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EXHIBIT 1.2
XXXXXXXXXX.XXX, INC.
0000 XXXXX XXXX XXXXXX, XXXXX 000
XXXXXX, XXXXXXXX 00000
July __, 1999
INTUIT INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Ladies and Gentlemen:
Xxxxxxxxxx.xxx, Inc., a Delaware corporation (the "COMPANY"), hereby
confirms its agreement to issue and sell shares (the "SHARES") of its authorized
but unissued Common Stock, $0.001 par value per share (the "COMMON STOCK"), to
Intuit Inc., a Delaware corporation ("INTUIT"). Unless otherwise defined herein,
terms with initial letters capitalized shall have their respective meanings as
set forth in that certain Underwriting Agreement (the "UNDERWRITING AGREEMENT")
between the Company and Hambrect & Xxxxx LLC ("H&Q"), acting for itself and on
behalf of the other Underwriters.
1. PURCHASE OF THE SHARES BY INTUIT. On the basis of the
representations and warranties and subject to the terms and conditions herein
set forth, the Company agrees to issue and sell to Intuit, and Intuit agrees to
purchase from the Company, an aggregate of [XXXXXXX] Shares [SHARES HAVING AN
AGGREGATE PURCHASE PRICE OF THREE MILLION DOLLARS ($3,000,000)] at a per Share
purchase price equal to [$XX.XX] [THE "INITIAL PUBLIC OFFERING PRICE" AS SET
FORTH ON THE COVER PAGE OF THE DEFINITIVE PROSPECTUS].
2. DELIVERY OF AND PAYMENT FOR THE SHARES.
(a) Delivery of certificate(s) for the Shares, and payment
therefor, shall (i) be made in tandem with a closing of the transactions
contemplated by the Underwriting Agreement (the "Closing") and (ii) occur at the
offices of Xxxxxxxx & Xxxxxx, 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, or at
such time and place as shall be agreed upon in writing by the Company and
Intuit.
(b) Payment for the Shares shall be made by Intuit to the
Company upon delivery of certificate(s) for the Shares to Intuit. Certificate(s)
for the Shares shall be registered in Intuit's name.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company hereby represents, warrants and covenants to Intuit as follows:
(a) The Company has been duly incorporated and is validly
existing as a
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corporation in good standing under the laws of the jurisdiction of its
incorporation, has full corporate power and authority to own or lease its
properties and conduct its business as described in the Registration Statement
and the Prospectus and as being conducted, and is duly qualified as a foreign
corporation and in good standing in all jurisdictions in which the character of
the property owned or leased or the nature of the business transacted by it
makes qualification necessary (except where the failure to be so qualified would
not have a material adverse effect on the business, properties, financial
condition or results of operations of the Company).
(b) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
materially adverse change in the business, properties, financial condition or
results of operations of the Company, whether or not arising from transactions
in the ordinary course of business, other than as set forth in the Registration
Statement and the Prospectus, and since such dates, except in the ordinary
course or business, the Company has not entered into any material transaction
not referred to in the Registration Statement and the Prospectus.
(c) The Registration Statement has been declared effective under
the Securities Act, and no post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. The Registration
Statement and the Prospectus comply, and on the Closing Date the Prospectus will
comply, in all material respects with the provisions of the Securities Act and
the Exchange Act as well as the rules and regulations of the Commission
thereunder. On the Effective Date, the Registration Statement did not contain
any untrue statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading. On the Effective Date the Prospectus did not, and on the
Closing Date the Prospectus will not, contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Shares, when issued and sold to Intuit as provided herein,
(i) will be duly and validly issued, fully paid and nonassessable, (ii)
will conform to the description thereof in the Prospectus and (iii) will not be
subject to any preemptive rights, rights of first refusal or rights of co-sale
by operation of law, under the Certificate of Incorporation or Bylaws of the
Company or otherwise which have not been waived. No further approval or
authority of the stockholders or the Board of Directors of the Company will be
required for the issuance and sale of the Shares as contemplated herein.
(e) The Shares have been registered under the Registration
Statement and, upon purchase by Intuit as contemplated hereby, will be freely
tradable by Intuit without restriction or further registration under the
Securities Act.
(f) The Shares have been duly authorized for listing by the
Nasdaq National Market upon official notice of issuance.
(g) The certificate(s) evidencing the Shares will be in due and
proper legal form.
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(h) Attached hereto as Schedule I is a capitalization table of
the Company setting forth all holders of securities of the Company as of
immediately prior to the Closing Date.
(i) The Company owns and possesses all right, title and interest
in and to all trademarks, copyrights and other proprietary rights
("TRADE RIGHTS") material to the business of the Company. The Company has not
received any written notice of infringement, misappropriation or conflict from
any third party as to such Trade Rights and the Company has not infringed,
misappropriated or otherwise conflicted with material Trade Rights of any third
parties.
(j) The conduct of the business of the Company is in compliance
in all respects with applicable federal, state, local and foreign laws and
regulations, except where the failure to be in compliance would not have a
material adverse effect upon the condition (financial or otherwise) or results
of operations of the Company.
4. TERMINATION. This Agreement may be terminated by Intuit at any time
prior to the Closing by giving written notice to the Company if after the date
of this Agreement:
(a) trading in the Common Stock shall have been suspended; or
(b) there shall have occurred (i) the engagement in hostilities or an
escalation of major hostilities by the United States or the declaration of war
or a national emergency by the United States, (ii) any outbreak of hostilities
or other national or international calamity or crisis or change in economic or
political conditions which, in Intuit's reasonable opinion, has a material
adverse effect of the market for securities in the United States, (iii)
suspension of trading in securities generally or a material adverse decline in
value of trading in securities generally on the New York Stock Exchange, the
American Stock Exchange, the Nasdaq Stock Market, or limitations on prices
(other than limitations on hours or number of days of trading) for securities on
either such exchange or system, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of, or
commencement of any proceeding or investigation by, any court, legislative body,
agency or other governmental authority which in Intuit's reasonable opinion
materially and adversely affects or will materially or adversely effect the
business or operations of the Company, (v) declaration of a banking moratorium
by either federal or New York State authorities or (vi) the taking of action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in Intuit's reasonable opinion has a material adverse
effect of the securities markets in the United States.
5. CONDITIONS OF INTUIT'S OBLIGATIONS. The obligations of Intuit to
purchase and pay for the Shares shall be subject to the performance by the
Company of all its obligations to be performed hereunder at or prior to the
Closing Date, and to the following further conditions:
(a) The Registration Statement shall have become effective and
no stop order suspending the effectiveness thereof shall have been issued and no
proceedings therefor shall be pending or threatened by the Commission.
(b) Intuit shall have received from Xxxxxxxx & Xxxxxx, counsel
for the
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Company, an opinion, addressed to Intuit and dated the Closing Date, covering
the matters set forth in Annex A hereto.
(c) The Shares shall have been registered under the
Registration Statement and shall be freely tradable by Intuit without
restriction or further registration under the Securities Act.
(d) The Shares shall have been duly authorized for listing by
the Nasdaq National Market upon official notice of issuance.
(e) Intuit shall have received confirmation from H&Q or the
Company that (i) a closing of the transactions contemplated by the Underwriting
Agreement shall have occurred or be occurring in tandem with the Closing and
(ii) all of the agreements, obligations and conditions contained in the
Underwriting Agreement that are required to be performed or complied with as of
or prior to a closing of the transactions contemplated by the Underwriting
Agreement shall have been performed or complied with.
(f) Intuit shall be satisfied that the representations and
warranties of the Company herein are true and correct in all material respects
as of the Closing Date.
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS. The obligation of the
Company to deliver the Shares shall be subject to the conditions that (a) the
Registration Statement shall have become effective and (b) no stop order
suspending the effectiveness thereof shall be in effect and no proceedings
therefor shall be pending or threatened by the Commission.
7. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telecopy and, if to Intuit, shall be mailed,
telecopied or delivered to Intuit at its office, 0000 Xxxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxxxx 00000, telecopy: 000-000-0000, Attention: Xxxxxxx Xxxxx, Vice
President, Business Development; and if to the Company, shall be mailed,
telecopied or delivered to it at its office, 0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, telecopy: (000) 000-0000, Attention: Xxxxxx Xxxxx, Chief
Executive Officer. All notices given by telecopy shall be promptly confirmed by
mail.
8. MISCELLANEOUS. The representations, warranties and covenants in this
Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of
Intuit or the Company or their respective directors or officers, and (c)
delivery and payment for the Shares under this Agreement. This Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
California.
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Please sign and return to the Company the enclosed duplicate of this
letter, whereupon this letter will become a binding agreement between the
Company and Intuit in accordance with its terms.
Very truly yours,
XXXXXXXXXX.XXX, INC.
By:
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Xxxxxx X. Xxxxx,
Chief Executive Officer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
INTUIT INC.
By:
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Xxxxxxx Xxxxx
Vice President,
Business Development
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SCHEDULE I
CAPITALIZATION TABLE
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ANNEX A
MATTERS TO BE COVERED IN THE OPINION OF XXXXXXXX & XXXXXX
COUNSEL FOR THE COMPANY
1. The Agreement has been duly authorized, executed and delivered by
the Company.
2. The Shares (i) have been duly and validly issued and are fully paid
and nonassessable, (ii) conform to the description thereof in the Prospectus and
(iii) are not subject to any preemptive rights, rights of first refusal or
rights of co-sale by operation of law, under the Certificate of Incorporation or
Bylaws of the Company or otherwise which have not been waived.
3. The Registration Statement has become effective under the Securities
Act and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or suspending or preventing the use
of the Prospectus is in effect and no proceedings for that purpose have been
instituted or are pending or contemplated by the Commission.
4. The Registration Statement and the Prospectus (except as to the
financial statements and schedules and other financial data contained therein,
as to which we express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and with the rules and regulations
of the Commission thereunder.
5. The Shares have been registered under the Registration Statement and
are freely tradable by Intuit without restriction or further registration under
the Securities Act.
6. The Shares are duly authorized for listing by the Nasdaq National
Market upon official notice of issuance.
7. The certificate(s) evidencing the Shares are in due and proper legal
form.
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