareholder at or prior to such Closing Date.
(f) The Representatives shall have received on the Effective
Date, at the time this Agreement is executed and on each Closing Date
signed letters from Price Waterhouse LLP addressed to the
Representatives and dated, respectively, the Effective Date, the date
of this Agreement and each such Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Securities Act and
the Rules, that the response to Item 10 of the Registration Statement
is correct insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements
and the schedules to the financial statements included in the
Registration Statement and the Prospectus and reported on by
them comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and
the Rules;
(ii) on the basis of a reading of the amounts
included in the Registration Statement and the Prospectus
under the headings "Summary Financial [INFORMATION],"
"Capitalization," "Dilution," "Selected Financial Data" and
"Management's Discussion and Analysis of Financial Condition
and Results of Operations," carrying out certain procedures
(but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter, a reading of the minutes of the meetings of the
shareholders and directors of the Company [AND ITS SUBSIDIARY]
(including any committees thereof), and inquiries of certain
officials of the Company [AND ITS
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SUBSIDIARY] who have responsibility for financial and
accounting matters of the Company [AND ITS SUBSIDIARY] as to
transactions and events subsequent to the date of the latest
audited financial statements, except as disclosed in the
Registration Statement and the Prospectus, nothing came to
their attention which caused them to believe that:
(A) the amounts in "Summary Financial
[INFORMATION]," "Capitalization," "Dilution,"
"Selected Financial Data" and "Management's
Discussion and Analysis of Financial Condition and
Results of Operations" included in the Registration
Statement and the Prospectus do not agree with the
corresponding amounts in the audited financial
statements from which such amounts were derived; or
(B) (x) there were, at a specified date not
more than five business days prior to the date of the
letter, any changes in the short-term or long-term
debt of the Company and its Subsidiary or capital
stock of the Company or its Subsidiary or any
decreases in net income or in working capital or the
shareholders' equity in the Company or its
Subsidiary, as compared with the amounts shown on the
Company's unaudited June 30, 1996 balance sheet
included in the Registration Statement or, (y) for
the period from June 30, 1996 to such specified
business date not more than five business days prior
to the date of the letter, there were any decreases,
as compared with the corresponding period in the
preceding year, in net revenues or in the total or
per share amounts of net income in which case the
Company shall deliver to the Representatives a letter
containing an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives or is set
forth in or contemplated by the Registration
Statement;
(iii) on the basis of a reading of the pro forma
financial information included in the Registration Statement
and the Prospectus, carrying out certain procedures that would
not necessarily reveal matters of significance with respect to
the comments set forth in this clause (iii), inquiries of
certain officials of the Company [AND ITS SUBSIDIARY] who have
responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial information, nothing came to their attention that
caused them to believe that the pro forma financial
information included in the Prospectus do not comply in form
in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X, or that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements; and
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(iv) they have performed certain other procedures as
a result of which they have determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Registration Statement and the
Prospectus and reasonably specified by the Representatives
agrees with the accounting records of the Company.
References to the Registration Statement and the Prospectus in
this paragraph (f) are to such documents as amended and
supplemented as of the date of the letter.
(g) The Representatives shall have received:
(i) an opinion from Xxxxxx & Xxxxxxx, counsel for the
Company, addressed to the Representatives, dated each Closing
Date, stating in effect that:
(A) The Company has been duly organized and
is validly existing as a corporation in good standing
under the laws of the State of California. To the
best of such counsel's knowledge after due inquiry,
[EXCEPT FOR THE SUBSIDIARY,] the Company has no
[OTHER] subsidiary and does not control, directly or
indirectly, any corporation, partnership, joint
venture, association or other business organization.
[THE SUBSIDIARY HAS BEEN DULY ORGANIZED AND IS
VALIDLY EXISTING AS A CORPORATION IN GOOD STANDING
UNDER THE LAWS OF THE JURISDICTION OF ITS
ORGANIZATION.] [EACH OF] The Company [AND ITS
SUBSIDIARY] is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which
the character or location of its assets or properties
(owned, leased or licensed) or the nature of its
businesses makes such qualification necessary or
desirable, except for such jurisdictions where the
failure to so qualify would not have a material
adverse effect on the assets or properties, business,
results of operations, prospects or condition
(financial or otherwise) of the Company [AND ITS
SUBSIDIARY, TAKEN AS A WHOLE].
(B) [EACH OF] The Company [AND ITS
SUBSIDIARY] has all requisite power and authority to
own, lease and license its assets and properties and
conduct its business as now being conducted and as
described in the Registration Statement and the
Prospectus; and the Company has all requisite
corporate power and authority and all necessary
authorizations, approvals, consents, orders,
licenses, certificates and permits, other than those
required under state Blue Sky or securities laws, to
enter into, deliver and perform this Agreement and to
authorize, issue and sell the Shares.
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(C) The Company has authorized and issued
capital stock as set forth in the Registration
Statement and the Prospectus. The certificates
evidencing the Shares are in due and proper legal
form and have been duly authorized for issuance by
the Company. All of the outstanding Common Stock of
the Company have been duly and validly authorized and
have been duly and validly issued and are fully paid
and nonassessable and none of them was issued in
violation of any preemptive or other similar right.
[THE COMPANY OWNS ALL OF THE SHARES OF CAPITAL STOCK
OR OTHER BENEFICIAL INTERESTS OF ITS SUBSIDIARY, FREE
AND CLEAR OF ALL LIENS, CHARGES, CLAIMS, SECURITY
INTERESTS, ENCUMBRANCES, SHAREHOLDERS' AGREEMENTS,
VOTING TRUSTS AND ANY OTHER RESTRICTIONS WHATSOEVER.
] The Shares, when issued and sold pursuant to this
Agreement, will be duly and validly issued,
outstanding, fully paid and nonassessable and none of
them will have been issued in violation of any
preemptive or other similar right. To such counsel's
knowledge after due inquiry, except as disclosed in
the Registration Statement and the Prospectus, there
is no outstanding option, warrant or other right
calling for the issuance of, and no commitment, plan
or arrangement to issue, any share of stock of the
Company or any security convertible into, exercisable
for, or exchangeable for stock of the Company. The
Common Stock and the Shares conform in all material
respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(D) The agreement of the Company's
shareholders set forth on Schedule III to this
Agreement and directors and officers stating that
(except in the case of the Selling Shareholders, for
the sale of the Shares to be sold by the Selling
Shareholders pursuant to the Registration Statement)
for a period of 180 days from the date of this
Agreement they will not, without the Representatives'
prior written consent, directly or indirectly,
Transfer, or offer, contract or otherwise agree to
Transfer, any Common Stock or any other securities
convertible into or exchangeable for Common Stock or
any other equity securities owned by them, except for
(i) sales to the several Underwriters pursuant to
this Agreement or (ii) pursuant to will or the laws
of intestate succession, provided the transferee
thereof agrees in writing to be bound by such
restrictions, has been duly and validly executed and
delivered by such persons and constitutes the legal,
valid and binding obligation of each such person
enforceable against each such person in accordance
with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or
other similar laws
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affecting the enforcement of creditors' rights
generally and by general equitable principles.
(E) All necessary corporate action has been
duly and validly taken by the Company to authorize
the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares.
This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the
Company enforceable against the Company in accordance
with its terms, except (i) as such enforceability may
be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of
creditors' rights generally and by general equitable
principles and (ii) to the extent that rights to
indemnity or contribution under this Agreement may be
limited by Federal or state securities laws or the
public policy underlying such laws.
(F) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance
and sale by the Company of the Shares to be issued
and sold by the Company) will give rise to a right to
terminate or accelerate the due date of any payment
due under, or conflict with or result in the breach
or violation of any term or provision of, or
constitute a default (or any event which with notice
or lapse of time, or both, would constitute a
default) under, or require consent or waiver under,
or result in the execution or imposition of any lien,
charge or encumbrance upon any properties or assets
of the Company [OR ITS SUBSIDIARY] pursuant to the
terms of, any indenture, mortgage, deed of trust,
note or other agreement or instrument to which the
Company [OR ITS SUBSIDIARY] is a party or by which
the Company [OR ITS SUBSIDIARY] is bound or to which
the Company [OR ITS SUBSIDIARIES] or any of its
respective properties, assets or businesses is
subject or affected, or any franchise, license,
consent, certificate, permit, judgment, decree,
order, notice, plan, code, statute, rule or
regulation or violate any provision of the Articles
of Incorporation, as amended, or By-laws, as amended,
of the Company [OR THE CHARTER OR BY-LAWS OF THE
SUBSIDIARY].
(G) To the best of such counsel's knowledge
after due inquiry, no default exists, and no event
has occurred which with notice or lapse of time, or
both, would constitute a default, in the due
performance and observance of any term, covenant or
condition by the Company [OR ITS SUBSIDIARY] of any
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indenture, mortgage, deed of trust, note or any other
agreement or instrument to which the Company [OR ITS
SUBSIDIARY] is a party or by which the Company [OR
ITS SUBSIDIARY] may be bound or to which the Company
[OR ITS SUBSIDIARY] or of any of its assets,
properties or businesses may be subject or affected,
where the consequences of such default would have a
material adverse effect on the assets, properties,
business, results of operations, prospects or
condition (financial or otherwise) of the Company
[AND ITS SUBSIDIARY, TAKEN AS A WHOLE].
(H) To the best of such counsel's knowledge
after due inquiry, [NEITHER] the Company [NOR ITS
SUBSIDIARY] is not in violation of any term or
provision of its Articles of Incorporation, as
amended, or the By-laws, as amended, or any
franchise, license, consent, certificate, permit,
judgment, decree, order, notice, plan, code, statute,
rule or regulation, where the consequences of such
violation would have a material adverse effect on the
assets or properties, businesses, results of
operations, prospects or condition (financial or
otherwise) of the Company [AND ITS SUBSIDIARY, TAKEN
AS A WHOLE.]
(I) No consent, approval, authorization,
license, certificate, permit or order of any court or
governmental or regulatory agency, authority or body
is required for the execution, delivery or
performance of this Agreement by the Company or the
consummation of the transactions contemplated hereby
or by the Registration Statement or the Prospectus,
except such as have been obtained under the
Securities Act and such as may be required under
state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the
several Underwriters.
(J) To the best of such counsel's knowledge
after due inquiry, there is no litigation or
governmental or other proceeding or investigation
before any court or before or by any public body,
agency or authority pending or threatened against, or
involving the assets, properties or businesses of,
the Company [OR ITS SUBSIDIARY] which might have a
material adverse effect upon the assets or
properties, business, results of operations,
prospects or condition (financial or otherwise) of
the Company [AND ITS SUBSIDIARY, TAKEN AS A WHOLE].
(K) The statements in the Prospectus under
the captions "Description of Capital Stock," "Shares
Eligible for Future Sale," "Business," "Management,"
"Capitalization," "Management's Discussion and
Analysis of Financial
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Condition and Results of Operations," "Principal and
Selling Shareholders," "Certain Transactions," and
"Risk Factors" insofar as such statements constitute
a summary of documents referred to therein or matters
of law, are fair summaries in all material respects
and accurately present the information called for
with respect to such documents and matters. All
contracts and other documents required to be filed as
exhibits to, or described in, the Registration
Statement have been so filed with the Commission or
are fairly described in the Registration Statement,
as the case may be.
(L) The Registration Statement, all
preliminary prospectuses, the Prospectus and each
amendment or supplement thereto (except for the
financial statements and schedules and other
financial data included therein, as to which such
counsel expresses no opinion) comply as to form in
all material respects with the requirements of the
Securities Act and the Rules. The descriptions in the
Registration Statement, all preliminary prospectuses,
the Prospectus, and each amendment or supplement
thereto, of statutes, legal and governmental
proceedings, contracts and other documents are
accurate in all material respects; such counsel does
not know of any statutes or legal or governmental
proceedings required to be described in the
Prospectus that are not described as required, or of
any contracts or documents of a character required to
be described in the Registration Statement or
Prospectus or to be filed as exhibits to the
Registration Statement that are not described and
filed as required.
(M) The Registration Statement has become
effective under the Securities Act, and no stop order
suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that
purpose have been instituted or are threatened,
pending or contemplated.
(N) Such counsel does not know that any of
the representations and warranties of the Company
contained in this Agreement are not true or correct
or that any of the covenants and agreements herein
contained to be performed on the part of the Company
or any of the conditions herein contained, or set
forth in the Registration Statement and the
Prospectus, to be fulfilled or complied with by the
Company, have not been or will not be duly and timely
performed, fulfilled or complied with.
To the extent deemed advisable by such counsel, they
may rely as to matters of fact on certificates of responsible
officers of the Company and public officials and on the
opinions of other counsel satisfactory to the Representatives
as to matters which are
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governed by laws other than the laws of the State of
California, the State of New York, the General Corporation Law
of the State of Delaware and the Federal laws of the United
States; provided that such counsel shall state that in their
opinion the Underwriters and they are justified in relying on
such other opinions. Copies of such certificates and other
opinions shall be furnished to the Representatives and counsel
for the Underwriters.
In addition, such counsel shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
Representatives and representatives of the independent
certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although
such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the
Prospectus (except as specified in the foregoing opinions), on
the basis of the foregoing, no facts have come to the
attention of such counsel which lead such counsel to believe
that the Registration Statement at the time it became
effective (except with respect to the financial statements and
notes and schedules thereto and other financial data, as to
which such counsel need express no belief) 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 as amended or supplemented (except with respect to
the financial statements and notes and schedules thereto and
other financial data, as to which such counsel need express no
belief) on the date thereof 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 under which they were made, not misleading.
(ii) an opinion from [XXXXXX & XXXXXXX], counsel for
the Selling Shareholders, addressed to the Representatives,
dated the Firm Shares Closing Date, stating in effect that:
(A) Assuming that the Underwriters acquire
their respective interests in the Shares to be sold
by the Selling Shareholders in good faith and without
notice of any adverse claims (within the meaning of
Section 8-302 of the Uniform Commercial Code), upon
delivery to the Underwriters of such Shares
registered in their names, the Underwriters will
acquire good and marketable title to such Shares free
and clear of all liens, charges, claims, security
interests, encumbrances, pledges, shareholders'
agreements, voting trusts and any other restrictions
whatsoever.
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(B) To the best of such counsel's knowledge
after due inquiry, the execution, delivery and
performance of this Agreement, the Power of Attorney
and the Custody Agreement and the consummation of the
transactions to be performed by each such Selling
Shareholder contemplated hereby and thereby
(including, without limitation, the delivery and sale
of the Shares to be delivered and sold by such
Selling Shareholder hereunder and thereunder), will
not give rise to a right to terminate or accelerate
the due date of any payment due under, or conflict
with or result in the breach or violation of any term
or provision of, or constitute a default (or any
event which with notice or lapse of time, or both,
would constitute a default) under, or require consent
or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon
any properties or assets of such Selling Shareholder
pursuant to the terms of any indenture, mortgage,
deed of trust, note or other agreement or instrument
to which such Selling Shareholder is a party or bound
or by which it or any of such Selling Shareholder's
assets, properties or businesses are subject or
affected, or any franchise, license, consent,
certificate, permit, judgment, decree, order, notice,
plan, code, statute, rule or regulation of which such
counsel is aware or result in the creation of
imposition of any lien, charge, claim, encumbrance,
security interest or restriction whatsoever upon the
Shares to be sold by such Selling Shareholder.
(C) No consent, approval, authorization,
license, certificate, permit or order of any court,
governmental or regulatory agency, authority or body
or financial institution is required in connection
with the performance of this Agreement by each
Selling Shareholder or the consummation of the
transactions contemplated hereby, by the Power of
Attorney or by the Custody Agreement, including the
delivery and sale of the Shares to be delivered and
sold by such Selling Shareholder, except such as have
been obtained under the Securities Act and such as
may be required under state securities or Blue Sky
laws in connection with the purchase and distribution
of the Shares by the several Underwriters.
(D) Each of this Agreement, the Power of
Attorney and the Custody Agreement has been duly and
validly authorized, executed and delivered by each
Selling Shareholder and constitutes a legal, valid,
and binding obligation of such Selling Shareholder,
enforceable against such Selling Shareholder in
accordance with its terms, except (i) as such
enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii)
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to the extent that rights to indemnity or
contribution under this Agreement may be limited by
Federal and state securities laws or the public
policy underlying such laws.
(E) Such counsel does not know that any of
the representations and warranties of the Selling
Shareholders contained in this Agreement are not true
or correct or that any of the covenants and
agreements herein contained to be performed on the
part of the Selling Shareholders or any of the
conditions herein contained, or set forth in the
Registration Statement and the Prospectus, to be
fulfilled as complied with by the Selling
Shareholders, have not been or will not be duly and
timely performed, fulfilled or complied with.
To the extent deemed advisable by such counsel, they
may rely as to matters of fact on certificates of the Selling
Shareholders and on the opinions of other counsel satisfactory
to the Representatives as to matters which are governed by
laws other than the laws of the State of California, the State
of New York, the General Corporation Law of the State of
Delaware and the Federal laws of the United States; provided
that such counsel shall state that in their opinion the
Underwriters and they are justified in relying on such other
opinions. Copies of such certificates and other opinions shall
be furnished to the Representatives and counsel for the
Underwriters.
In addition, such counsel shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
Representatives and representatives of the independent
certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although
such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and the
Prospectus (except as specified in the foregoing opinion), on
the basis of the foregoing, no facts have come to the
attention of such counsel which lead such counsel to believe
that the Registration Statement at the time it became
effective (except with respect to the financial statements and
notes and schedules thereto and other financial data, as to
which such counsel need express no belief) 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 as amended or supplemented (except with respect to
the financial statements and notes and schedules thereto and
other financial data, as to which such counsel need express no
belief) on the date thereof contained any untrue statement of
a material fact or omitted to state a material fact necessary
in order to make
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the statements therein, in the light of the circumstances
under which they were made, not misleading.
(h) All proceedings taken in connection with the sale of the
Firm Shares and the Option Shares as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives
and their counsel and the Underwriters shall have received from Xxxx,
Scholer, Fierman, Xxxx & Handler, LLP a favorable opinion, addressed to
the Representatives and dated each Closing Date, with respect to the
Shares, the Registration Statement and the Prospectus, and such other
related matters, as the Representatives may reasonably request, and the
Company shall have furnished to Xxxx, Scholer, Fierman, Xxxx & Handler,
LLP such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(i) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives, and dated such
Closing Date, of an executive officer of the Company to the effect that
the signer of such certificate has reviewed and understands the
provisions of Section 517.075 of the Florida Statutes, and represents
that the Company has complied, and at all times will comply, with all
provisions of Section 517.075 and further, that as of such Closing
Date, neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba.
(j) The Representatives shall have received from each of the
shareholders listed on Schedule III hereto and each director and
executive officer of the Company the enforceable written agreements
described in Section 4(p).
(k) The Company shall have furnished or caused to be furnished
to the Representatives such further certificates and documents as the
Representatives shall have reasonably requested.
(l) At each Closing Date, the Shares shall have been approved
for listing on the Nasdaq National Market.
7. Covenants of the Company. (A) The Company covenants and agrees as
follows:
(a) The Company shall prepare the Prospectus in a form
approved by the Representatives and file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than the Commission's
close of business on the second business day following the execution
and delivery of this Agreement, or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act, and shall
promptly advise the Representatives (i) when any amendment to the
Registration Statement shall have become effective, (ii) of any
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request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information, (iii) of
the prevention or suspension of the use of any preliminary prospectus
or the Prospectus or of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company shall not file any amendment of the
Registration Statement or supplement to the Prospectus unless the
Company has furnished the Representatives with a copy for their review
prior to filing and shall not file any such proposed amendment or
supplement to which the Representatives reasonably object. The Company
shall use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Securities Act and the Rules, 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 the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Securities Act or the Rules, the Company
promptly shall prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 7(A), an amendment or
supplement which shall correct such statement or omission or an
amendment which shall effect such compliance.
(c) The Company shall make generally available to its security
holders and to the Representatives as soon as practicable, but not
later than 45 days after the end of the 12-month period beginning at
the end of the fiscal quarter of the Company during which the Effective
Date occurs (or 90 days if such 12-month period coincides with the
Company's fiscal year), an earnings statement (which need not be
audited) of the Company, covering such 12-month period, which shall
satisfy the provisions of Section 11(a) of the Securities Act or Rule
158 of the Rules.
(d) The Company shall furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including all exhibits thereto and amendments
thereof) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and all amendments thereof and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Securities Act or the Rules, as many copies of any
preliminary prospectus and the Prospectus and any amendments thereof
and supplements thereto as the Representatives may reasonably request.
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(e) The Company shall use its best efforts to assist the
Representatives and their counsel in endeavoring to qualify the Shares
for offer and sale under the laws of such jurisdictions as the
Representatives may designate and shall maintain such qualifications in
effect so long as required for the distribution of the Shares;
provided, however, that the Company shall not be required in connection
therewith, as a condition thereof, to qualify as a foreign corporation
or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(f) For a period of five years after the date of this
Agreement, the Company shall supply to the Representatives, and to each
other Underwriter who may so request in writing, copies of such
financial statements and other periodic and special reports as the
Company may from time to time distribute generally to the holders of
any class of its capital stock and to furnish to the Representatives a
copy of each annual or other report it shall be required to file with
the Commission (including the Report on Form SR required by Rule 463 of
the Rules).
(g) Without the prior written consent of the Representatives,
for a period of 180 days after the date of this Agreement, the Company
shall not, directly or indirectly, Transfer, or offer, contract or
otherwise agree to Transfer, any Common Stock, or any other securities
convertible into or exchangeable for Common Stock or any other equity
securities of the Company, except for (i) the issuance of Common Stock
pursuant to stock options outstanding on the date hereof or the
issuance of Common Stock pursuant to the Company's [1996 STOCK OPTION
PLAN] (the "Plans"); and (ii) the issuance of Common Stock in
connection with any acquisition of another entity. In the event that
during this period, (i) any Common Stock is issued pursuant to the
Plans; (ii) any Common Stock is issued in connection with any
acquisition of another entity; or (iii) any registration is effected on
Form S-8 or on any successor form, the Company shall obtain the
enforceable written agreement of such grantee or purchaser or holder of
such securities that, for a period of 180 days after the date of this
Agreement, such person will not directly or indirectly, without the
prior written consent of the Representatives, Transfer, or offer,
contract or otherwise agree to Transfer, or exercise any registration
rights with respect to, any Common Stock (or any other securities
convertible into or exchangeable for any Common Stock, or any other
equity securities) owned by such person.
(h) The Company shall cause each director and executive
officer of the Company and each shareholder set forth on Schedule III
to this Agreement to deliver to the Representatives his or her
enforceable written agreement that, except, in the case of a Selling
Shareholder, for the sale of the Shares to be sold by such Selling
Shareholder pursuant to the Registration Statement, he or she will not,
without the prior written consent of the Representatives, directly or
indirectly, Transfer, or offer, contract or otherwise agree to
Transfer, any Common Stock or any other securities convertible into or
exchangeable for Common Stock
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or any other equity securities of the Company until 180 days after the
date of this Agreement, except for (i) sales to the several
Underwriters pursuant to this Agreement or (ii) pursuant to will or the
laws of intestate succession, provided the transferee thereof agrees in
writing to be bound by such restrictions.
(i) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws and by
the Nasdaq (including any required registration under the Exchange
Act).
(j) The Company shall file timely and accurate reports in
accordance with the provisions of Florida Statutes Section 517.075, or
any successor provision, and any regulations promulgated thereunder, if
at any time after the Effective Date, the Company or any of its
affiliates commences engaging in business with the government of Cuba
or any person or affiliate located in Cuba.
(k) The Company will apply the net proceeds from the offering
of the Shares in the manner set forth under "Use of Proceeds" in the
Prospectus.
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and expenses
incident to the public offering of the Shares and the performance of
the obligations of the Company and of the Selling Shareholders under
this Agreement including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statement
including all exhibits thereto, each preliminary prospectus, the
Prospectus, all amendments and supplements to the Registration
Statement, the Prospectus, and the printing, filing and distribution of
this Agreement; (ii) the fees and disbursements of counsel for the
Company and the Selling Shareholders and of the Company's independent
public accountants; (iii) the preparation and delivery of certificates
for the Shares to the Underwriters; (iv) the registration or
qualification of the Shares for offer and sale under the securities or
Blue Sky laws of the various jurisdictions referred to in Section
7(A)(e), including the reasonable fees and disbursements of counsel for
the Underwriters in connection with such registration and qualification
and the preparation, printing, distribution and shipment of preliminary
and supplementary Blue Sky memoranda; (v) the furnishing (including
costs of shipping and mailing) to the Representatives and to the
Underwriters of copies of each preliminary prospectus, the Prospectus
and all amendments or supplements to the Prospectus, and of the several
documents required by this Section to be so furnished, as may be
reasonably requested for use in connection with the offering and sale
of the Shares by the Underwriters or by dealers to whom Shares may be
sold; (vi) the filing fees of the National Association of Securities
Dealers, Inc. in connection with its review of the terms of the public
offering; (vii) the furnishing
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(including costs of shipping and mailing) to the Representatives and to
the Underwriters of copies of all reports and information required by
Section 7(A)(f); (viii) inclusion of the Common Stock for quotation on
the Nasdaq National Market; and (ix) all transfer taxes, if any, with
respect to the sale and delivery of the Shares by the Company and the
Selling Shareholders to the Underwriters. Subject to the provisions of
Section 10, the Underwriters agree to pay, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the
Company pursuant to the preceding sentence, including, without
limitation, the fees and disbursements of counsel for the Underwriters.
8. Indemnification.
(a) The Company and each Selling Shareholder agree, jointly
and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages and liabilities, joint or
several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to which
they, or any of them, may become subject under the Securities Act, the
Exchange Act, the Rules or other Federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto, or arise out of or are
based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that such indemnity shall
not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person by such
Underwriter if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or
supplement, and was contained in the last paragraph of the cover page
of the Prospectus, in the paragraph relating to stabilization on the
inside front cover page of the Prospectus or under the caption
"Underwriting" in the Prospectus (to the extent such statements relate
to the Underwriters). Notwithstanding the foregoing, the liability of
each Selling Shareholder pursuant to the provisions of this Section
8(a) shall be limited to an amount equal to the aggregate net proceeds
received by such Selling Shareholder from the sale of the Shares sold
by such Selling Shareholder hereunder. This indemnity agreement will be
in addition to any liability which the Company and each Selling
Shareholder may otherwise have.
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(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Shareholders, each
person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
each director of the Company, and each officer of the Company who signs
the Registration Statement, to the same extent as the foregoing
indemnities from the Company or such Selling Shareholder to each
Underwriter, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which was made in any
preliminary prospectus, the Registration Statement or the Prospectus,
or any amendment thereof or supplement thereto, and was contained in
the last paragraph of the cover page of the Prospectus, in the
paragraph relating to stabilization on the inside front cover page of
the Prospectus or under the caption "Underwriting" in the Prospectus
(to the extent such statements relate to the Underwriters); provided,
however, that the obligation of each Underwriter to indemnify the
Company or any Selling Shareholder (including any controlling person,
director or officer thereof), as the case may be, shall be limited to
the net proceeds received by the Company or the Selling Shareholder, as
the case may be, from such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an indemnifying party or
parties under this Section , notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a copy of
all papers served. The indemnification provided for in Section 8(a) or
8(b) shall be limited for any party who shall fail to give notice as
provided in this Section 8(c) to the extent the indemnifying party was
materially prejudiced by the failure to give such notice, if the party
to whom notice was not given was unaware of the proceeding to which
such notice would have related but the omission to so notify such
indemnifying party of any such action, suit or proceeding shall not
relieve it from any liability that it may have to any indemnified party
for contribution or otherwise than under this Section . In case any
such action, suit or proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel 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 and the approval
by the indemnified party of such counsel, the indemnifying party shall
not be liable to such indemnified party for any legal or other
expenses, except as provided below and except for the reasonable costs
of investigation subsequently incurred by such indemnified party in
connection with the defense thereof. The indemnified party shall have
the right to employ its counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the
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employment of counsel by such indemnified party has been authorized in
writing by the indemnifying parties, (ii) the indemnified party shall
have reasonably concluded that there may be a conflict of interest
between the indemnifying parties and the indemnified party in the
conduct of the defense of such action (in which case the indemnifying
parties shall not have the right to direct the defense of such action
on behalf of the indemnified party) or (iii) the indemnifying parties
shall not have employed counsel, as provided above, to assume the
defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any
action, suit, proceeding or claim effected without its written consent.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 8(a) or 8(b) for any reason is unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b), then each indemnifying
party shall contribute to the aggregate losses, claims, damages and liabilities
(including any investigation, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted) to which the indemnified party may be subject
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Shareholders on the one hand and the Underwriters
on the other from the offering of the Shares or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Company and the Selling Shareholders on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Shareholders and the Underwriters shall be deemed to be in the same
proportion as (x) the total proceeds from the offering (net of underwriting
discounts but before deducting expenses) received by the Company or the Selling
Shareholders, as set forth in the table on the cover page of the Prospectus,
bear to (y) the underwriting discounts received by the Underwriters, as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company, the Selling Shareholders or the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact related to information supplied by the Company, the Selling
Shareholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 9, (i) in no case shall any Underwriter (except
as may be provided in the Agreement Among Underwriters) be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder less the
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amount of any damages which such Underwriter has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission which was made in any preliminary prospectus, the Registration
Statement or the Prospectus, or any amendment thereof or supplement thereto; and
(ii) the Company shall be liable and responsible for any amount in excess of the
amount set forth in clause (i) of this sentence; and (iii) in no case shall any
Selling Shareholder be liable and responsible for any amount in excess of the
aggregate net proceeds of the sale of the Shares received by such Selling
Shareholder hereunder; provided, however, that 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. For purposes of this Section 9, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as such Underwriter and each person, if any, who controls the
Company within the meaning of the Section 15 of the Securities Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i), (ii)
and (iii) in the immediately preceding sentence of this Section 9. 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 , notify such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom contribution may be
sought 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 . No party shall be liable for contribution with respect to
any action, suit, proceeding or claim settled without its written consent. The
Underwriters' obligations to contribute pursuant to this Section 9 are several
in proportion to their respective underwriting commitments and not joint.
10. Termination. This Agreement may be terminated with respect to the
Shares to be purchased on a Closing Date by the Representatives notifying the
Company and the Selling Shareholders at any time:
(a) in the absolute discretion of the Representatives at or
before any Closing Date: (i) if on or prior to such date, any domestic
or international event or act or occurrence has materially disrupted,
or in the opinion of the Representatives will in the future materially
disrupt, the securities markets; (ii) if the Company [OR ITS
SUBSIDIARY] shall have sustained a loss or interference with its
business by fire, flood, accident, hurricane, earthquake, theft,
sabotage or other calamity or malicious act which is material to the
Company [AND THE SUBSIDIARY, TAKEN AS A WHOLE,] whether or not said
loss shall have been insured, or by court or governmental action, order
or decree which will, in the opinion of the Representatives, make it
inadvisable or impractical to proceed with the offering; (iii) if there
has been, since the respective dates as of which information is given
in the Prospectus, any material adverse change in the assets or
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properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company [AND ITS SUBSIDIARY, TAKEN AS A
WHOLE,] whether or not arising in the ordinary course of business; (iv)
if there has occurred any new outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the
judgment of the Representatives, inadvisable or impractical to proceed
with the offering; (v) if there shall be such a material adverse change
in general financial, political or economic conditions in the United
States or elsewhere or the effect of international conditions on the
financial markets in the United States is such as to make it, in the
judgment of the Representatives, inadvisable or impractical to proceed
with the offering; (vi) if trading in the Shares has been suspended by
the Commission or trading generally on the New York Stock Exchange,
Inc., on the American Stock Exchange, Inc. or Nasdaq has been suspended
or limited, or minimum or maximum ranges for prices for securities
shall have been fixed, or maximum ranges for prices for securities have
been required, by said exchanges or automated quotation system or by
order of the Commission, the National Association of Securities
Dealers, Inc., or any other governmental or regulatory agency,
authority or body; or (vii) if a banking moratorium has been declared
by any state or Federal agency, authority, or body, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 6 shall not have been fulfilled when and as
required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, neither the Company nor any of the Selling Shareholders
shall be under any liability to any Underwriter (except as otherwise
provided in Section 7(B) and Sections 8 and 9, and no Underwriter shall
be under any liability to the Company or the Selling Shareholders
except that (y) if this Agreement is terminated by the Representatives
because of any failure, refusal or inability on the part of the Company
or the Selling Shareholders to comply with the terms or to fulfill any
of the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the reasonable
fees and disbursements of their counsel) incurred by them in connection
with the proposed purchase and sale of the Shares or in contemplation
of performing their obligations hereunder and (z) no Underwriter who
shall have failed or refused to purchase the Shares agreed to be
purchased by it under this Agreement, without some reason sufficient
hereunder to justify cancellation or termination of its obligations
under this Agreement, shall be relieved of liability to the Company,
the Selling Shareholders or to the other Underwriters for damages
occasioned by its failure or refusal.
11. Substitution of Underwriters. If one or more of the Underwriters
shall fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 10) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to
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purchase such Shares or make such other arrangements as the Representatives may
deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares
that all the Underwriters are obligated to purchase on such Closing
Date, then each of the nondefaulting Underwriters shall be obligated to
purchase such Shares on the terms herein set forth in proportion to
their respective obligations hereunder; provided, that in no event
shall the maximum number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 11
by more than one-ninth of such number of Shares without the written
consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date,
then the Company shall be entitled to an additional business day within
which it may, but is not obligated to, find one or more substitute
underwriters reasonably satisfactory to the Representatives to purchase
such Shares upon the terms set forth in this Agreement.
In any such case, either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a
period of not more than five business days in order that necessary
changes and arrangements (including any necessary amendments or
supplements to the Registration Statement or Prospectus) may be
effected by the Representatives and the Company. If the number of
Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none
of the nondefaulting Underwriters or the Company shall make
arrangements pursuant to this Section within the period stated for the
purchase of the Shares that the defaulting Underwriters agreed to
purchase, this Agreement shall terminate with respect to the Shares to
be purchased on such Closing Date without liability on the part of any
nondefaulting Underwriter to the Company or the Selling Shareholders,
and without liability on the part of the Company or the Selling
Shareholders, except in both cases as provided in Sections 7(B), 8, 9
and 10. The provisions of this Section shall not in any way affect the
liability of any defaulting Underwriter to the Company, the Selling
Shareholders or to the nondefaulting Underwriters arising out of such
default. A substitute underwriter hereunder shall become an Underwriter
for all purposes of this Agreement.
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12. Submission to Jurisdiction. The Company hereby irrevocably (i)
agrees that any legal suit, action or proceeding against the Company brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby, including any
legal suit, action or proceeding to enforce the provisions of Sections 8 and 9
hereof, may be instituted in any United States or State court in the County of
New York, (ii) waives, to the fullest extent it may effectively do so, any
objection which it may have now or hereafter based on forum non convenient or to
the laying of venue of any such suit, action or proceeding, and (iii) expressly
consents and submits to the exclusive jurisdiction of any such court in any such
suit, action or proceeding. The Company has designated and appointed
__________________ (or any successor corporation) (the "Authorized Agent"), as
such person's authorized agent upon whom process may be served in any such suit,
action or proceeding at the office of such agent at ______________________ (or
such other address in the Borough of Manhattan, the City of New York, as such
person may designate by written notice received by you). The Company represents
and warrants that the Authorized Agent has agreed to act as such agent for
service of process and agrees to take any and all action, including the filing
of any and all documents and instruments, that may be necessary to continue such
appointments in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of said service to the Company mailed by
first class mail shall be deemed in every respect effective and valid personal
service of process upon the Company. Nothing herein shall affect the right of
any Underwriter or any person controlling any Underwriter to serve process in
any other manner permitted by law.
13. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its directors or
officers, of the Selling Shareholders and of the Underwriters set forth in or
made pursuant to this Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or the Selling Shareholders or any of the officers, directors or
controlling persons referred to in Sections 8 and 9 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 7(B), 8, 9
and 10 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Shareholders and their respective
successors and assigns, and, to the extent expressed herein, for the benefit of
persons controlling any of the Underwriters and the Company, and directors and
officers of the Company, and their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser of
Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed
or delivered or by telephone, telex or facsimile transmission if subsequently
confirmed in writing, (a) if to the Representatives, c/o Oppenheimer & Co.,
Inc., Oppenheimer Tower, World Financial Center, New
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York, New York 10281 Attention: ________________ (b) if to the Company, to its
agent for service as such agent's address appears on the cover page of the
Registration Statement; and (c) if to a Selling Shareholder, to the
Attorneys-in-Fact, c/o ___________________________________________.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflict of
laws.
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.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
VIASAT, INC.
By:
-------------------------------
Name:
Title:
SELLING SHAREHOLDERS NAMED ON
SCHEDULE II ANNEXED HERETO
By:
-------------------------------
Attorney-in-Fact for the Selling
Shareholders listed on Schedule II
annexed hereto
Confirmed:
XXXXXXXXXXX & CO., INC.
XXXXXXX & COMPANY, INC.
XXXXX, XXXXX & COMPANY
Acting severally on behalf of themselves and
as representatives of the several Underwriters
named in Schedule I annexed hereto.
By: XXXXXXXXXXX & CO., INC.
By:
------------------------------
Name:
Title:
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SCHEDULE I
Number of Firm
Name Shares to Be Purchased
---- ----------------------
Xxxxxxxxxxx & Co., Inc.
Xxxxxxx & Company, Inc.
Xxxxx, Xxxxx & Company
---------
Total Shares:
=========
1
40
SCHEDULE II
SELLING SHAREHOLDERS
Selling Shareholder Number of Firm Shares to be Sold
------------------- --------------------------------
---------
Total Shares:
=========
1
41
SCHEDULE III
SHAREHOLDERS EXECUTING CERTAIN
AGREEMENTS PURSUANT TO SECTION 7(A)(h)
1
