Exhibit 1.1
MOLDFLOW CORPORATION
3,450,000 Shares*
Common Stock
($.01 par value per share)
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Underwriting Agreement
March __, 2000
Xxxxx, Xxxxxxxx & Xxxx, Inc.
X.X. Xxxxxxx & Sons, Inc.
As representatives of the several
Underwriters named in Schedule I hereto,
x/x Xxxxx, Xxxxxxxx & Xxxx, Xxx.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Dear Sirs:
Moldflow Corporation, a Delaware corporation (the "COMPANY"), proposes,
subject to the terms and conditions stated herein, to issue and sell to you and
the several Underwriters named in Schedule I hereto (collectively, the
"UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), an aggregate of 3,000,000 shares (the "FIRM SHARES") and, at
the election of the Underwriters, up to 181,656 additional shares (the "COMPANY
OPTIONAL SHARES") of common stock of the Company, $.01 par value per share
("COMMON STOCK"), and the selling stockholders named in Schedule II hereto
(collectively, the "SELLING STOCKHOLDERS"), propose, subject to the terms and
conditions stated herein, to sell to the Underwriters at the election of the
Underwriters up to an aggregate of 268,344 shares (the "SELLING STOCKHOLDER
OPTIONAL SHARES," and together with the Company Optional Shares, the "OPTIONAL
SHARES") of Common Stock. The Firm Shares and the Optional Shares, which the
Underwriters elect to purchase pursuant to Section 3 hereof, are herein
collectively called the "SHARES".
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
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* Includes 450,000 shares subject to an option to purchase additional
shares to cover over-allotments.
(a) A registration statement on Form S-1 (File No. 333-95289)
(the "INITIAL REGISTRATION STATEMENT") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"COMMISSION"); the Initial Registration Statement (including any
pre-effective amendments thereto) and any post-effective amendments
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"RULE 462(b) REGISTRATION STATEMENT"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "ACT"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement and incorporated by
reference in the Rule 462(b) Registration Statement, if any, or filed
with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"PRELIMINARY PROSPECTUS"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and including the information contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 6(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective or the
Rule 462(b) Registration Statement, if any, at the time it became
effective, each as amended at the time such part of such registration
statement became effective, are hereinafter collectively called the
"REGISTRATION STATEMENT"; and such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the
"PROSPECTUS");
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to 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; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein.
(c) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and
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regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable dates of the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus taken in light of the circumstances under which they were
made) not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through you expressly for use therein;
(d) There are no contracts or other documents required to be
described in the Registration Statement or to be filed as exhibits to
the Registration Statement by the Act or by the rules and regulations
thereunder which have not been described or filed as required; the
contracts so described in the Prospectus to which the Company or any of
its subsidiaries is a party have been duly authorized, executed and
delivered by the Company and its subsidiaries, as are party thereto,
constitute valid and binding agreements of the Company and its
subsidiaries, as are party thereto, and are enforceable in accordance
with their respective terms against the Company and its subsidiaries,
as are party thereto, and, to the Company's knowledge, by the Company
and its subsidiaries, as are party thereto, against the other parties
thereto, and are in full force and effect on the date hereof; and
neither the Company nor any of its subsidiaries, nor, to the best of
the Company's knowledge, any other party is in breach of or default
under any of such contracts, except as set forth in the Prospectus or
for such breaches or defaults that will not result in a material
adverse change in the business, assets, management, financial position
or results of operations of the Company and its subsidiaries taken as a
whole (hereinafter, a "MATERIAL ADVERSE CHANGE");
(e) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, except as set forth in the Prospectus or as
would not have a Material Adverse Change; and, since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the capital stock
(other than issuances of Common Stock pursuant to Company stock option
and stock purchase plans described in the Registration Statement and
Prospectus) or long-term debt of the Company or any of its subsidiaries
or any Material Adverse Change, otherwise than as set forth in the
Prospectus;
(f) The Company and its subsidiaries have good title to all
properties and assets described in the Prospectus as owned by it, in
each case free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the
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Prospectus or are not material to the business of the Company; any real
property and buildings held under lease by the Company or any of its
subsidiaries are held under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by the
Company and its subsidiaries; the Company and its subsidiaries own or
lease all such properties as are necessary to their operations as now
conducted or as proposed to be conducted, except where the failure to
so own or lease would not result in a Material Adverse Change;
(g) Each of the Company and its subsidiaries has been duly
incorporated and exists as a corporation in good standing under the
laws of its respective jurisdiction of organization, each with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and each has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualification, except where the failure to be so qualified
in any such jurisdiction would not result in a Material Adverse Change;
(h) The Company has an authorized capitalization as set forth
in the Prospectus, and all the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid
and non-assessable and conform in all material respects to the
description of the Common Stock contained in the Prospectus; all of the
issued shares of capital stock of each subsidiary of the Company (i)
have been duly authorized and validly issued, are fully paid and
non-assessable and (ii) except as disclosed in the Prospectus and for
pledges pursuant to the Loan Agreement, as amended, between the Company
and Silicon Valley Bank and for any liens, encumbrances or claims on
the Company's assets created in the ordinary course of business, are
owned of record by the Company or a wholly-owned subsidiary of the
Company, free and clear of all liens, encumbrances or claims; except as
disclosed in the Prospectus, neither the Company nor any subsidiary has
outstanding any options to purchase, or any preemptive rights or other
rights to subscribe for or to purchase any securities or obligations
convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights, convertible
securities or obligations;
(i) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly authorized and, when
issued and delivered against payment therefor as provided herein, will
be validly issued and fully paid and non-assessable and will conform in
all material respects to the description of the Common Stock contained
in the Prospectus; no preemptive rights or other rights to subscribe
for or purchase exist with respect to the issuance and sale of the
Shares by the Company pursuant to this Agreement; no stockholder of the
Company has any right, which has not been satisfied or waived, to
require the Company to register the sale of
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any shares of capital stock owned by such stockholder under the Act in
the public offering contemplated by this Agreement (except with respect
to the Shares to be sold by the Selling Stockholders pursuant to this
Agreement); no stockholder of the Company has any right to require the
Company to register the sale of any shares of capital stock owned by
such stockholder under the Act in the 180-day period after the date of
the Prospectus other than "piggy-back" registration rights; and no
further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance and sale of
the Shares to be sold by the Company as contemplated herein;
(j) The Company has full corporate power and authority to
enter into this Agreement; this Agreement has been duly authorized,
executed and delivered by the Company, constitutes a valid and binding
obligation of the Company and is enforceable against the Company in
accordance with its terms;
(k) The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or similar documents of any of its subsidiaries or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets; and no consent, approval,
authorization, order, filing, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Act of the Shares and such consents, approvals,
authorizations, filings, registrations or qualifications as may be
required under state securities or Blue Sky laws or the by-laws and
rules of the National Association of Securities Dealers, Inc. ("NASD")
in connection with the purchase and distribution of the Shares by the
Underwriters;
(l) Except as disclosed in the Prospectus, there are no legal
or governmental actions, suits or proceedings pending or, to the best
of the Company's knowledge, threatened to which the Company or any of
its subsidiaries is or may be a party or of which property owned or
leased by the Company or any of its subsidiaries is or may be the
subject, or related to environmental or discrimination matters, which
actions, suits or proceedings, would adversely affect the transactions
contemplated by this Agreement or would, if adversely determined,
result in a Material Adverse Change; no labor
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disturbance by the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent which would
result in a Material Adverse Change; and neither the Company nor any of
its subsidiaries is a party or subject to the provisions of any
injunction, judgment, decree or order of any court, regulatory body,
administrative agency or other governmental body which might be
expected to result in a Material Adverse Change;
(m) The Company and its subsidiaries possess all licenses,
certificates, authorizations or permits that are necessary to enable
them to own, lease and operate their respective properties and to carry
on their respective businesses as presently conducted and which the
failure to possess would result in a Material Adverse Change, and
neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the
aggregate, would be expected to result in a Material Adverse Change;
(n) The Company and its subsidiaries are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
including without limitation those relating to occupational safety and
health, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants, including without limitation those relating
to the storage, handling or transportation of hazardous or toxic
materials (collectively, "ENVIRONMENTAL LAWS"), except where such
noncompliance with Environmental Laws would not, singly or in the
aggregate, be expected to result in a Material Adverse Change;
(o) PricewaterhouseCoopers LLP, who have audited certain
financial statements of the Company, are independent public accountants
within the meaning of the Act and the rules and regulations of the
Commission thereunder;
(p) The consolidated financial statements and schedules of the
Company, and the related notes thereto, included in the Registration
Statement and the Prospectus present fairly in all material respects
the financial position of the Company as of the respective dates of
such financial statements and schedules, and the results of operations
and cash flows of the Company for the respective periods covered
thereby; such statements, schedules and related notes have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis as certified by the independent public
accountants named in paragraph (o) above; no other financial statements
or schedules are required to be included in the Registration Statement;
and the selected financial data set forth in the Prospectus under the
captions "Summary Financial Data," "Capitalization," "Selected
Financial Data," "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Results of Operations" and
"Management's Discussion and Analysis of Financial Condition and
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Results of Operations--Selected Quarterly Results of Operations"
present fairly in all material respects the information set forth
therein on the basis stated in the Registration Statement;
(q) Except as disclosed in the Registration Statement and
Prospectus, the Company and its subsidiaries own or possess all
trademarks, trade names, patent rights, copyrights, licenses, trade
secrets and proprietary rights necessary to conduct their business as
now conducted; the Company has not received notice of any infringement
by the Company or its subsidiaries of trademark, trade name, patent,
copyrights, licenses, trade secret, proprietary or other similar rights
of others; and there is no claim of infringement being made against the
Company regarding trademark, trade name, patent, copyright, license,
trade secret, proprietary or other similar rights; except as disclosed
in the Registration Statement and Prospectus, none of the technology
employed by the Company or any of its subsidiaries has been obtained or
is being used by the Company or any of its subsidiaries in violation of
any contractual obligation binding on the Company or any of its
subsidiaries or, to the Company's knowledge, any of their respective
officers, directors, employees or consultants or otherwise in violation
of the rights of any person; none of the Company or any of its
subsidiaries and, to the Company's knowledge, none of its employees has
received any written or oral communications alleging that the Company
or any of its subsidiaries has violated or, by conducting its business
as proposed, would violate any of the intellectual property or
proprietary rights of any other person or entity; neither the operation
of the business of the Company and its subsidiaries by the employees of
the Company or any of its subsidiaries, nor the conduct of the business
of the Company and its subsidiaries as proposed, will, to the Company's
knowledge, result in a breach or violation of the terms, conditions or
provisions of, or constitute a default under, any material contract,
covenant or instrument under which any of such employees is now
obligated; and the Company and its subsidiaries have taken reasonable
measures to prevent the unauthorized dissemination or publication of
its confidential information or the confidential information of third
parties in its possession;
(r) The Company and each of its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns
and have paid all taxes shown as due thereon; and, except as disclosed
in the Registration Statement and Prospectus, the Company has not
received any notice of any tax deficiency which has been or is
reasonably likely to be asserted against the Company or any of its
subsidiaries which would result in a Material Adverse Change;
(s) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT");
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(t) Each of the Company and its subsidiaries maintains
insurance of the types and in the amounts which it reasonably deems
adequate for its business, including, but not limited to, insurance
covering real and personal property owned or leased by the Company and
its subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against by companies engaged in
businesses substantially similar to that of the Company, all of which
insurance is in full force and effect;
(u) Neither the Company nor any of its subsidiaries has at any
time during the last five years (i) made any unlawful contribution to
any candidate for foreign office, or failed to disclose fully any
contribution in violation of law, or (ii) made any payment to any
foreign, federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof;
(v) The Company has not taken and will not take, directly or
indirectly through any of its directors, officers or controlling
persons, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(w) The Company has filed a registration statement pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), to register the Common Stock, has filed an application
to list the Common Stock on the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") National Market System and
has received notification that the listing has been approved, subject
to notice of issuance of the Shares;
(x) Moldflow International Pty. Ltd., Moldflow Pty. Ltd.,
Moldflow Italia s.r.l., Moldflow (Europe) Ltd., Moldflow Vertriens
GmbH, Moldflow France S.A.R.L. and Moldflow Japan K.K. constitute each
of the subsidiaries of the Company that accounted for at least ten
percent (10%) of the consolidated total revenue of the Company in the
fiscal year ended June 30, 1999 or in the six months ended January 1,
2000 (each a "MATERIAL SUBSIDIARY"). In the aggregate, the Material
Subsidiaries accounted for at least 90% of the consolidated total
revenue and at least 90% of the consolidated total assets of the
Company; and
(y) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or any of its
subsidiaries has been or will be affected by the Year 2000 Problem. As
a result of such review, the Company has no reason to believe, and does
not believe, that the Year 2000 Problem has had or will result in a
Material Adverse Change. The
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"YEAR 2000 PROBLEM" as used herein means any significant risk that
computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as
in the case of dates or time periods occurring prior to January 1,
2000.
2. REPRESENTATIONS AND AGREEMENTS OF THE SELLING STOCKHOLDERS. Each of
the Selling Stockholders, severally and not jointly, represents and warrants to,
and agrees with, each of the Underwriters that:
(a) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of
this Agreement and the Power-of-Attorney and Custody Agreement (the
"CUSTODY AGREEMENT") hereinafter referred to, and for the sale and
delivery of the Shares to be sold by such Selling Stockholder
hereunder, have been obtained; and such Selling Stockholder has full
right, power and authority to enter into this Agreement and the Custody
Agreement and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder hereunder;
(b) This Agreement and the Custody Agreement have each been
duly authorized, executed and delivered by such Selling Stockholder and
each such document constitutes a valid and binding obligation of such
Selling Stockholder, enforceable against such Selling Stockholder in
accordance with its terms;
(c) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body
with respect to such Selling Stockholder is required in connection with
the sale of the Shares by such Selling Stockholder or the consummation
by such Selling Stockholder of the transactions on his, her or its part
contemplated by this Agreement and the Custody Agreement, except such
as have been obtained under the Act or the rules and regulations
thereunder and such as may be required under state securities or Blue
Sky laws or the by-laws and rules of the NASD in connection with the
purchase and distribution by the Underwriters of the Shares;
(d) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the performance by such Selling Stockholder
of this Agreement and the Custody Agreement and the consummation of the
transactions contemplated hereby and thereby will not result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, or give any party a right to terminate any of its
obligations under, or result in the acceleration of any obligation
under, any material indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or other
evidence of indebtedness, lease, contract, agreement or instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder or any of his,
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her or its properties is bound or affected, or violate or conflict with
the organizational documents, if any, of such Selling Stockholder any
judgment, ruling, decree, order, statute, rule or regulation of any
court or other governmental agency or body applicable to such Selling
Stockholder;
(e) Such Selling Stockholder has, and at the First Time of
Delivery (as defined in Section 5 hereof) will have, good and valid
title to the Shares to be sold by such Selling Stockholder hereunder,
free and clear of all liens, encumbrances or claims except those
created by this Agreement and the Custody Agreement; and, upon delivery
of such Shares and payment therefor pursuant hereto, good and valid
title to such Shares, free and clear of all liens, encumbrances or
claims, will pass to each of the several Underwriters who have
purchased such Shares in good faith and without notice of any such
lien, encumbrance or claim or any other adverse claim within the
meaning of the Uniform Commercial Code;
(f) Such Selling Stockholder has not taken and will not at any
time take, directly or indirectly, any action designed, or which might
reasonably be expected, to cause or result in, or which will
constitute, stabilization of the price of shares of Common Stock to
facilitate the sale or resale of any of the Shares.
(g) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in
conformity with written information about such Selling Stockholder
furnished to the Company by such Selling Stockholder expressly for use
therein, such statements contained in the Preliminary Prospectus and
the Registration Statement in reliance thereon did, and such statements
contained in the Prospectus and any further amendments or supplements
to the Registration Statement and the Prospectus will, when they become
effective or are filed with the Commission, as the case may be, 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 not misleading.
In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 with respect to the transactions herein contemplated, each Selling
Stockholder agrees to deliver to you prior to or at the First Time of Delivery a
properly completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
Each of the Selling Stockholders represents and warrants that a
certificate in negotiable form representing shares of the Company's class C
preferred Stock, par value $.01 per share, which upon consummation of the
transactions contemplated hereby and by the Prospectus convert into the Shares
to be sold by such Selling Stockholder has been placed in custody under
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the Custody Agreement, in the form heretofore furnished to you, duly executed
and delivered by such Selling Stockholder to the Custodian (as defined in the
Custody Agreement), and that such Selling Stockholder has duly executed and
delivered a power-of-attorney, in the form heretofore furnished to you and
included in the Custody Agreement (the "POWER-OF-ATTORNEY"), appointing Marc X.
X. Xxxxxx and Xxxxxxx X. Xxxxxx, and each of them, as such Selling Stockholder's
attorney-in-fact (the "ATTORNEY-IN-FACT") with authority to execute and deliver
this Agreement on behalf of such Selling Stockholder, to determine (subject to
the provisions of the Custody Agreement) the purchase price to be paid by the
Underwriters to such Selling Stockholder as provided in Section 3 hereof, to
authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the Custody
Agreement.
Each of the Selling Stockholders specifically agrees that the Shares
represented by the certificates held in custody for such Selling Stockholder
under the Custody Agreement are subject to the interests of the Underwriters
hereunder, and that the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power-of-Attorney, are to that extent irrevocable. Each
of the Selling Stockholders specifically agrees that the obligations of such
Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of such Selling Stockholder or, in the case
of an estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by the
occurrence of any other event. If such Selling Stockholder or any such executor
or trustee should die or become incapacitated, or if any such estate or trust
should be dissolved, or if such corporation or partnership should be dissolved,
or if any other such event should occur, before the delivery of the Shares
hereunder, certificates representing the Shares to be sold by such Selling
Stockholder shall be delivered by or on behalf of such Selling Stockholder in
accordance with the terms and conditions of this Agreement and of the Custody
Agreement, and actions taken by the Attorneys-in-Fact pursuant to the
Powers-of-Attorney shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of
such death, incapacity, termination, dissolution or other event.
3. SHARES SUBJECT TO SALE. (a) On the basis of the representations,
warranties and agreements of the Company and the Selling Stockholders contained
herein, and subject to the terms and conditions of this Agreement, (i) the
Company agrees to issue and sell the Firm Shares to the several Underwriters and
(ii) each of the Underwriters agrees, severally and not jointly, to purchase
from the Company, at a purchase price per share of $[____], the respective
number of Firm Shares (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying the aggregate number of Firm Shares by a
fraction, the numerator of which is the aggregate number of Firm Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter
in Schedule I hereto and the denominator of which is
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the aggregate number of Firm Shares to be purchased by all the Underwriters and
(b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, (i) the Company agrees
to issue and sell the Company Optional Shares to the several Underwriters, (ii)
each of the Selling Stockholders agrees, severally and not jointly, to sell his,
her or its respective Selling Stockholder Optional Shares to the several
Underwriters and (iii) each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholders, at the
purchase price per share set forth in clause (a) of this Section 3, that portion
of the number of Optional Shares as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of the Optional Shares which all of the Underwriters are entitled to
purchase hereunder.
The Company and the Selling Stockholders, as and to the extent
indicated in Schedule II hereto, each hereby grants, severally and not jointly,
to the Underwriters the right to purchase at their election up to 181,656
Company Optional Shares and 268,344 Selling Stockholder Optional Shares,
respectively, at the purchase price per share set forth in the paragraph above,
for the sole purpose of covering overallotments in the sale of the Firm Shares.
Any such election to purchase Optional Shares shall be made in proportion to the
maximum number of Optional Shares to be sold by the Company and each of the
Selling Stockholders. Any such election to purchase Optional Shares may be
exercised by written notice from you to the Company, given within a period of 30
calendar days after the date of this Agreement and setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by you but in no event earlier than
the First Time of Delivery or, unless you and the Company otherwise agree in
writing, earlier than two or later than three business days after the date of
such notice.
4. OFFERING. Upon the authorization by you of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
5. CLOSING. Certificates in definitive form for the Shares to be
purchased by each Underwriter hereunder, and in such denominations and
registered in such names as Xxxxx, Xxxxxxxx & Xxxx, Inc. may request upon at
least forty-eight hours' prior notice to the Company and the Attorneys-in-Fact,
shall be delivered by or on behalf of the Company and each of the Selling
Stockholders to you for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
same day funds, all at the office of Xxxxx, Xxxxxxxx & Xxxx, Inc., 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The time and date of such delivery and
payment shall be, with respect to the Firm Shares, 9:30 a.m., Boston time, on
March __, 2000 or such other time and date as you and the Company may agree upon
in writing, and, with respect to the Optional Shares, 9:30 a.m.,
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Boston time, on the date specified by you in the written notice given by you of
the Underwriters' election to purchase such Optional Shares, or at such other
time and date as you and the Company may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "FIRST TIME OF
DELIVERY," such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "SECOND TIME OF DELIVERY," and each
such time and date for delivery is herein called a "TIME OF DELIVERY." Such
certificates will be made available for checking and packaging at least twenty
four hours prior to each Time of Delivery at such location as you may specify.
6. COVENANTS OF THE COMPANY. The Company agrees with each of the
Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when the Registration
Statement, or any amendment thereto, has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish you copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or Prospectus, of the suspension
of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
in such quantities as you may from time to time reasonably request,
and, if the delivery of a prospectus is required by law at any time
prior to the expiration of nine months after
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the time of issuance of the Prospectus in connection with the offering
or sale of the Shares and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus in order to comply with the Act, to notify
you and upon your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required by law to deliver a prospectus in connection with sales of any
of the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies
as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than the forty-fifth (45th)
day following the end of the full fiscal quarter first occurring after
the first anniversary of the effective date of the Registration
Statement (as defined in Rule 158(c)), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of any securities of the Company which are substantially similar to the
Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Common Stock or any such substantially similar securities
(other than (i) the sale of the Shares to be sold by the Company
hereunder, (ii) the Company's issuance of shares upon exercise of
outstanding options and the award of options under the Company's 2000
Stock Option and Incentive Plan and Employee Stock Purchase Plan and
(iii) the Company's issuance of shares of Common Stock upon the
conversion of the outstanding shares of the Company's class C Preferred
Stock, par value $.01 per share, in connection with the consummation of
the transactions contemplated hereby and by the Prospectus), without
your prior written consent.
(f) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders of
the Company generally, and deliver to you as soon as they are
available, copies of any reports and financial statements furnished to
or filed
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with the Commission, the Nasdaq National Market or any national
securities exchange on which any class of securities of the Company is
listed (such financial statements to be on a combined or consolidated
basis to the extent the accounts of the Company and its subsidiaries
are combined or consolidated in reports furnished to its stockholders
generally or to the Commission);
(g) To use the net proceeds acquired by it from the sale of
the Shares in the manner specified in the Prospectus under the caption
"Use of Proceeds" and in a manner such that the Company will not become
an "investment company" as that term is defined in the Investment
Company Act;
(h) Not to file with the Commission any registration statement
on Form S-8 relating to shares of its Common Stock prior to 180 days
after the effective date of the Registration Statement (other than with
respect to the Company's Employee Stock Purchase Plan which may be
filed at any time); and
(i) Not to accelerate the vesting of any option issued under
any stock option plan such that any such option may be exercised within
180 days from the date of the Prospectus (other than in connection with
a sale of the Company).
7. COVENANTS OF THE SELLING STOCKHOLDERS. Each Selling Stockholder
agrees to pay or cause to be paid all taxes, if any, on the transfer and sale of
the Shares to be sold by such Selling Stockholder hereunder and the fees and
expenses, if any, of counsel and accountants retained by such Selling
Stockholder. The Company agrees with the Selling Stockholders to pay all costs
and expenses incident to the performance of the obligations of the Selling
Stockholders under this Agreement (except as set forth above), including, but
not limited to, all expenses incident to the delivery of the certificates for
the Shares to be sold by such Selling Stockholder, the costs and expenses
incident to the preparation, printing and filing of the Registration Statement
(including all exhibits thereto), all Preliminary Prospectuses and the
Prospectus and any amendments or supplements thereto, the expenses of qualifying
the Shares to be sold by the Selling Stockholders under the state securities or
Blue Sky laws, all filing fees and the reasonable fees and expenses of counsel
for the Underwriters payable in connection with the review of the offering of
the Shares by the NASD, and the cost of furnishing to the Underwriters the
required copies of the Registration Statement, all Preliminary Prospectuses and
the Prospectus and any amendments or supplements thereto; PROVIDED that each
Selling Stockholder agrees to pay or cause to be paid its pro rata share (based
on the percentage which the number of Shares sold by such Selling Stockholder
bears to the total number of Shares sold) of all underwriting discounts and
commissions.
8. EXPENSES. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and
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filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing,
producing and reproducing any Agreement among Underwriters, this Agreement, the
Blue Sky Memorandum and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses and filing fees in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 6(b) hereof and the filing fees
incident to securing any required review by the NASD of the terms of the sale of
the Shares; (iv) the fees and disbursements of counsel for the Underwriters in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 6(b) hereof and in connection with
the Blue Sky survey (including the fees and disbursements of counsel for the
Underwriters in connection with the qualification of the Shares for offering and
sale in connection with the directed share program), and the fees and expenses
of counsel to the Underwriters incident to securing any required review by the
NASD of the terms of the sale of the Shares, all subject to a maximum of
$[______]; (v) the cost of preparing stock certificates; (vi) the cost and
charges of any transfer agent or registrar; and (vii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, Section 10 and Section 13 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
and expenses of their counsel, stock transfer taxes on resale of any of the
Shares by them, and any advertising expenses connected with any offers they may
make.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, to the condition that all representations and
warranties and other statements of the Company and each Selling Stockholder (if
applicable) herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company and each Selling Stockholder (if applicable)
shall each have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 6(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Ropes & Xxxx, counsel to the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to this Agreement, the Registration Statement, the
Prospectus and other related matters as you may reasonably request;
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(c) Xxxxxxx, Procter & Xxxx LLP, counsel to the Company, shall
have furnished to you their written opinion, dated such Time of
Delivery, in form and substance reasonably satisfactory to you, with
respect to the matters set forth in Annex I hereto;
(d) On the effective date of the Registration Statement at a
time prior to execution of this Agreement, at 9:30 a.m. Boston time on
the effective date of the most recently filed post-effective amendment
to the Registration Statement and at each Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters, dated the respective date of delivery thereof, in form and
substance reasonably satisfactory to you, to the effect set forth in
Annex II hereto;
(e) (i) Neither the Company nor any of its subsidiaries have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in the Prospectus,
and (ii) since the respective dates as of which information is given in
the Prospectus, there shall not have been any change in the capital
stock (other than issuances of Common Stock pursuant to the Company's
1997 Equity Incentive Plan or upon exercise of an outstanding warrant
described in the Registration Statement and Prospectus) or long-term
debt of the Company or any change, or any development involving a
prospective change, in or affecting the business, assets, management,
financial position or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(f) On or after the date hereof there shall not have occurred
any of the following: (i) additional material governmental
restrictions, not in force and effect on the date hereof, shall have
been imposed upon trading in securities generally or minimum or maximum
prices shall have been generally established on the New York Stock
Exchange or on the American Stock Exchange or in the NASDAQ National
market, or trading in securities generally or in the Shares shall have
been suspended or materially limited on the NASDAQ National Market, or
a general banking moratorium shall have been established by federal,
New York or Massachusetts authorities, or (ii) an outbreak or
escalation of hostilities or other national or international calamity
or any substantial change in political, financial or economic
conditions shall have occurred or shall have accelerated or escalated
to such an extent, as, in the judgment of the Representatives, to
affect adversely the marketability of the Shares;
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(g) The Shares to be sold by the Company at such Time of
Delivery shall have been accepted for quotation, subject to notice of
issuance, on the Nasdaq National Market System;
(h) Each director and officer of the Company and each Selling
Stockholder shall have executed and delivered to you a lock-up
agreement in form and substance reasonably satisfactory to you;
(i) The Company and each Selling Stockholder shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and of such Selling
Stockholder, respectively, in their capacities as such, reasonably
satisfactory to you, as to the accuracy of the representations and
warranties of the Company and of such Selling Stockholder,
respectively, herein at and as of such Time of Delivery, as to the
performance by the Company and of such Selling Stockholder,
respectively, of all of his, her or its obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other
matters as you may reasonably request and the Company shall have
furnished or caused to be furnished certificates as to the matters set
forth in subsections (a), (e), (g) and (h) of this Section, and as to
such other matters as you may reasonably request;
(j) Local counsel to each Material Subsidiary shall have
furnished to you their respective written opinions, dated such Time of
Delivery, in form and substance reasonably satisfactory to you, with
respect to the matters set forth in Annex III hereto; and
(k) Counsel to each Selling Stockholder shall have furnished
to you their respective written opinions, dated such Time of Delivery,
in form and substance reasonably satisfactory to you, with respect to
the matters set forth in Annex IV hereto.
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act (each, a "COMPANY
INDEMNIFIED PARTY") against any losses, claims, damages or liabilities,
joint or several (a "LOSS"), to which any Company Indemnified Party may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse any
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Company Indemnified Party for any legal or other expenses reasonably
incurred by such Company Indemnified Party in connection with
investigating or defending any such action or claim as such expenses
are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such Loss arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through you expressly for
use therein.
(b) Each Selling Stockholder, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter and each person,
if any, who controls such Underwriter within the meaning of Section 15
of the Act (each, a "SELLING STOCKHOLDER INDEMNIFIED PARTY") against
any Loss to which any Selling Stockholder Indemnified Party may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse any Selling Stockholder Indemnified Party for any legal or
other expenses reasonably incurred by such Selling Stockholder
Indemnified Party in connection with investigating or defending any
such action or claim as such expenses are incurred; PROVIDED, HOWEVER,
that this indemnity shall apply with respect to such Selling
Stockholder only to the extent that any such Loss arises out of or is
based upon an untrue statement or alleged untrue statement, or omission
or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished by such Selling Stockholder specifically for use
in the preparation thereof; AND, PROVIDED, FURTHER, that such Selling
Stockholder shall not be liable in any such case to the extent that any
such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through you expressly for use therein. In no event shall any Selling
Stockholder be liable or responsible under this Agreement for any
amount in the aggregate in excess of the net proceeds received by such
Selling Stockholder with respect to the Shares sold by such Selling
Stockholder.
(c) Each Underwriter will, severally and not jointly,
indemnify and hold harmless the Company, each Selling Stockholder, each
of the directors of the Company, each of the officers of the Company
who shall have signed the Registration
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Statement, and each other person, if any, who controls the Company or
any Selling Stockholder within the meaning of Section 15 of the Act
(each, an "UNDERWRITER INDEMNIFIED PARTY") against any Loss to which
any Underwriter Indemnified Party may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, 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 any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for
use therein; and will reimburse any Underwriter Indemnified Party for
any legal or other expenses reasonably incurred by it or them in
connection with investigating or defending any such action or claim as
such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; no
indemnification shall be available hereunder to any party who shall
fail to give notice as provided in the preceding sentence if, and only
to the extent that, the party to whom such notice was not given was
unaware of the action, suit, investigation, inquiry or proceeding to
which the notice would have related and was materially prejudiced by
the failure to give such notice, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified party is an actual
or potential party to such action or claim) unless such settlement,
compromise or
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judgment (i) includes an unconditional release of the indemnified party
from all liability arising out of such action or claim and (ii) does
not include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party 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 the relative benefits received
by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (d) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
and the Selling Stockholders on the one hand and the Underwriters on
the other in connection with the statements or omissions which 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 net proceeds from the offering
(before deducting expenses) received by the Company and the Selling
Stockholders, respectively, bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or any Selling Stockholder on the one hand or
the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Selling Stockholders and
the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to
the public exceeds the
-21-
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and no Selling Stockholder shall be
required to contribute any amount in excess of the net proceeds
received by such Selling Stockholder with respect to the Shares sold by
such Selling Stockholder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their
respective underwriting obligations and not joint.
11. TERMINATION.
(a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time
of Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Shares on the terms contained
herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then
the Company and the Selling Stockholders shall be entitled to a further
period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such
terms. In the event that, within the respective prescribed periods, you
notify the Company and the Selling Stockholders that you have so
arranged for the purchase of such Shares, or the Company and the
Selling Stockholders notifies you that they have so arranged for the
purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone such Time of Delivery for
a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to this
Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed
one-tenth of the aggregate number of all the Shares to be purchased at
such Time of Delivery, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery
and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such
defaulting Underwriter or Underwriters for which such arrangements have
not been
-22-
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-tenth of
the aggregate number of all the Shares to be purchased at such Time of
Delivery, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter, the Company or any Selling Stockholder,
except for the expenses to be borne by the Company, any Selling
Stockholder and the Underwriters as provided in Section 8 hereof and
the indemnity and contribution agreements in Section 10 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default.
12. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company, each Selling Stockholder and the
several Underwriters, as 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 any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or any Selling Stockholder, or any officer or
director or controlling person of the Company or any Selling Stockholder and
shall survive delivery of and payment for the Shares.
13. EXPENSES OF TERMINATION. If this Agreement shall be terminated
pursuant to Section 11 hereof, neither the Company nor any Selling Stockholder
shall then have any liability to any Underwriter except as provided in Section 8
and Section 10 hereof; but, if for any other reason this Agreement is
terminated, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but neither the Company nor any Selling
Stockholder shall have any further liability to any Underwriter in respect of
the Shares not so delivered except as provided in Section 8 and Section 10
hereof.
14. NOTICE. 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 you jointly or by Xxxxx, Xxxxxxxx & Xxxx, Inc. on behalf of you
as the Representatives.
-23-
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of Xxxxx, Xxxxxxxx
& Xxxx, Inc., 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx; if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: President, with a copy to Xxxxxx X. Cable, P.C., Xxxxxxx,
Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx, XX 00000-0000; and if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to the address of such Selling Stockholder set forth in Schedule II hereto;
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 10(d)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriter's Questionnaire or
telex constituting such Questionnaire, which address will be supplied to the
Company by you on request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
15. MISCELLANEOUS.
(a) This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and the Selling
Stockholders and, to the extent provided in Sections 10 and 12 hereof,
the officers and directors of the Company and each person who controls
the Company, any Selling Stockholder or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
(b) Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(d) This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
-24-
If the foregoing is in accordance with your understanding, please sign
and return to us six 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 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 a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination, upon request, but without warranty on
your part as to the authority of the signors thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact
for the Selling Stockholders represents by so doing that he has been duly
appointed as Attorney-in-Fact by each Selling Stockholder pursuant to a validly
existing and binding Power-of-Attorney which authorizes such Attorney-in-Fact to
take such action.
Very truly yours,
MOLDFLOW CORPORATION
By:_______________________________
Marc X. X. Xxxxxx
President and Chief Executive Officer
SELLING STOCKHOLDERS
(Name in Schedule II to the Agreement)
By:_______________________________
Name:
Title: Attorney-in-Fact
Accepted as of the date
hereof at Boston, Massachusetts
XXXXX, XXXXXXXX & XXXX, INC.
X.X. XXXXXXX & SONS, INC.
By:_______________________________
(Xxxxx, Xxxxxxxx & Xxxx, Inc.
On behalf of each of
the Underwriters)
S-1
SCHEDULE I
Total Number of Number of Optional Shares to
Firm Shares to be Purchased if Maximum
be Purchased Option Exercised
------------ ----------------
Xxxxx, Xxxxxxxx & Xxxx, Inc.
X.X. Xxxxxxx & Sons, Inc.
============ ================
TOTAL 3,000,000 450,000
S-2
SCHEDULE II
Total Number of Firm Total Number of Optional
Shares to be Sold Shares to be Sold
----------------- -----------------
The Company 3,000,000 181,656
JTC Investment Management --------- 204,177
Pty. Ltd.
000 Xxxxxxx Xxxxxx, Xxxxxxxxx
XXX 0000, Xxxxxxxxx
Lombard Capital Fund LLC --------- 35,000
c/o Asiaciti Corp. Services Pte.
Ltd., 0 Xxxxxxx Xxxxx, #00-00
Xxxxxx Xxxxxxxx, Xxxxxxxxx
000000
Floatflow Pty. Ltd., --------- 29,167
c/o Xxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxxx, Xxxxxxx,
XXX 0000, Xxxxxxxxx
============ ================
TOTAL 3,000,000 450,000
ANNEX I
Matters to be Covered in the Opinion of Xxxxxxx, Procter & Xxxx LLP
1. The Company is a corporation duly incorporated and existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power to conduct its business as described in the Registration
Statement and Prospectus. The Company is duly qualified to do business and is in
good standing in each jurisdiction listed on Annex A to this opinion.
2. The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued and outstanding shares of capital stock of the
Company (other than the Shares) have been duly authorized, validly issued, and
are fully paid and non-assessable. The Shares have been duly authorized and when
issued and paid for as contemplated by the Underwriting Agreement will be
validly issued, fully paid and non-assessable; and the Shares conform in all
material respects to the description of the capital stock contained in the
Prospectus;
3. Each direct or indirect domestic subsidiary of the Company listed on
Annex B to the opinion is a corporation duly incorporated and existing as a
corporation in good standing under the laws of its jurisdiction of organization.
All of the issued and outstanding shares of capital stock of each such
subsidiary have been duly authorized, validly issued, are fully paid and
non-assessable, and are owned of record by the Company or a wholly-owned
subsidiary of the Company free and clear of all liens, encumbrances or claims
known to such counsel (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of matters
of fact upon certificates of officers of the Company and its subsidiaries).
4. The Company has full corporate power and authority to enter into the
Underwriting Agreement and the Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
5. The issuance and sale by the Company of the Shares and the
performance by the Company of its obligations under the Underwriting Agreement
does not and will not (i) result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company, (ii) result in a breach
or a default on the part of the Company under any agreement, indenture or other
instrument filed as an exhibit to the Registration Statement to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound, or to which any of their respective properties is
subject, or (iii) violate any existing Massachusetts or federal statute or any
order, rule or regulation or any decree known to such counsel of any court or
any governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties, except that
I-1
such counsel need express no opinion as to state securities or "Blue Sky" laws
or as to compliance with the antifraud provisions of federal and state
securities laws.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required to
be obtained by the Company for the issuance and sale of the Shares by the
Company or the consummation by the Company of the transactions contemplated by
the Underwriting Agreement, except the registration of the Shares under the Act
and the rules and regulations thereunder and except as may be required under
state securities or Blue Sky laws (as to which such counsel need express no
opinion).
7. The Company is not an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company" as
defined in the Investment Company Act.
8. Immediately prior to the Closing, each Selling Stockholder was the
record owner of the Shares to be sold by such Selling Stockholder. Upon payment
by the Underwriters of the purchase price in accordance with the Underwriting
Agreement, and upon registration of the Shares in the names of the Underwriters
in the stock records of the Company (or in the name of a nominee for DTC in such
stock records, with appropriate entries to the account of the Underwriters
having been made in the records of DTC), the Underwriters will have acquired
such Selling Stockholder's rights in the Shares that such Selling Stockholder
had or had the power to transfer, free of any adverse claim (assuming that the
Underwriters are without notice of any such claim and assuming such transfer is
governed by the Massachusetts UCC).
Such counsel shall also state that as counsel to the Company, they have
reviewed the Registration Statement and the Prospectus, participated in
discussions with your representatives, those of counsel for the Underwriters,
and those of the Company and its accountants. On the basis of the information
that such counsel gained in the course of the performance of the services
referred to above, considered in the light of such counsel's understanding of
the applicable law and the experience such counsel has gained through its
practice under the Act, such counsel will confirm to you that such counsel
believes that the Registration Statement, as of its effective date, and the
Prospectus, as of the date of the Prospectus, appeared on their face to be
appropriately responsive in all material respects to the requirements of the Act
and the applicable rules and regulations thereunder. Further, nothing that came
to such counsel's attention in the course of such review has caused such counsel
to believe that the Registration Statement, as of its effective date, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of the date of the Prospectus, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
I-2
In addition, such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company or its
subsidiaries that would be required to be disclosed in the Prospectus that is
not so disclosed. Also, such counsel does not know of any documents that are
required to be filed as exhibits to the Registration Statement and are not so
filed or of any documents that are required to be summarized in the Registration
Statement and the Prospectus and are not so summarized.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such, however, that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for those made under the
captions "Description of Capital Stock," "Shares Eligible for Future Sale" and
"Underwriting" (but only with respect to the description of the Underwriting
Agreement set forth therein) in the Prospectus, insofar as they accurately
summarize in all material respects the provisions of the laws and documents
referred to therein. Also, such counsel does not express any opinion or belief
as to the financial statements and related schedules or any other financial and
accounting information contained in the Registration Statement or the
Prospectus.
Such counsel shall also include a statement in such opinion as to the
matters set forth in this paragraph. The Registration Statement has become
effective under the Act. To the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued by
the Commission nor has any proceeding been instituted or contemplated for that
purpose under the Act. The Prospectus has been filed with the Commission
pursuant to Rule 424(b) of the rules and regulations under the Act within the
time period required thereby.
I-3
ANNEX II
Pursuant to Section 9(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
1. They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
2. In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) examined by them and included in the
Prospectus or the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act and the related
published rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim financial
statements, selected financial data, selected quarterly results of operations,
pro forma financial information and/or condensed financial statements derived
from audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have been
separately furnished to the Representatives and are attached hereto;
3. They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus as indicated in
their reports thereon, copies of which have been separately furnished to the
Representatives and are attached hereto and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (6)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations, nothing
came to their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the related
published rules and regulations.
4. The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus agrees with the
corresponding amounts (after restatements where applicable) in the audited
consolidated financial statements for such five fiscal years.
5. They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures
II-1
specified in such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of Items 301,
302, 402 and 503(d), respectively, of Regulation SK.
6. On the basis of limited procedures, not constituting an examination
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred to
below, a reading of the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books of the Company and
its subsidiaries since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(a) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus (including selected quarterly results of
operations) do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations thereunder, or (ii) any material modifications
should be made to the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus (including selected quarterly results
of operations), for them to be conformity with generally accepted
accounting principles;
(b) any other unaudited income statement data and balance
sheet items included in the Prospectus (including selected quarterly
results of operations) do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included in the Prospectus;
(c) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited condensed
financial statements referred to in clause (a) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in clause (b) were not determined on a basis substantially
consistent with the basis for the audited consolidated financial
statements included in the Prospectus;
(d) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations
II-2
thereunder or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements;
(e) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest financial
statements included in the Prospectus) or any increase in the combined
long-term debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or net assets or stockholders' equity
or other items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(f) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred to
in clause (e) there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of consolidated net
income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for decreases or increases which
the Prospectus discloses have occurred or may occur or which are
described in such letter.
7. In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (3) and (6)
above, they have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified by
the Representatives, which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus, or in Part II
of, or in exhibits and schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
II-3
ANNEX III
Matters to be Covered in the Opinions of Counsel to the Material Subsidiaries
1. The Material Subsidiary is a corporation duly incorporated, validly existing
and in good standing under the laws of [jurisdiction of organization].
2. All of the issued and outstanding shares of the capital stock of the Material
Subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable, and are owned of record by [Insert the Company or a wholly-owned
subsidiary of the Company], free and clear of all liens, encumbrances or claims
to the knowledge of such counsel (other than pledges existing pursuant to the
Company's Loan Agreement with Silicon Valley Bank). [Counsel being entitled to
rely in respect of matters of fact upon certificates of officers of the Company
or the Material Subsidiary]
III-1
ANNEX IV
Matters to be Covered in the Opinions of Counsel to the Selling Stockholders
1. To the knowledge of such counsel, Selling Stockholder has the legal capacity
to enter into the Underwriting Agreement and the Custody Agreement and to sell,
transfer and deliver the Shares to be sold by Selling Stockholder. [Individuals
only]
2. Selling Stockholder is a [corporation] [limited liability company] duly
[incorporated] [formed], validly existing and in good standing under the laws of
[jurisdiction of organization]. Selling Stockholder has full power and authority
to enter into the Underwriting Agreement and the Custody Agreement and to sell,
transfer and deliver the Shares to be sold by Selling Stockholder. [Corporations
and LLCs only]
3. The Underwriting Agreement has been duly authorized, executed and delivered
by Selling Stockholder through his/her/its duly authorized attorney-in-fact.
4. The Custody Agreement has been duly authorized, executed and delivered by
Selling Stockholder and, pursuant to such Custody Agreement, Selling Stockholder
has authorized its attorney-in-fact to carry out the transactions contemplated
in the Underwriting Agreement on its behalf and to deliver the Shares being sold
by Selling Stockholder pursuant to the Underwriting Agreement.
5. The performance by Selling Stockholder of his/her/its obligations under the
Underwriting Agreement and Custody Agreement does not and will not conflict
with, result in a breach of, or result in a default under, its [organizational
documents], any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument known to such counsel to which
Selling Stockholder is a party or by which Selling Stockholder or any of
his/her/its properties are bound or affected, or violate or conflict with (i)
any judgment, ruling, decree or order known to us or (ii) any [applicable
jurisdiction] statute, or rule or regulation of any [applicable jurisdiction]
court or governmental agency or body applicable to Selling Stockholder.
6. No consent, approval, authorization, order, registration or qualification of
or with any [applicable jurisdiction] court or governmental agency or body is
required to be obtained by Selling Stockholder to sell, assign, transfer and
deliver the Shares to be sold by Selling Stockholder in the manner provided in
the Underwriting Agreement and the Custody Agreement, other than as have been
obtained.
IV-1
