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EXHIBIT 1.02
Dated ____________, 1998
HNC SOFTWARE INC.
UNDERWRITING AGREEMENT
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HNC SOFTWARE INC.
2,100,000 Shares Plus an Option to Purchase up to
315,000 Additional Shares to Cover Over-allotments
Common Stock
UNDERWRITING AGREEMENT
___________, 1998
To:
DEUTSCHE XXXXXX XXXXXXXX INC.
and the other Representatives
named in Schedule I hereto
of the several Underwriters
named in Schedule II hereto
c/o Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
HNC Software Inc., a Delaware corporation (the "Company"), and the
persons listed in Schedule III hereto (the "Selling Stockholders") hereby
confirm their agreement with the several underwriters named in Schedule II
hereto (the "Underwriters"), for whom you have been duly authorized to act as
representatives (the one or more firms acting in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be references to the
Underwriters.
Section 1. Underwriting. Subject to the terms and conditions contained herein:
(a) The Company proposes to issue and sell 20,000 shares of common
stock, par value $0.001 per share (the "Common Stock"), of the Company and the
Selling Shareholders propose to sell 2,080,000 shares of Common Stock (said
shares to be issued and sold by the Company and sold by the Selling Stockholders
collectively referred to herein as the "Firm Shares") to the several
Underwriters. The Selling Stockholders also propose to sell to the several
Underwriters not more than 315,000 additional shares (the "Option Shares"), if
requested by the Representatives as provided in Section 2(b) hereof. The Firm
Shares and the Option Shares are sometimes collectively referred to herein as
the "Shares".
(b) Upon your authorization of the release of the Firm Shares, the
Underwriters propose to make a public offering (the "Offering") of the Firm
Shares upon the terms set forth in the Prospectus (as defined below) as soon
after the Registration Statement (as defined below) and this Agreement have
become effective as in the Representatives' sole judgment is advisable. As used
in this Agreement, the term "Effective Date"
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shall mean each date that the registration statement and any post-effective
amendment or amendments thereto became or become effective; the term "Original
Registration Statement" means the registration statement referred to in Section
5(a)(i) below, as amended at the time when it was or is declared effective,
including incorporated documents, financial schedules and exhibits thereto,
including any Rule 430A Information (as defined below) deemed to be included
therein at the Effective Date as provided by Rule 430A and, in the event any
post-effective amendment thereto becomes effective prior to the Closing Date (as
defined below), also means such registration statement as so amended; the term
"Rule 430A Information" means information permitted to be omitted from the
Original Registration Statement when it becomes effective pursuant to Rule 430A;
the term "Rule 462(b) Registration Statement" means any registration statement
filed with the Commission pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Securities Act") (including the Registration Statement
and any Preliminary Prospectus (as defined below) or Prospectus incorporated
therein at the time such Registration Statement becomes effective); the term
"Registration Statement" includes both the Original Registration Statement and
any Rule 462(b) Registration Statement; the term "Basic Prospectus" shall mean
the prospectus referred to in Section 5(a)(i) below contained in the
Registration Statement at the Effective Date including, in the case of a Rule
430A Offering (as defined below), any Preliminary Prospectus; the term
"Preliminary Prospectus" means the preliminary prospectus supplement to the
Basic Prospectus used prior to the filing of the Prospectus; the term
"Prospectus" means:
(i) if the Company relies on Rule 434 under the Securities Act,
the Term Sheet (as defined below) relating to the Shares that is first filed
pursuant to Rule 424(b) under the Securities Act, together with the Preliminary
Prospectus identified therein that such Term Sheet supplements;
(ii) the prospectus supplement to the Basic Prospectus first
filed with the Commission pursuant to Rule 424(b) under the Securities Act,
together with the Basic Prospectus;
(iii) if, in the case of a Rule 430A Offering, no prospectus
supplement is required to be filed pursuant to Rule 424(b) under the Securities
Act, the form of final prospectus supplement to the Basic Prospectus, including
the Basic Prospectus, included in the Registration Statement at the Effective
Date; or
(iv) for purposes of the representations and warranties in
Section 5 hereof, if the prospectus is not in existence, the Basic Prospectus
and the most recent Preliminary Prospectus, if any.
"Rule 415", "Rule 424" and "Rule 430A" refer to such rules or regulations under
the Securities Act, and the term "Term Sheet" means any term sheet that
satisfies the requirements of Rule 434 under the Securities Act. Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange Act after
the Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference. A "Rule 430A Offering" means an
offering of securities which is intended to commence promptly after the
effective date of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A Information) with
respect to the securities so offered must be included in such registration
statement at the effective date thereof. A "Rule 415 Offering" means an offering
of securities pursuant to Rule 415 which does not commence promptly after the
effective
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date of a registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at the
effective date thereof with respect to the securities so offered. Whether the
offering of the Shares is a Rule 430A Offering or a Rule 415 Offering shall be
set forth in Schedule I hereto.
(c) For purposes of this Agreement, all references to the Registration
Statement, any Preliminary Prospectus, the Prospectus, the Term Sheet or the
Basic Prospectus, or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
Section 2. Purchase and Closing. (a) On the basis of the representations,
warranties, agreements and covenants herein contained and subject to the terms
and conditions herein set forth, the Company agrees to issue and sell, and the
Selling Stockholders agree to sell, to each of the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company and
the Selling Stockholders, at the purchase price per Share set forth in Schedule
I hereto (the "Purchase Price"), the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule II hereto. Firm Shares shall be
registered by First National Bank of Boston in the name of the nominee of the
Depository Trust Company ("DTC"), Cede & Co. ("Cede & Co."), and credited to the
accounts of such of its participants as the Representatives shall request, upon
notice to the Company and the Selling Stockholders at least 48 hours prior to
the First Closing Date (as defined below), with any transfer taxes payable in
connection with the transfer of the Firm Shares to the Underwriters duly paid,
against payment by or on behalf of the Underwriters to the respective accounts
of the Company and the Selling Stockholders of the aggregate Purchase Price
therefor by wire transfer in immediately available funds. Delivery or registry
of and payment for the Firm Shares shall be made at the office of, on the date
and at the time specified in Schedule I hereto, or at such other place, time or
date as the Representatives and the Company may agree upon. Such time and date
of delivery against payment are herein referred to as the "First Closing Date",
and the implementation of all the actions described in this Section 2(a) is
herein referred to as the "First Closing".
(b) For the purpose of covering any over-allotments in connection with
the distribution and sale of the Firm Shares as contemplated by the Prospectus,
the Selling Stockholders hereby grant to the several Underwriters an option to
purchase, severally and not jointly, the Option Shares. The purchase price to be
paid for any Option Shares shall be the same as the Purchase Price for the Firm
Shares set forth above in paragraph (a) of this Section 2. The option granted
hereby may be exercised as to all or any part of the Option Shares from time to
time within thirty (30) days after the date of the Prospectus (or, if such 30th
day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange and the Nasdaq Stock Market's
National Market (the "Nasdaq National Market") are open for trading). The
Underwriters shall not be under any obligation to purchase any of the Option
Shares prior to the exercise of such option. The Representatives may from time
to time exercise the option granted hereby by giving notice in writing or by
telephone (confirmed in writing) to the Company and the Selling Stockholders
setting forth the aggregate number of Option Shares as to which the several
Underwriters are then exercising the option and the date and time for delivery
or registry of and payment for such Option Shares. Any such date of delivery or
registry shall be determined by the Representatives but shall not be earlier
than two business days or later than five business days after such exercise of
the option unless otherwise agreed to by the Company and the Representatives
and, in any event, shall not be earlier than the First Closing Date. The time
and date set forth in such notice, or such other time or date as the
Representatives, the Company and the Selling Stockholders may agree upon or as
the Representatives may determine pursuant to Section 2(a) hereof, is herein
called an "Option Closing Date" with respect to such Option Shares, and the
implementation of all the actions described in this Section 2(b) is herein
referred to as the "Option Closing". As used in this Agreement, the term
"Closing
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Date" means either the First Closing Date or any Option Closing Date, as
applicable, and the term "Closing" means either the First Closing or any Option
Closing, as applicable. If the option is exercised as to all or any portion of
the Option Shares, then either one or more certificates in definitive form for
such Option Shares shall be delivered or, if such Option Shares are to be held
through DTC, such Option Shares shall be registered and credited, on the related
Option Closing Date in the same manner, and upon the same terms and conditions,
set forth in paragraph (a) of this Section 2, except that reference therein to
the Firm Shares and the First Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Shares and Option Closing Date,
respectively. Upon exercise of the option as provided herein, the Selling
Stockholders shall become obligated to sell to each of the several Underwriters,
and, on the basis of the representations, warranties, agreements and covenants
herein contained and subject to the terms and conditions herein set forth, each
of the Underwriters (severally and not jointly) shall become obligated to
purchase from each Selling Stockholder, that number of Option Shares being
offered by such Selling Stockholder, as the case may be, which is in the same
proportion to the number of Option Shares set forth opposite the name of such
Selling Stockholder in Schedule III hereto as to which the several Underwriters
are then exercising the option, as the number of Firm Shares such Underwriter is
obligated to purchase is to the aggregate number of Firm Shares, as adjusted by
the Representatives in such manner as they deem advisable to avoid fractional
shares.
(c) The Company and the Selling Stockholders hereby acknowledge that the
payment of monies pursuant to Section 2(a) or 2(b) hereof (a "Payment") by or on
behalf of the Underwriters of the aggregate Purchase Price for any Shares does
not constitute closing of a purchase and sale of the Shares. Only execution and
delivery, by facsimile or otherwise, of a receipt for Shares by the Underwriters
indicates completion of the closing of a purchase of the Shares from the Company
and the Selling Stockholders. Furthermore, in the event that the Underwriters
make a Payment to the Company and the Selling Stockholders prior to the
completion of the closing of a purchase of Shares, the Company and the Selling
Stockholders hereby acknowledge that until the Underwriters execute and deliver
such receipt for the Shares, the Company and the Selling Stockholders will not
be entitled to the Payment and shall return the Payment to the Underwriters as
soon as practicable (by wire transfer of same-day funds) upon demand. In the
event that the closing of a purchase of Shares is not completed and the Payment
is not returned by the Company and the Selling Stockholders to the Underwriters
on the same day the Payment was received by the Company and the Selling
Stockholders, each of the Company and the Selling Stockholders (severally and
not jointly) agree to pay to the Underwriters in respect of each day the Payment
is not returned to any one of them, in same-day funds, interest on the amount of
such Payment not returned by such party in an amount representing the
Underwriters' cost of financing as reasonably determined by the Representatives.
(d) It is understood that any of you, individually and not as one of the
Representatives, may (but shall not be obligated to) make Payment on behalf of
any Underwriter or Underwriters for any of the Shares to be purchased by such
Underwriter or Underwriters. No such Payment shall relieve such Underwriter or
Underwriters from any of its or their obligations hereunder.
Section 3. Covenants.
(a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will:
(A) use its best efforts to cause the Registration Statement,
if not effective at the time of execution of this Agreement, and any amendments
thereto, to become effective as promptly as possible. If required, the Company
will file the Prospectus or any Term Sheet that constitutes a part thereof and
any
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amendment or supplement thereto with the Commission in the manner and within the
time period required by Rule 424(b) under the Securities Act. During any time
when a prospectus relating to the Shares is required to be delivered under the
Securities Act, the Company (x) will comply with all requirements imposed upon
it by the Securities Act and the rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Shares in accordance with the provisions hereof and of the
Prospectus, as then amended or supplemented, and (y) will not, prior to the
earlier of the date upon which the over-allotment option is fully exercised or
the date thirty (30) days after the date of Prospectus, file with the Commission
the Basic Prospectus, Term Sheet or any amendment or supplement to such Basic
Prospectus (including the Prospectus or any Preliminary Prospectus), any
amendment or supplement to such Term Sheet, any amendment to the Registration
Statement (including the amendment referred to in the second sentence of Section
5(a)(i)) or any Rule 462(b) Registration Statement unless the Representatives
previously have been advised of, and furnished with a copy within a reasonable
period of time prior to, the proposed filing and the Representatives shall have
given their consent to such filing which consent shall not be unreasonably
withheld. The Company will prepare and file with the Commission, in accordance
with the rules and regulations of the Commission, promptly upon request by the
Representatives or counsel for the Underwriters, any amendments to the
Registration Statement or amendments or supplements to the Prospectus that may
be necessary or advisable in connection with the distribution of the Shares by
the several Underwriters. The Company will advise the Representatives, promptly
after receiving notice thereof, of the time when the Registration Statement or
any amendment thereto has been filed or declared effective or the Prospectus or
Term Sheet or any amendment or supplement thereto has been filed and will
provide evidence satisfactory to the Representatives of each such filing or
effectiveness.
(B) without charge, provide (x) to the Representatives and to
counsel for the Underwriters, an executed and a conformed copy of the Original
Registration Statement and each amendment thereto or any Rule 462(b)
Registration Statement (in each case including exhibits thereto), (y) to each
other Underwriter, a conformed copy of the Original Registration Statement and
each amendment thereto or any Rule 462(b) Registration Statement (in each case
without exhibits thereto), and (z) so long as a prospectus relating to the
Shares is required to be delivered under the Securities Act, as many copies of
each Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto as the Representatives may reasonably request. Without limiting the
application of clause (z) of the preceding sentence, the Company, not later than
(I) 9:00 A.M., New York City time, on the business day following the date of
determination of the public offering price, if such determination occurred at or
prior to 12:00 noon, New York City time, on such date or (II) 6:00 P.M., New
York City time, on the business day following the date of determination of the
public offering price, if such determination occurred after 12:00 noon, New York
City time, on such date, will deliver to the Underwriters, without charge, as
many copies of the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming orders that
are expected to settle on the First Closing Date. The copies of each Original
Registration Statement, 462(b) Registration Statement, Preliminary Prospectus,
Term Sheet and Prospectus, and any amendments to the foregoing documents, shall
be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(C) advise the Representatives, promptly after receiving
notice or obtaining knowledge thereof, of (w) the issuance by the Commission of
any stop order suspending the effectiveness of the Original Registration
Statement or any amendment thereto or any Rule 462(b) Registration Statement or
any order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, (x) the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, (y) the
institution, threatening or contemplation of any proceeding for any purpose
identified in the preceding clause (w) or (x), or (z) any request made by the
Commission for amending the Original Registration
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Statement or any Rule 462(b) Registration Statement, for amending or
supplementing the Prospectus or for additional information. The Company will use
its best efforts to prevent the issuance of any such stop order and, if any such
stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(ii) The Company will endeavor in good faith, in cooperation with
the Representatives, to arrange for the qualification of the Shares for offering
and sale in each jurisdiction as the Representatives shall reasonably designate
including, but not limited to, pursuant to applicable state securities ("Blue
Sky") laws of certain states of the United States of America or other U.S.
jurisdictions, and the Company shall use its best reasonable efforts to maintain
such qualifications in effect for so long as may be necessary in order to
complete the placement of the Shares; provided, however, that the Company shall
not be obliged to file any general consent to service of process or to qualify
as a foreign corporation or as a securities dealer in any jurisdiction or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
(iii) If, at any time prior to the final date when a prospectus
relating to the Shares is required to be delivered under the Securities Act, 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 in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
for any other reason it shall be necessary at any time to amend the Registration
Statement or amend or supplement the Prospectus to comply with the Securities
Act or the rules or regulations of the Commission thereunder or applicable law,
the Company will promptly notify the Representatives thereof and will promptly,
at its own expense: (x) prepare and file with the Commission an amendment to the
Registration Statement or amendment or supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and (y) supply any
amended Registration Statement or amended or supplemented Prospectus to the
Underwriters in such quantities as the Underwriters may reasonably request.
(iv) The Company will make generally available to the Company's
security holders and to the Representatives as soon as practicable an earnings
statement that satisfies the provisions of Section 11(a) of the Securities Act,
including Rule 158 thereunder.
(v) The Company will not, and will not allow any majority-owned
subsidiary (each a "Subsidiary" and collectively, the "Subsidiaries") to
publicly announce any intention to, and will not itself, and will not allow any
Subsidiary to, without the prior written consent of Deutsche Xxxxxx Xxxxxxxx
Inc., on behalf of the Underwriters, (i) offer, pledge, sell, offer to sell,
contract to sell, sell any option or contract to purchase, purchase any option
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into, or exercisable or exchangeable for, Common Stock,
or (ii) enter into any swap or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the shares of Common
Stock or securities convertible into, or exercisable or exchangeable for, shares
of Common Stock (whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of shares of Common Stock or such other
securities, in cash or otherwise), for a period beginning from the date hereof
and continuing to and including the date which is the number of days after the
date hereof specified in Schedule I hereto, except pursuant to this Agreement
and other than with respect to (v) the shares of Common Stock issued and sold by
the Company hereunder, (w) shares issued upon the conversion of the Notes, (x)
shares of Common Stock (or any securities exercisable for, convertible into or
exchangeable for shares of Common Stock) issued or issuable pursuant to any
employee benefit plans, qualified and non qualified stock option plans or other
employee compensation plans which are disclosed in the Prospectus, (y) shares of
Common Stock that may be issued to shareholders of Practical Control Systems
Technologies, Inc. or Financial Technologies, Inc. and (z) shares of Common
Stock (or any
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securities convertible into or exchangeable for shares of Common Stock) issued
by the Company in connection with any other acquisition, joint venture,
strategic partnership or similar strategic arrangement, provided that the
recipient of such shares or convertible securities, at or prior to such
issuance, agrees to be bound by the transfer restrictions described above with
respect to such shares of Common Stock or convertible securities.
(vi) Neither the Company nor any of its affiliates, nor any
person acting on behalf of any of them will, directly or indirectly, (i) take
any action designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Shares or (ii) (x) sell, bid for, purchase, or pay anyone any compensation for
soliciting purchases of, the Shares or (y) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company.
(vii) The Company will obtain the agreements described in Section
7(g) hereof prior to the First Closing Date.
(viii) If at any time during the period prior to the First
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in the Representatives' reasonable
judgment the market price of the Shares has been or is likely to be materially
affected (regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after notice
from the Representatives advising the Company to the effect set forth above,
forthwith prepare, consult with the Representatives concerning the substance of,
and disseminate a press release responding to or commenting on such rumor,
publication or event or other public statement, that is reasonably satisfactory
to the Representatives.
(ix) If the Company elects to rely on Rule 462(b), the Company
shall both file the Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Securities Act by the earlier of (i) 10:00 p.m. New
York City time on the date of this Agreement and (ii) the time confirmations are
sent or given, as specified by Rule 462(b)(2) under the Securities Act.
(x) The Company will use its best efforts to cause the Shares to
be duly included for quotation on the Nasdaq National Market prior to the First
Closing Date. The Company will use all reasonable efforts to ensure that the
Shares remain included for quotation on the Nasdaq National Market, or are
included for quotation on the New York Stock Exchange or the American Stock
Exchange, for a period of five years following the First Closing Date.
(b) Each Selling Stockholder covenants and agrees with the several
Underwriters that:
(i) Such Selling Stockholder will not, and no person acting on
behalf of such Selling Stockholder will, directly or indirectly, (x) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares or (y) sell, bid for, purchase, or pay anyone any compensation for
soliciting purchase of, the Shares or (z) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company (except for the sale of Shares by the Selling Stockholders under this
Agreement).
(ii) Such Selling Stockholder will not, and will not cause any
affiliate to, publicly announce any intention to, and will not itself, and will
not allow any affiliate to, without the prior written
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consent of the Representatives on behalf of the Underwriters, (x) offer, pledge,
sell, offer to sell, contract to sell, sell any option or contract to purchase,
purchase any option to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any of the shares of
Common Stock or any securities convertible into, or exercisable or exchangeable
for, Common Stock, or (y) enter into any swap or other agreement that transfers,
in whole or in part, any of the economic consequences of ownership of the shares
of Common Stock or any securities convertible into, or exercisable or
exchangeable for, shares of Common Stock (whether any such transaction described
in clause (x) or (y) above is to be settled by delivery of shares of Common
Stock or such other securities, in cash or otherwise), in each case,
beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) or
otherwise controlled by such person on the date hereof or hereafter acquired,
for a period beginning from the date hereof and continuing to and including the
date 90 days after the date hereof; provided, however, that such Selling
Stockholder may, without the prior written consent of the Representatives on
behalf of the Underwriters, transfer shares of Common Stock or such other
securities to members of such Selling Stockholder's immediate family or to
trusts for the benefit of members of such Selling Stockholder's immediate family
or in connection with bona fide gifts; provided that any transferee agrees to
the transfer restrictions described above.
Section 4. Expenses.
(a) The Company shall bear and pay all costs and expenses incurred
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 9 hereof, including: (i) the fees and expenses of
its counsel, accountants and any other experts or advisors retained by the
Company; (ii) fees and expenses incurred in connection with the registration of
the Shares under the Securities Act and the preparation and filing of the
Registration Statement, the Prospectus and all amendments and supplements
thereto; (iii) the printing and distribution of the Prospectus and any
Preliminary Prospectus and the printing and production of all other documents
connected with the Offering (including this Agreement and any other related
agreements); (iv) expenses related to the qualification of the Shares under the
state securities or Blue Sky laws, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky memoranda; (v) the filing fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. (the "NASD"), including the fees and
disbursements of counsel for the Underwriters in connection therewith; (vi) all
expenses arising from the quoting of the Shares on the Nasdaq National Market;
(vii) all arrangements relating to the preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Shares, including transfer
agent's and registrar's fees; and (viii) the costs and expenses of travel,
lodging and meals of the Company's employees in connection with associated with
the "roadshow" and any other meetings with prospective investors in the Shares
(other than as shall have been specifically approved by the Representatives to
be paid for by 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 obligations under this Agreement not payable by the
Company pursuant to the preceding sentence, including, without limitation, all
costs associated with the "roadshow" (other than as set forth in clause (viii)
above) and the fees and disbursements of counsel to the Underwriters.
(b) The Selling Stockholders shall bear and pay all costs and expenses
incurred incident to the performance of their respective obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 9 hereof, including: (i) any
stamp duties, capital duties and stock transfer taxes, if any, payable upon the
sale of the Shares of such Selling Stockholders to the Underwriters and (ii) the
fees and disbursements of their respective counsel, accountants and other
advisors.
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Section 5. Representations And Warranties.
(a) As a condition of the obligation of the Underwriters to underwrite
and pay for the Shares, the Company represents and warrants to, and agrees with,
each of the several Underwriters as follows:
REGISTRATION STATEMENT AND PROSPECTUS
(i) If the Offering is a Rule 415 Offering (as specified in
Schedule I hereto), paragraph (x) below is applicable and, if the Offering is a
Rule 430A Offering (as so specified), paragraph (y) below is applicable.
(x) The Company meets the requirements for use of Form S-3
under the Securities Act and has filed with the Commission the Original
Registration Statement (the file number of which is set forth in Schedule I
hereto) on such Form, including a Basic Prospectus, for registration under the
Act of the offering and sale of the Shares, one or more amendments to such
Registration Statement may have been so filed, and the Company may have used a
Preliminary Prospectus. Such Registration Statement, as so amended, has become
effective. The Offering is a Rule 415 Offering and, although the Basic
Prospectus may not include all the information with respect to the Shares and
the offering thereof required by the Securities Act and the rules thereunder to
be included in the Prospectus, the Basic Prospectus includes all such
information required by the Securities Act and the rules thereunder to be
included therein as of the Effective Date. After the execution of this
Agreement, the Company will file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the form of prospectus included in such
Registration Statement relating to the Shares and the offering thereof, with
such information as is required or permitted by the Securities Act and as has
been provided to and approved by the Representatives prior to the date hereof
or, to the extent not completed at the date hereof, containing only such
specific additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Prospectus) as the Company has advised you,
prior to the date hereof, will be included or made therein. The Company may also
file a Rule 462(b) Registration Statement with the Commission for the purpose of
registering certain additional Shares, which registration shall be effective
upon filing with the Commission.
(y) The Company meets the requirements for the use of Form
S-3 under the Securities Act and has filed with the Commission the Original
Registration Statement (the file number of which is set forth in Schedule I
hereto) on such Form, including a Basic Prospectus, for registration under the
Securities Act of the offering and sale of the Shares, and one or more
amendments to such Registration Statement, including a Preliminary Prospectus,
may have been so filed. After the execution of this Agreement, the Company will
file with the Commission either (I) if such Registration Statement, as it may
have been amended, has been declared by the Commission to be effective under the
Securities Act, either (A) if the Company relies on Rule 434 under the
Securities Act, a Term Sheet relating to the Shares that shall identify the
Preliminary Prospectus that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Securities Act or
(B) if the Company does not rely on Rule 434 under the Securities Act, a
prospectus in the form most recently included in an amendment to such
Registration Statement (or, if no such amendment shall have been filed, in such
Registration Statement), with such changes or insertions as are required by Rule
430A under the Securities Act or permitted by Rule 424(b) under the Securities
Act, and in the case of either clause (A) or (B) of this sentence, as have been
provided to and approved by the Representatives prior to the execution of this
Agreement, or (II) if such Registration Statement, as it may have been amended,
has not been declared by the Commission to be effective under the Securities
Act, an amendment to such Registration Statement, including the form of final
prospectus supplement to the Basic Prospectus, a copy of which amendment has
been furnished to and approved by the
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Representatives prior to the execution of this Agreement or, to the extent not
completed at the date hereof, containing only such specific additional
information and other changes (beyond that contained in the Basic Prospectus and
any Preliminary Prospectus) as the Company has advised you, prior to the date
hereof, will be included or made therein. The Company may also file a Rule
462(b) Registration Statement with the Commission for the purpose of registering
certain additional Shares, which registration shall be effective upon filing
with the Commission.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission, it (x) contained all statements
required to be stated therein in accordance with, and complied in all material
respects with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (y) did not include 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. When the Registration Statement or any
amendment thereto was or is declared effective, it (I) contained or will contain
all statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of, the Securities
Act and the rules and regulations of the Commission thereunder and (II) did not
or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading. When the Prospectus or any Term Sheet or any amendment or supplement
to the Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if
the Prospectus or such amendment or supplement is not required to be so filed,
when the Registration Statement or the amendment thereto containing the
Prospectus or such amendment or supplement to the Prospectus was or is declared
effective) and on the Closing Date, the Prospectus, as amended or supplemented
at any such time, (A) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply in all material
respects with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (B) did not or will not include 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. The foregoing provisions of this paragraph
(ii) do not apply to statements or omissions made in any Preliminary Prospectus,
the Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(iii) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement is not effective, (x) the Company will file a
Rule 462(b) Registration Statement in compliance with, and that is effective
upon filing pursuant to, Rule 462(b) and (y) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement, in compliance with Rule
111 under the Securities Act, or the Commission has received payment of such
filing fee.
(iv) The Company has not distributed and, prior to the later of
(x) any Closing Date and (y) the completion of the distribution of the Shares,
will not distribute any offering material in connection with the Offering other
than the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto.
(v) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (x) the Company and its
Subsidiaries, taken as a whole, have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction not
in the ordinary
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course of business; (y) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or distribution
of any kind on its capital stock; and (z) there has not been any material change
in the capital stock, short-term or long-term debt of the Company and its
Subsidiaries, taken as a whole, except in each case as described in or
contemplated by the Prospectus.
THE SHARES
(vi) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus as of the date set forth therein.
All of the issued shares of capital stock of the Company (including the Option
Shares being offered by the Selling Stockholders) have been duly authorized and
validly issued and are fully paid and nonassessable, have been issued in
compliance with all applicable federal and state securities laws and were not
issued in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase such securities. No holders of outstanding shares of
capital stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Shares, and no holder of securities of the
Company has any right which has not been fully exercised or waived to require
the Company to register the offer or sale of any securities owned by such holder
under the Securities Act in the Offering contemplated by this Agreement.
(vii) Except as disclosed in the Prospectus and except for
options granted pursuant to qualified option plans and disclosed to the
Representatives, there are no outstanding (x) securities or obligations of the
Company or any of its Subsidiaries convertible into or exchangeable for any
capital stock of the Company or any such Subsidiary, (y) warrants, rights or
options to subscribe for or purchase from the Company or any such Subsidiary any
such capital stock or any such convertible or exchangeable securities or
obligations, or (z) obligations of the Company or any such Subsidiary to issue
any shares of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(viii) Except for the shares of capital stock of each of the
Subsidiaries owned by the Company and such Subsidiaries, neither the Company nor
any such Subsidiary owns any shares of stock or any other equity securities of
any corporation or has any equity interest in any firm, partnership, association
or other entity, except as described in or contemplated by the Prospectus.
LISTING
(ix) All of the Shares have been duly authorized and accepted for
quotation on the Nasdaq National Market, subject to official notice of issuance.
MARKET MANIPULATION
(x) Neither the Company nor any of its affiliates, nor any person
acting on behalf of any of them has, directly or indirectly, (A) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares, or (B) since the filing of the Original Registration Statement (I) sold,
bid for, purchased, or paid anyone any compensation for soliciting purchases of,
the Shares or (II) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
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CORPORATE POWER AND AUTHORITY
(xi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the law of its jurisdiction of
incorporation with full power and authority to own, lease and operate its
properties and assets and conduct its business as described in the Prospectus,
is duly qualified to transact business and is in good standing in each
jurisdiction in which its ownership, leasing or operation of its properties or
assets or the conduct of its business requires such qualification, except where
the failure to be so qualified does not amount to a material liability or
disability to the Company and its Subsidiaries, taken as a whole, and has full
power and authority to execute and perform its obligations under this Agreement;
each Subsidiary of the Company is a corporation duly incorporated and validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to transact business and is in good standing
in each jurisdiction in which its ownership, leasing or operation of its
properties or assets or the conduct of its business requires such qualification,
except where the failure to be so qualified does not amount to a material
liability or disability to the Company and its Subsidiaries, taken as a whole,
and each has full power and authority to own, lease and operate its properties
and assets and conduct its business as described in the Registration Statement
and the Prospectus; none of the Company's subsidiaries is a "significant
subsidiary" as defined in Section 1-02 (w) of Regulation S-X; all of the issued
and outstanding shares of capital stock (other than statutory nominal
stockholdings) of each of the Company's Subsidiaries have been duly authorized
and are fully paid and nonassessable and except as otherwise set forth in the
Prospectus (and except Aptex Software Inc., which is __% owned by the Company),
are owned beneficially by the Company or one of its Subsidiaries free and clear
of any security interests, liens, encumbrances, equities or claims.
(xii) The execution and delivery of this Agreement and the
issuance and sale of the Shares have been duly authorized by all necessary
corporate action of the Company, and this Agreement has been duly executed and
delivered by the Company and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (x) as the
enforceability thereof may be limited by bankruptcy, insolvency, federal or
state fraudulent conveyance or transfer laws, and reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles and (y) except 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.
(xiii) The execution and delivery by the Company of, and
compliance by the Company with the provisions of, and performance of its
obligations under, this Agreement and the consummation of the other transactions
herein contemplated do not (x) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except (I)
if the Company has elected to rely on Rule 462(b) and the Rule 462(b)
Registration Statement is not effective, the registration of certain Shares
pursuant to the Rule 462(b) Registration Statement that will be effective upon
filing in compliance with Rule 462 (b) and (II) such as have been obtained or
made or such as may be required by the state securities or Blue Sky laws of the
various states of the United States of America or other U.S. jurisdictions in
connection with the offer and sale of the Shares by the Underwriters, or (y)
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (I) any indenture, mortgage, deed
of trust, lease or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its Subsidiaries
or any of their respective properties are bound, except as would not
individually or in the aggregate have a materially adverse effect on or
constitute a materially adverse change in the condition (financial or
otherwise), earnings, properties, business affairs or business prospects, net
worth or results of operations of the Company or any of its Subsidiaries, taken
as a whole, or the ability of the Company to perform its obligations under this
Agreement, or (II) the charter documents or by-laws of the Company or any
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of its Subsidiaries, or (III) any statute or any judgment, decree, order, rule
or regulation of any court or other governmental authority or any arbitrator
applicable to the Company or any of its Subsidiaries.
(xiv) The Company is not, and will conduct its operations in a
manner so that it continues not to be, an "investment company" and, after giving
effect to the Offering and the application of the proceeds therefrom, will not
be an "investment company", as such term is defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
TITLE, LICENSES AND CONSENTS
(xv) The Company and each of its Subsidiaries have good and
marketable title in fee simple to all items of real property and marketable
title to all personal property owned by each of them, in each case free and
clear of any security interests, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect the use of such
property and do not interfere with the use made or proposed to be made of such
property by the Company or such Subsidiary, and any real property and buildings
held under lease by the Company or any such Subsidiary are held under valid,
subsisting and enforceable leases, with such exceptions as are not material and
do not interfere with the use made or proposed to be made of such property and
buildings by the Company or such Subsidiary, in each case except as described in
or contemplated by the Prospectus.
(xvi) Except as disclosed in the Prospectus, the Company and each
of its Subsidiaries have the right to use or can acquire on reasonable terms all
trademarks, trade names, trade secrets, service marks, inventions, patent
rights, mask works, copyrights, licenses, software code, audiovisual works,
formats, algorithms and underlying data, approvals and governmental
authorizations now used in, or which are necessary for fulfillment of their
respective obligations or the conduct of, their respective businesses as now
conducted or proposed to be conducted as described in the Prospectus; except as
discussed in the Prospectus, the expiration of any trademarks, trade names,
trade secrets, service marks, inventions, patent rights, mask works, copyrights
or licenses would not have a material adverse effect on the condition (financial
or otherwise), earnings, properties, business affairs or business prospects,
stockholders' equity, net worth or results of operations of the Company; and
neither the Company nor any of its Subsidiaries is infringing any trademark,
trade name rights, patent rights relating to patents that have issued, mask
works, copyrights, licenses, trade secret, service marks or other similar rights
of others, and there is no claim being made against the Company or any of its
Subsidiaries regarding trademark, trade name, patent, mask work, copyright,
license, trade secret or other infringement or assertion of intellectual
property rights which could have a material adverse effect on the earnings,
properties, business affairs or business prospects, stockholders' equity, net
worth or results of operations of the Company. The Company has agreements in
place with such employees, consultants or other persons or parties engaged by
the Company or any Subsidiary sufficient to enable the Company and any
subsidiary to fulfill their contractual obligations and to conduct their
respective businesses as now conducted as described in the Prospectus and
providing for the assignment to the Company of all intellectual property rights
in the work performed and the protection of the trade secrets and confidential
information of the Company, each of its Subsidiaries and of third parties.
(xvii) The Company and its Subsidiaries possess all consents,
licenses, certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such Subsidiary has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
materially adverse effect on or constitute a materially adverse change in, or
constitute a development involving a
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prospective materially adverse effect on or change in, the condition (financial
or otherwise), earnings, properties, business affairs or business prospects, net
worth or results of operations of the Company or any of its Subsidiaries, taken
as a whole, except as described in or contemplated by the Prospectus.
FINANCIAL STATEMENTS
(xviii) Price Waterhouse LLP, who have certified certain
financial statements of the Company and its consolidated Subsidiaries and
delivered their report with respect to the audited consolidated financial
statements and schedules included or incorporated by reference in the
Registration Statement and the Prospectus, are independent public accountants as
required by the Securities Act and the applicable rules and regulations
thereunder.
(xix) The consolidated financial statements and schedules of the
Company and its consolidated Subsidiaries included or incorporated in the
Registration Statement and the Prospectus were prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the periods involved (except as otherwise noted therein) and they
present fairly the consolidated financial condition of the Company as at the
dates at which they were prepared and the consolidated results of operations of
the Company in respect of the periods for which they were prepared.
INTERNAL ACCOUNTING CONTROLS
(xx) The Company and each of its Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that
(w) transactions are executed in accordance with management's general or
specific authorizations; (x) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (y) access to assets is permitted only in accordance with
management's general or specific authorization; and (z) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
LITIGATION
(xxi) No legal or governmental proceedings are pending or to the
Company's knowledge threatened to which the Company or any of its Subsidiaries
is a party or to which the property of the Company or any of its Subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not described therein; and no statutes, regulations,
contracts or other documents that are required to be described or incorporated
in the Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement are not described or incorporated therein or filed as
required.
DIVIDENDS AND DISTRIBUTIONS
(xxii) Except as disclosed in the Prospectus under the caption
"Dividend Policy" or restricted by applicable law, no Subsidiary of the Company
is currently prohibited, directly or indirectly, from paying any dividends to
the Company, making any other distribution on such Subsidiary's capital stock,
repaying to the Company any loans or advances to such Subsidiary from the
Company or transferring any of such Subsidiary's property or assets to the
Company or any other Subsidiary of the Company, and the Company is not currently
prohibited, directly or indirectly, from paying any dividends or making any
other distribution on its capital stock, in each case except as described in or
contemplated by the Prospectus or prohibited by applicable law.
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TAXES
(xxiii) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not have a
materially adverse effect on the Company and its Subsidiaries, taken as a whole)
and has paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is currently being
contested in good faith or as described in or contemplated by the Prospectus.
INSURANCE
(xxiv) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such Subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect the condition
(financial or otherwise), earnings, properties, business affairs or business
prospects, net worth or results of operations of the Company or any of its
Subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus.
PENSION AND LABOR
(xxv) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (x) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (y) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
(xxvi) No labor dispute with the employees of the Company or any
of its Subsidiaries exists or is threatened or imminent that could have a
materially adverse effect on or constitute a materially adverse change in, or
constitute a development involving a prospective materially adverse effect on or
change in, the condition (financial or otherwise), properties, management,
earnings, business affairs or business prospects, net worth or results of
operations of the Company or any of its Subsidiaries, taken as a whole, except
as described in or contemplated by the Prospectus.
ENVIRONMENTAL
(xxvii)Neither the Company nor any of its Subsidiaries is in
violation of any federal or state law or regulation relating to occupational
safety and health or to the storage, handling or transportation of hazardous or
toxic materials and the Company and its Subsidiaries have received all permits,
licenses or other approvals required of them under applicable federal and state
occupational safety and health and environmental laws and regulations to conduct
their respective businesses, and the Company and each such Subsidiary is in
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compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals which would not,
singly or in the aggregate, have a materially adverse effect on or constitute a
materially adverse change in, or constitute a development involving a
prospective materially adverse effect on or change in, the condition (financial
or otherwise), earnings, properties, business affairs or business prospects, net
worth or results of operations of the Company or any of its Subsidiaries, taken
as a whole, except as described in or contemplated by the Prospectus.
OTHER AGREEMENTS
(xxviii) No default by the Company or any of its Subsidiaries
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 of any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries or any of their
respective properties is bound, where such default could have a material adverse
effect on the condition (financial or otherwise), properties, management,
earnings, business affairs or business prospects, net worth or results of
operations of the Company or any of its Subsidiaries, taken as a whole, or the
ability of the Company to perform its obligations under this Agreement .
ABSENCE OF MATERIALLY ADVERSE CHANGE
(xxix) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, neither the Company
nor any of its Subsidiaries has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has been no
materially adverse change (including, without limitation, a change in management
or control), or development involving a prospective materially adverse change,
in the condition (financial or otherwise), management, earnings, property,
business affairs or business prospects, stockholders' equity, net worth or
results of operations of the Company or any of its Subsidiaries, taken as a
whole, other than as described in or contemplated by the Prospectus (exclusive
of any amendments or supplements thereto).
(xxx) No receiver or liquidator (or similar person) has been
appointed in respect of the Company or any Subsidiary of the Company or in
respect of any part of the assets of the Company or any Subsidiary of the
Company; no resolution, order of any court, regulatory body, governmental body
or otherwise, or petition or application for an order, has been passed, made or
to the Company's knowledge presented for the winding up of the Company or any
Subsidiary of the Company or for the protection of the Company or any such
Subsidiary from its creditors; and the Company has not, and no Subsidiary of the
Company has, stopped or suspended payments of its debts, become unable to pay
its debts or otherwise become insolvent.
(b) As a further condition of the obligation of the Underwriters to
underwrite and pay for the Shares, each Selling Stockholder severally represents
and warrants to, and agrees with, each of the several Underwriters that:
(i) Such Selling Stockholder has full power to enter into this
Agreement and to sell, assign, transfer and deliver to the Underwriters the
Shares to be sold by such Selling Stockholder hereunder in accordance with the
terms of this Agreement; and this Agreement has been duly executed and delivered
by such Selling Stockholder.
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(ii) Such Selling Stockholder has duly executed and delivered a
power of attorney and custody agreement (with respect to such Selling
Stockholder, the "Power-of-Attorney" and the "Custody Agreement", respectively)
each in the form heretofore delivered to the Representatives, appointing Xxxxxx
X. North and Xxxxxxx X. Xxxxxx as such Selling Stockholder's attorney-in-fact
(the "Attorney-in-Fact") with authority to execute, deliver and perform this
Agreement on behalf of such Selling Stockholder and appointing the BancBoston,
N.A. as custodian thereunder (the "Custodian"). Certificates in negotiable form,
endorsed in blank or accompanied by blank stock powers duly executed, with
signatures appropriately guaranteed, representing the Shares to be sold by such
Selling Stockholder hereunder (other than Shares issuable upon exercise of
vested stock options) have been deposited with the Custodian pursuant to the
Custody Agreement for the purpose of delivery pursuant to this Agreement. Such
Selling Stockholder has full power to enter into the Custody Agreement and the
Power-of-Attorney and to perform its obligations under the Custody Agreement.
The execution and delivery of the Custody Agreement and the Power-of-Attorney
have been duly authorized by all necessary action of such Selling Stockholder;
the Custody Agreement and the Power-of-Attorney have been duly executed and
delivered by such Selling Stockholder and, assuming due authorization, execution
and delivery by the Custodian, are the legal, valid, binding and enforceable
instruments of such Selling Stockholder. Such Selling Stockholder agrees that
each of the Shares represented by the certificates on deposit with the Custodian
is subject to the interests of the Underwriters hereunder, that the arrangements
made for such custody, the appointment of the Attorney-in-Fact and the right,
power and authority of the Attorney-in-Fact to execute and deliver this
Agreement, to agree on the price at which the Shares (including such Selling
Stockholder's Shares) are to be sold to the Underwriters, and to carry out the
terms of this Agreement, are to that extent irrevocable and that the obligations
of such Selling Stockholder hereunder shall not be terminated, except as
provided in this Agreement or the Custody Agreement, by any act of such Selling
Stockholder, by operation of law or otherwise, whether by the death or
incapacity of such Selling Stockholder or by the occurrence of any other event.
If any Selling Stockholder should die or if any other event should occur before
the delivery of such Shares hereunder, the certificates for such Shares
deposited with the Custodian shall be delivered by the Custodian in accordance
with the respective terms and conditions of this Agreement as if such death or
other event had not occurred, regardless of whether or not the Custodian or the
Attorney-in-Fact shall have received notice thereof.
(iii) Such Selling Stockholder has good and valid title to the
Shares to be sold by the Selling Stockholder hereunder and upon sale and
delivery of, and payment for, such Shares, as provided herein, each Selling
Stockholder will convey good and valid title to such Shares, free and clear of
any security interests, liens, encumbrances, equities, claims or other defects.
(iv) Neither such Selling Stockholder nor any person acting on
behalf of it has, directly or indirectly, (x) taken any action designed to cause
or to result in, or that has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares or (y) since the
filing of the Original Registration Statement (I) sold, bid for, purchased, or
paid anyone any compensation for soliciting purchases of, the Shares or (II)
paid or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company (except for the sale of Shares by
the Selling Stockholders under this Agreement).
(v) Such Selling Stockholder has reviewed the Prospectus and the
Registration Statement, and the information regarding such Selling Stockholder
set forth therein under the caption "Selling Stockholders" is complete and
accurate. All information furnished in writing by or on behalf of such Selling
Stockholder for use in the Registration Statement is, and on each Closing Date
will be, true, correct and complete, and does not, and on such Closing Date will
not, contain any untrue statement of a material fact or omit to state any
material fact necessary to make such information not misleading, and all
information
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furnished in writing by or on behalf of such Selling Stockholder for use in the
Prospectus is, and on such Closing Date will be, true, correct and complete, and
does not, and on such Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make such
information not misleading in the light of the circumstances under which they
were made.
(vi) The sale by such Selling Stockholder of Shares pursuant
hereto is not prompted by any adverse information concerning the Company that is
not set forth in the Registration Statement or Prospectus.
(vii) Neither such Selling Stockholder nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, or has any other association
with (within the meaning of Article I, Section 1(m) of the By-laws of the NASD),
any member firm of the NASD.
(viii) The sale of the Shares to the Underwriters by such Selling
Stockholder pursuant to this Agreement, the compliance by such Selling
Stockholder with the other provisions of this Agreement, the Custody Agreement
and the consummation of the other transactions herein contemplated do not (i)
require the consent, approval, authorization, registration or qualification of
or with any governmental authority, except such as have been obtained, such as
may be required under foreign or state securities or blue sky laws, such as may
be requested under the Securities Exchange Act of 1934, as amended, and, if the
registration statement filed with respect to the Shares (as amended) is not
effective under the Securities Act as of the time of execution hereof, such as
may be required (and shall be obtained as provided in this Agreement) under the
Securities Act, or (ii) conflict with or result in a breach or violation of any
of the terms and provisions of, or constitute a default under any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which such
Selling Stockholder or is a party or by which such Selling Stockholder or any of
its properties are bound, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to such Selling Stockholder.
(ix) Such Selling Stockholder has not distributed and, prior to
the later of (x) any Closing Date and (y) the completion of the distribution of
the Shares, will not distribute any offering material in connection with the
offering other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto.
(c) The above representations and warranties with respect to the
Company shall be deemed to be repeated at each Closing and with respect to each
Selling Stockholder at each Closing where such Selling Stockholder is selling
Shares to the Underwriters, and all references therein to the Shares and the
Closing Date shall be deemed to refer to the Firm Shares or the Option Shares
and the First Closing Date or the applicable Option Closing Date, each as
applicable.
Section 6. Indemnity.
(a) The Company agrees 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 or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
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(i) any untrue statement or alleged untrue statement made by the
Company in Section 5 hereof,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
the Basic Prospectus, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, the Basic Prospectus, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
a material fact required to be stated therein, or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading,
and will reimburse, as incurred, each Underwriter and each such
controlling person for any legal or other costs or expenses reasonably incurred
by such Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, the Basic Prospectus, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein; and provided further, that the Company will not be liable to any
Underwriter or any person controlling such Underwriter with respect to any such
untrue statement, alleged untrue statement, omission or alleged omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or any amendment
or supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Shares from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) in any case where such
delivery of the Prospectus (as amended or supplemented) was required by the
Securities Act, unless such failure to deliver the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company with Section 3
hereof. The indemnity provided for in this Section 6 shall be in addition to any
liability which the Company may otherwise have. The Company will not, without
the prior written consent of the Representatives, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not any such Representatives or any person who controls any such
Representatives is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of all
of the Underwriters and such controlling persons from all liability arising out
of such claim, action, suit or proceeding.
(b) Each of the Selling Stockholders agrees, severally and not jointly,
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
or liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement made by
any of the Selling Stockholders in Section 5 hereof, and will reimburse, as
incurred, each Underwriter and each such controlling person for any legal or
other costs or expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Selling Stockholders
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission
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made in the Registration Statement or any amendment thereto, the Basic
Prospectus, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and provided further, that such Selling
Stockholder will not be liable to any Underwriter or any person controlling such
Underwriter with respect to any such untrue statement or omission made in any
Preliminary Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Shares from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) in any case where such
delivery of the Prospectus (as amended or supplemented) was required by the
Securities Act, unless such failure to deliver the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company with Section 3
hereof. The indemnity provided for in this Section 6 shall be in addition to any
liability which the Selling Stockholders may otherwise have. None of the Selling
Stockholders will, without the prior written consent of the Representatives,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not any such Representatives or any person
who controls any such Representatives is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding. The
liability of each Selling Stockholder under this Section 6 shall not exceed the
net proceeds from the Offering received by such Selling Stockholder.
(c) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement, each Selling Stockholder and each person, if any, who
controls the Company or Selling Stockholder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
Selling Stockholder or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, the Basic Prospectus,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto or (ii) the omission or the alleged omission to state in the
Registration Statement or any amendment thereto, the Basic Prospectus any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company or any such director,
officer, Selling Stockholder or controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or any action in respect
thereof. The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity. No Underwriter will, without the prior
written consent of the Company, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not the
Company, any of its officers and directors, or any controlling person, Selling
Stockholder or controlling person of such Selling Stockholder, is a party to
such claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the Company and such directors,
officers and controlling persons, the Selling Stockholder or controlling person
of such Selling Stockholder from all liability arising out of such claim,
action, suit or proceeding.
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(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a), (b) or (c) of this Section 6, such person (for
purposes of paragraphs (d) and (e) of this Section 6, the "indemnified party")
shall, promptly after receipt by such party of notice of the commencement of
such action, notify the person against whom such indemnity may be sought (for
purposes of paragraphs (d) and (e) of this Section 6, the "indemnifying party"),
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 6. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded (based upon the advice of its
counsel) that there may be one or more legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances), or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party, or (iii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. All fees and expenses to be
reimbursed pursuant to this paragraph (d) shall be reimbursed as they are
incurred. After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and expenses of
any settlement of such action effected by such indemnified party without the
consent of the indemnifying party.
(e) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 6 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) purporting to be
covered thereby, each indemnifying party, in order to provide for just and
equitable contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect (i)
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the Offering or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total proceeds from the Offering (before
deducting expenses) received by the Company and the Selling Stockholders bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue
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statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters, the parties' relative intents, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Company, the Selling Stockholders and the Underwriters agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this paragraph (e). Notwithstanding any other provision of this paragraph
(e), no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the total public offering price of the Shares purchased by
such Underwriter under this Agreement, less the aggregate amount of any damages
that such Underwriter has otherwise been required to pay in respect of the same
or any substantially similar claim, and no Selling Stockholder shall be required
to contribute any amount in excess of the lesser of (x) the amount by which the
proceeds (after deducting underwriting discounts or commission) received by such
Selling Stockholder or (y) such Selling Stockholder's pro rata liability based
on the number of shares of Common Stock sold by such Selling Stockholder
relative to the overall size of the offering, exceeds the amount of any damages
which such Selling Stockholder has otherwise been required to pay in respect of
the same or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
hereunder are several in proportion to their respective underwriting obligations
and not joint, and contributions among Underwriters shall be governed by the
provisions of the Deutsche Xxxxxx Xxxxxxxx Inc. Master Agreement Among
Underwriters. For purposes of this paragraph (e), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, each Selling Stockholder and each person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company or such Selling Stockholder, as the case may be.
Section 7. Conditions Precedent.
The obligations of the several Underwriters to purchase and pay for the
Shares shall be subject, in the Representatives' reasonable discretion, to (i)
the accuracy of the representations and warranties of the Company and the
Selling Stockholders contained herein as of the date hereof and as of each
Closing Date on which the Company and the Selling Stockholders propose to sell
Shares to the Underwriter, in each case, as if made on and as of each Closing
Date, (ii) the performance by the Company and the Selling Stockholders of their
respective covenants and agreements hereunder required to be performed or
satisfied at or prior to the Closing Date, and (iii) the following additional
conditions:
(a) (i)If the Original Registration Statement or any amendment thereto
filed prior to the First Closing Date has not been declared effective as of the
time of execution hereof, the Original Registration Statement or such amendment
shall have been declared effective not later than 6:00 P.M. New York City time
on the date of determination of the public offering price, if such determination
occurred at or prior to 4:30 P.M. New York City time on such date, or 12:00 Noon
New York City time on the business day following the day on which the public
offering price was determined, if such determination occurred after 4:30 P.M.
New York City time on such date, and (ii) if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have been
declared effective not later than the time confirmations are sent or given as
specified by Rule 462(b)(2), or such later time and date as shall have been
consented to by the Representatives; if required, the Prospectus or any Term
Sheet that constitutes a part thereof and any amendment or supplement
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thereto shall have been filed with the Commission in the manner and within the
time period required by Rule 424(b) under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received a legal opinion from Fenwick
& West LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) the Registration Statement is effective under the Securities
Act; any required filing of the Prospectus, or any Term Sheet that constitutes a
part thereof, pursuant to Rules 434 and 424(b) has been made in the manner and
within the time period required by Rules 434 and 424(b); and to its knowledge,
no stop order suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued and, to its knowledge, no proceedings for that
purpose are pending or threatened by the Commission;
(ii) the Original Registration Statement and each amendment
thereto, any Rule 462(b) Registration Statement and the Prospectus (in each
case, other than the financial statements and other financial and statistical
information contained therein, as to which such counsel need express no
opinion), excluding in each case the documents incorporated by reference
therein, comply as to form in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder;
(iii) the documents incorporated by reference in the Prospectus
(in each case other than the financial statements and other financial and
statistical information contained therein, as to which such counsel need express
no opinion), when they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects with the
applicable requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder;
(iv) at December 31, 1997, the Company had an authorized, issued
and outstanding capitalization as set forth in the "Capitalization" section of
the Prospectus; all of the shares of capital stock issued and outstanding prior
to the sale of the Shares have been duly authorized and validly issued and,
assuming payment therefor in accordance with the resolutions authorizing such
issuances or in accordance with the terms of the applicable option or warrant,
as the case may be, are fully paid and nonassessable; and none of such shares of
capital stock was issued in violation of any statutory preemptive or, to such
counsel's knowledge, other similar rights; to such counsel's knowledge, no
holders of outstanding shares of capital stock of the Company are entitled as
such to any preemptive or other rights to subscribe for any of the Shares; and
to such counsel's knowledge no holder of securities of the Company has any right
which has not been fully exercised or waived to require the Company to register
the offer or sale of any securities owned by such holder under the Securities
Act in the Offering contemplated by this Agreement;
(v) all of the Shares have been duly authorized and accepted for
quotation on the Nasdaq National Market, subject to official notice of issuance;
(vi) the Company and each of its domestic Subsidiaries have been
duly organized and are validly existing as corporations in good standing under
the laws of their respective jurisdictions of incorporation; based solely on
certificates from public officials, such counsel confirms that the Company and
each of its domestic Subsidiaries are duly qualified to transact business in the
jurisdictions set forth under their respective names in the list attached as
Schedule IV; to such counsel's knowledge the Company and each of its
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domestic Subsidiaries have the corporate power and corporate authority to own,
lease and operate their respective properties and assets and conduct their
respective businesses as described in the Registration Statement and the
Prospectus, and the Company has corporate power to enter into this Agreement and
to carry out all the terms and provisions hereof to be carried out by it; all of
the issued and outstanding shares of capital stock of each of the Company's
domestic Subsidiaries have been duly authorized and validly issued, are, to its
knowledge, fully paid and nonassessable and, except as otherwise set forth in
the Registration Statement, are owned beneficially by the Company or one if its
Subsidiaries free and clear of any perfected security interests or, to the
knowledge of such counsel, any other security interests, liens, encumbrances,
equities or claims;
(vii) the statements set forth under the headings "Description of
Capital Stock"; and "Underwriting" in the Prospectus, and under Item 15 in the
Registration Statement, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, have been reviewed
by such counsel and fairly present the information called for with respect to
such legal matters, documents and proceedings in all material respects as
required by the Securities Act and the Exchange Act and the respective rules and
regulations thereunder;
(viii) the execution and delivery of this Agreement have been
duly authorized by all necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the Company;
(ix) the execution and delivery by the Company of, and compliance
by the Company with, the provisions of, and performance of its obligations
under, this Agreement, and the consummation of the other transactions
contemplated in this Agreement and the Registration Statement do not (x) require
the consent, approval, authorization, registration or qualification of or with
any governmental authority, except such as have been obtained or made (and
specified in such opinion) or such as may be required by the securities or Blue
Sky laws of the United States of America, or any state thereof, or any foreign
jurisdiction or under the bylaws or rules of the NASD in connection with the
offer and sale of the Shares by the Underwriters, or (y) to such counsel's
knowledge, conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, lease or other agreement or instrument, to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its domestic
Subsidiaries or any of their respective properties are bound, which indenture,
mortgage, deed of trust, lease or other agreement or instrument is (or is
required to be, in accordance with applicable laws) included (or incorporated by
reference) in the Registration Statement, or any foreign jurisdiction or under
the bylaws or rules of the NASD, or the charter documents or by-laws of the
Company or any of its domestic Subsidiaries, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental authority
or any arbitrator known to such counsel and applicable to the Company or its
domestic Subsidiaries;
(x) the Company is not an "investment company" and, after giving
effect to the Offering and the application of the proceeds therefrom, will not
be an "investment company", as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its domestic
Subsidiaries is a party or to which the property of the Company or any of its
domestic Subsidiaries is subject that are required to be described or
incorporated in the Registration Statement or the Prospectus and are not
described or incorporated therein or any statutes, regulations, contracts or
other documents that are required to be described or incorporated in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or incorporated therein or filed
as required.
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Such opinion shall also state such counsel has participated in certain
conferences with officers and other representatives of the Company,
representatives of the independent certified public accountants for the Company
and representatives of the Underwriters, 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, nor has such counsel independently verified, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus, on the basis of the foregoing, no facts have come to
such counsel's attention that have caused such counsel to believe that either
the Registration Statement, at the time such Registration Statement became
effective, or the Prospectus as of the date hereof, 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
(except, in the case of both the Registration Statement and the Prospectus, for
the financial statements, notes thereto and other schedules, financial and
accounting information and statistical data contained therein, as to which such
counsel expresses no view).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company or certificates of government officials.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion. The opinions of issuer's counsel described herein shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(c) The Representatives shall have received a legal opinion from counsel
for the Selling Stockholders, acceptable to the Representatives, dated the
Closing Date, with respect to each of the Selling Stockholders, to the effect
that:
(i) To such counsel's knowledge, such Selling Stockholder has
full power to enter into this Agreement, the Custody Agreement and the
Power-of-Attorney and to sell, assign, transfer and deliver the Shares being
sold by such Selling Stockholder hereunder in the manner provided in this
Agreement and to perform its obligations under the Custody Agreement; this
Agreement, the Custody Agreement and the Power-of-Attorney have been duly
executed and delivered by or on behalf of such Selling Stockholder; assuming due
authorization, execution and delivery by the Custodian, the Custody Agreement
and the Power-of-Attorney are the legal, valid, binding and enforceable
instruments of such Selling Stockholder, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(ii) Upon delivery of and payment for the Shares to be sold by
the Company as provided in the Underwriting Agreement and upon registration of
such Shares in the names of the Underwriters (or their nominees) in the stock
records of the Company, the Underwriters will be the owners of such Shares, free
and clear of any adverse claim, provided that the Underwriters are purchasing
such Shares in good faith and without notice of any adverse claim.
(iii) the sale of the Shares to the Underwriters by such Selling
Stockholder pursuant to this Agreement, the compliance by such Selling
Stockholder with the other provisions of this Agreement and the Custody
Agreement and the consummation of the other transactions herein contemplated do
not (x) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained and such as may be required under state securities or blue sky laws or
the bylaws or
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rules of the NASD, or (y) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, lease or other material agreement or
instrument to which such Selling Stockholder is a party or by which such Selling
Stockholder or any of its properties are bound, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental authority
or any arbitrator applicable to such Selling Stockholder.
In rendering such opinion, such counsel may rely, to the extent such
counsel deems proper, upon the representations and warranties of the Selling
Stockholders contained herein or in the Powers of Attorney and Custody
Agreement.
References to the Registration Statement and the Prospectus in this
paragraph (d) shall include any amendment or supplement thereto at the date of
such opinion.
(d) The Representatives shall have received a legal opinion from Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Underwriters, dated the Closing
Date, covering the issuance and sale of the Shares, the Registration Statement
and the Prospectus, and such other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(e) The Representatives shall have received from Price Waterhouse LLP
letters dated the date hereof and the Closing Date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies
of such letters for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (I) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (II) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement, as amended as of the date
hereof. References to the Registration Statement and the Prospectus in this
paragraph (f) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(f) The Company shall have furnished or caused to be furnished to the
Underwriters at the Closing a certificate of its President and Chief Executive
Officer and its Chief Financial Officer satisfactory to the Underwriters to the
effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Closing Date; the
Registration Statement, as amended as of the Closing Date, does not include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading, and the Prospectus, as amended or
supplemented as of the Closing Date, does not include 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; and the Company has performed all covenants and agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Date;
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(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the best
of the Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (exclusive of any
amendment or supplement thereto), neither the Company nor any of its
Subsidiaries has sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, and there has not been any materially
adverse change (including, without limitation, a change in management or
control), or development involving a prospective materially adverse change, in
the condition (financial or otherwise), management, earnings, properties,
business affairs or business prospects, stockholders' equity, net worth or
results of operations of the Company or any of its Subsidiaries, except in each
case as described in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto).
(g) The Representatives shall have received from the Company and each
person who is a director or executive officer of the Company an agreement dated
on or before the date of this Agreement to the effect that such person will not,
without the prior written consent of the Representatives during a period from
the date of this Agreement and continuing and including the date which is the
number of days, after the date hereof as specified in Schedule I hereto, without
the prior written consent of the Underwriters, (i) offer, pledge, sell, offer to
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such securities, in cash or otherwise; provided, however,
that such person may, without the prior written consent of the Representatives
on behalf of the Underwriters, transfer shares of Common Stock or such other
securities to members of such person's immediate family or to trusts for the
benefit of members of such person's immediate family or in connection with bona
fide gifts, provided that any transferee agrees to the transfer restrictions
described above.
(h) The Representatives shall have received a certificate from each
Selling Stockholder dated each Option Closing Date, signed by an
Attorney-in-Fact on behalf of such Selling Stockholder, to the effect that:
(i) the representations and warranties of such Selling
Stockholder in this Agreement are true and correct as if made on and as of such
Closing Date;
(ii) To the knowledge of such Selling Stockholder, but without
independent verification of information not relating to such Selling
Stockholder, (i) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
a state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (ii) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit 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, except that the representations and warranties set forth
in this subsection (i) do not apply to statements or omissions in the
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Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(iii) such Selling Stockholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior to such Closing
Date.
(i) Prior to the commencement of the Offering, the Company shall have
made an application for the quotation of the Shares on the Nasdaq National
Market and the Shares shall have been included for trading on the Nasdaq
National Market, subject to official notice of issuance.
(j) On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company and the
Selling Stockholders.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company and the Selling Stockholders shall
furnish to the Representatives such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Representatives
and counsel for the Underwriters shall reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Shares, except that all references therein
to the Shares and the Closing Date shall be deemed to refer to the Firm Shares
or the Option Shares and the First Closing Date or the related Option Closing
Date, each as applicable.
Section 8. Default of Underwriters.
If, at the First Closing, any one or more of the Underwriters shall fail
or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is ten
percent or less of the aggregate number of the Shares to be purchased on such
date, the other Underwriters may make arrangements satisfactory to the
Representatives for the purchase of such Shares by other persons (who may
include one or more of the non-defaulting Underwriters, including the
Representatives), but if no such arrangements are made by the First Closing
Date, the other Underwriters shall be obligated severally in the proportions
that the number of Firm Shares set forth opposite their respective names in
Schedule II hereto bears to the aggregate number of Firm Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Representatives may specify, to purchase the Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date. If, at the First Closing, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Shares and the aggregate number of Firm
Shares with respect to which such default occurs is more than ten per cent of
the aggregate number of Firm Shares to be purchased, and arrangements
satisfactory to the Representatives and the Company and the Selling Stockholders
for the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders. In any such
case either the Representatives or the Company shall have the right to postpone
the Closing, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If, at any Option
Closing, any Underwriter or Underwriters shall fail or refuse to purchase Option
Shares, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase Option Shares or (ii) purchase not
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less than the number of Option Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 8. Any action taken under this Section 8 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
Section 9. Termination.
This Agreement shall be subject to termination in the sole discretion of
the Representatives by notice to the Company and the Selling Stockholders given
prior to any Closing Date in the event that the Company shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder at the Closing or prior thereto
or, if at or prior to any Closing Date, (a) trading in securities generally on
the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited or minimum or maximum prices shall have been
established by or on, as the case may be, the Commission or the New York Stock
Exchange or the Nasdaq National Market; (b) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market; (c) a general moratorium on commercial banking activities shall have
been declared by either Federal or New York State authorities; (d) there shall
have occurred (i) an outbreak or escalation of hostilities between the United
States and any foreign power, (ii) an outbreak or escalation of any other
insurrection or armed conflict involving the United States, or (iii) any other
calamity or crisis or materially adverse change in general economic, political
or financial conditions having an effect on the U.S. financial markets that, in
the reasonable judgment of the Representatives, in the case of clauses (d)(i),
(d)(ii) and (d)(iii), makes it impractical or inadvisable to proceed with the
public offering or the delivery of the Shares as contemplated by the
Registration Statement, as amended as of the date hereof; or (e) the Company or
any of its Subsidiaries shall have, in the reasonable judgment of the
Representatives, sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, or there shall have been any materially
adverse change (including, without limitation, a change in management or
control), or constitute a development involving a prospective materially adverse
change, in the condition (financial or otherwise), management, earnings,
properties, business affairs or business prospects, stockholders' equity, net
worth or results of operations of the Company or any of its Subsidiaries, except
in each case as described in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto). Termination of this Agreement pursuant to this
Section 9 shall be without liability of any party to any other party except for
the liability of the Company in relation to expenses as provided in Sections 4
and 10 hereof, the liability of the Selling Stockholders in relation to expenses
as provided in Sections 4 and 10 hereof, the indemnity provided in Section 6
hereof and any liability arising before or in relation to such termination.
Section 10. Reimbursement of Expenses.
If the sale of the Shares provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in Section 7
hereof is not satisfied or because of any termination pursuant to Section 9
hereof (other than by reason of a default by any of the Underwriters), the
Company shall reimburse the Underwriters, severally upon demand, for all
out-of-pocket expenses (including fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Shares. If the Company is required to make any payments to the Underwriters
under this Section 10 because of any Selling Stockholder's refusal, inability or
failure to satisfy any condition to the obligations of the Underwriters set
forth in Section 7 hereof, such defaulting Selling Stockholder, pro rata in
proportion to the percentage of Shares to be sold by it, shall reimburse the
Company on demand for amounts so paid.
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Section 11. Information Supplied by Underwriters.
The statements set forth in the last paragraph on the front cover page
and in the third and last three paragraphs under the heading "Underwriting" in
any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Section 5(a)(ii) and Section 6 hereof. The Underwriters confirm that such
statements (to such extent) are correct.
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Section 12. Notices.
In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representatives. Any notice or notification in any form to be given
under this Agreement may be delivered in person or sent by telex, facsimile or
telephone (subject in the case of a communication by telephone to confirmation
by telex or facsimile) addressed to:
in the case of the Company:
HNC Software Inc.
0000 Xxxxxxxxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: President
in the case of the Underwriters:
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Equity Syndicate Desk
In the case of the Selling Stockholders, any such notice shall be addressed to
the Selling Stockholders at the addresses set forth in Schedule III hereto. Any
such notice shall take effect, in the case of delivery, at the time of delivery
and, in the case of telex or facsimile, at the time of dispatch.
Section 13. Miscellaneous.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect, the meaning or interpretation
of this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange is open for trading, and (b) "subsidiary" has
the meaning set forth in Rule 405 under the Securities Act.
(d) This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same Agreement and any party
may enter into this Agreement by executing a counterpart.
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(e) This Agreement shall inure to the benefit of and shall be binding
upon the several Underwriters, the Company, the Selling Stockholders and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that (i)
the indemnities of the Company and the Selling Stockholders contained in Section
6 hereof shall also be for the benefit of any person or persons who control any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and (ii) the indemnities of the Underwriters contained in
Section 6 hereof shall also be for the benefit of the directors of the Company,
the officers of the Company who have signed the Registration Statement, each
Selling Stockholder and any person or persons who control the Company or such
Selling Stockholder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act. No purchaser of Shares from any Underwriter
shall be deemed a successor because of such purchase.
(f) The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Company, its officers, the Selling
Stockholders and the several Underwriters set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement shall remain in
full force and effect, regardless of (i) any investigation made by or on behalf
of the Company, any of its officers or directors, the Selling Stockholders, any
Underwriter or any controlling person referred to in Section 6 hereof and (ii)
delivery of and payment for the Shares. The respective agreements, covenants,
indemnities and other statements set forth in Sections 4, 6 and 10 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
Section 14. Severability.
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement would be held in
any jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 15. Governing Law.
The validity and interpretation of this Agreement, and the terms and
conditions set forth herein, shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any provisions
relating to conflicts of laws.
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If the foregoing is in accordance with your understanding, please sign
and return to us ten (10) counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in the Deutsche Xxxxxx Xxxxxxxx Inc. Master Agreement
Among Underwriters, the form of which shall be submitted to the Company and the
Selling Stockholders for examination upon request, but without warranty on your
part as to the authority of the signers thereof.
Very truly yours,
HNC SOFTWARE INC.
By:_________________________________________
President and Chief Executive Officer
XXXXXX X. XXXXXX
By: _________________________________________
Attorney-in-Fact
XXXXXXX X. XXXXXXXX, TRUSTEE
OF THE XXXXXXX XXXXXXXX
TRUST DATED AUGUST 11,1995
By:___________________________________________
Attorney-in-Fact
XXXXXX X. XXXXX
By:___________________________________________
Attorney-in-Fact
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The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
DEUTSCHE XXXXXX XXXXXXXX INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXX XXXXXX INC.
By: DEUTSCHE XXXXXX XXXXXXXX INC.
By: ____________________________
Name: __________________________
Title: _________________________
By: ____________________________
Name: __________________________
Title: _________________________
For themselves and on behalf of the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated: ___________ __, 1998
Other Representatives: BancAmerica Xxxxxxxxx Xxxxxxxx
Xxxxx Xxxxxx Inc.
Type of Offering:
Purchase Price of Securities:
Purchase price per share:
Closing Date, Time and Location: _____________ __, 1998, at the offices of
Fenwick & West LLP, Xxx Xxxx Xxxx Xxxxxx, Xxxx Xxxx, XX 00000.
Registration Statement No. 333-____
Number of days referred to in Section 3(a)(v): 90
Number of days referred to in Section 7(g): 90
Modification of items to be covered by the letter from Price Waterhouse LLP
delivered pursuant to Section 7(e) at the Closing Date:
37
SCHEDULE II
The Underwriters
UNDERWRITER UNDERWRITING COMMITMENT
----------- -----------------------
Deutsche Xxxxxx Xxxxxxxx Inc. __________________
BancAmerica Xxxxxxxxx Xxxxxxxx __________________
Xxxxx Xxxxxx Inc. __________________
38
SCHEDULE III
The Selling Stockholders
NUMBER OF SHARES NUMBER OF OPTION
SELLING STOCKHOLDERS TO BE SOLD SHARES TO BE SOLD
-------------------- ---------------- -----------------
Xxxxxx X. Xxxxxx......................... 1,035,000 157,500
c/o CompReview, Inc.
0000 Xxxx Xxxxxx Xxxxx, 0xx xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxxx X. Xxxxxxxx,..................... 1,035.000 157,500
Trustee of the Xxxxxxx
Xxxxxxxx Trust dated August 11, 1995
c/o CompReview, Inc.
0000 Xxxx Xxxxxx Xxxxx, 0xx xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxx X. Xxxxx ......................... 10,000 ---
Battery Ventures
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
--------- -------
Total................................ 2,080,000 315,000
========= =======
39
SCHEDULE IV
Listing of all States in which HNC and Subsidiaries do Business
HNC Software Inc.
Arizona
California
Connecticut
Delaware
Florida
Georgia
Illinois
Minnesota
Maryland
Nebraska
New York
North Carolina
Ohio
Pennsylvania
Texas
Utah
Xxxxxxxx
Xxxxxxxxxx
CompReview, Inc.
California
Texas
Retek Information Systems, Inc.
Minnesota
Texas
Illinois
Georgia
Indiana
Massachusetts
Pennsylvania
California
40
Risk Data Corporation
California
Arizona
Colorado
Minnesota
New York
Virginia
Aptex Software Inc.
California
Texas
Massachusetts
