EXHIBIT 1.1
VIADOR INC.
4,000,000 Shares of Common Stock
UNDERWRITING AGREEMENT
September __, 1999
BEAR, XXXXXXX & CO. INC.
CIBC WORLD MARKETS CORP.
U.S. BANCORP XXXXX XXXXXXX INC.
EXHIBIT 1.1
4,000,000 Shares of Common Stock
VIADOR INC.
UNDERWRITING AGREEMENT
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September __, 1999
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Viador Inc., a corporation organized and existing under the laws of
Delaware (the "Company"), proposes, subject to the terms and conditions stated
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herein, to issue and sell to Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), CIBC
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World Markets Corp. and U.S. Bancorp Xxxxx Xxxxxxx Inc. (collectively, the
"Underwriters") an aggregate of 4,000,000 shares (the "Firm Shares") of its
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common stock, par value $0.001 per share (the "Common Stock") and, for the sole
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purpose of covering over-allotments in connection with the sale of the Firm
Shares, at the option of the Underwriters, up to an additional 600,000 shares
(the "Additional Shares") of Common Stock. The Firm Shares and any Additional
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Shares purchased by the Underwriters are referred to herein as the "Shares".
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The Shares are more fully described in the Registration Statement referred to
below.
1. Representations and Warranties of the Company. The Company represents
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and warrants to, and agrees with, each of the Underwriters that:
(i) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (No. 333-84041),
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and any amendments thereto, and related preliminary prospectuses for the
registration under the Securities Act of 1933 (the "Securities Act") of
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shares of common stock, which registration statement, as so amended, has
been declared effective by the Commission and copies of which have
heretofore been delivered to the Underwriters. Such registration statement
(and any registration statement increasing the size of the offering (a
"Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) under
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the Securities Act), in the respective forms in which they were declared
effective, as amended, including all exhibits thereto, are each
hereinafter referred to as the "Registration Statement". Other than a Rule
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462(b) Registration Statement, which became effective upon filing, no
other document with respect to the Registration Statement has heretofore
been filed with the Commission (other than prospectuses filed pursuant to
Rule 424(b) of the rules and regulations of the Commission under the
Securities Act (the "Securities Act Regulations"), each in the form
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heretofore delivered to the Underwriters). No stop order suspending the
effectiveness of either the Registration Statement 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. The Company, if required by the Securities Act Regulations,
proposes to file the Prospectus with the Commission pursuant to Rule
424(b) of the Securities Act Regulations. The Prospectus, in the form in
which it is to be filed with the Commission pursuant to Rule 424(b) of the
Securities Act Regulations, is hereinafter referred to as the
"Prospectus", except that if any revised prospectus or prospectus
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supplement shall be provided to the Underwriters by the Company for use in
connection with the offering and sale of the Shares (the "Offering") which
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differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company pursuant to
Rule 424(b) of the Securities Act Regulations), the term "Prospectus"
shall refer to such revised prospectus or prospectus supplement, as the
case may be, from and after the time it is first provided to the
Underwriters for such use; and, provided, further, that the term
"Prospectus" shall be deemed to include any wrapper or supplement thereto
prepared in connection with the distribution of any Reserved Shares (as
defined in Section 2(f), below). Any preliminary prospectus or prospectus
subject to completion included in the Registration Statement or filed with
the Commission pursuant to Rule 424 under the Securities Act is hereafter
called a "Preliminary Prospectus". All references in this Agreement to the
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Registration Statement, the Rule 462(b) Registration Statement, a
Preliminary Prospectus and the Prospectus, or any amendments or
supplements to any of the foregoing, shall be deemed to include any copy
thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX").
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(ii) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the Closing Date
referred to in Section 2 hereof, complied and comply in all material
respects with the requirements of the Securities Act and the Securities
Act Regulations, and did not and as of the Closing Date do 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
not misleading. The Prospectus, as of the date hereof (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of the
Shares which differs from the Prospectus filed with the Commission
pursuant to Rule 424(b) of the Securities Act Regulations, in which case
at the time it is first provided to the Underwriters for such use) and on
the Closing Date, does not and will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this Section 1(ii) shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by any Underwriter expressly for use
in the Registration Statement or the Prospectus. When the related
Preliminary Prospectus as described in Rule 430 of the Securities Act
Regulations contained in Amendment No. 2 to the Registration Statement
dated September __, 1999 or thereafter filed with the Commission (whether
filed as part of the Registration Statement for the registration of the
Shares or any amendment thereto or pursuant to Rule 424(a) of the
Securities Act Regulations) and when any amendment thereof or supplement
thereto was first filed with the Commission, such Preliminary Prospectus
and any amendments thereof or supplements thereto complied in all material
respects with the applicable provisions of the Securities Act and the
Securities Act Regulations and did not contain an untrue statement of a
material fact and did not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Each Preliminary Prospectus and Prospectus filed as part of the
Registration Statement, as part of any amendment thereto or pursuant to
Rule 424 under the Securities Act Regulations, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation
S-T under the Securities Act) was identical to the copy thereof delivered
to the Underwriters for use in connection with the offer and sales of the
Shares. There are no contracts or other documents required
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to be described in the Prospectus or to be filed as exhibits to the
Registration Statement under the Securities Act that have not been
described or filed therein as required, and there are no business
relationships or related-party transactions involving the Company or any
subsidiary or any other person required to be described in the Prospectus
that have not been described therein as required.
(iii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of California and
each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions (other than the State of
California) where the failure to so qualify or to be in good standing
would not, individually or in the aggregate, result in a material adverse
change, or any development that could reasonably be expected to result in
a material adverse change, in the condition, financial or otherwise, or in
the business, operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company (any such
change is called a "Material Adverse Change"). The Company does not own or
control, directly or indirectly, any corporation, association or other
entity.
(iv) All of the outstanding shares of capital stock of the Company
have been duly authorized, validly issued, and are fully paid and
nonassessable and were not issued in violation of any preemptive or
similar rights. The Shares, when issued, delivered and sold in accordance
with this Agreement, will be duly authorized and validly issued, fully
paid and nonassessable, and will not have been issued in violation of or
subject to any preemptive or similar rights. At June 30, 1999, after
giving effect to the issuance and sale of the Shares pursuant hereto and
the application of the net proceeds from the sale thereof, the Company had
the pro forma capitalization as set forth in the Prospectus under the
caption "Capitalization".
(v) The Company has no subsidiaries.
(vi) Except as disclosed in the Prospectus, there are not currently,
and will not be as a result of the Offering, any outstanding
subscriptions, rights, warrants, calls, commitments of sale or options to
acquire, or instruments convertible into or exchangeable for, any capital
stock or other equity interest of the Company.
(vii) The Common Stock (including the Shares) is registered pursuant
to Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange
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Act") and is listed for quotation on the Nasdaq National Market System
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("Nasdaq"), and the Company has taken no action designed to, or likely to
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have the effect of, terminating the registration of the Common Stock under
the Exchange Act or delisting the Common Stock from Nasdaq, nor has the
Company received any notification that the Commission or Nasdaq is
contemplating terminating such registration or listing.
(viii) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby, including, without
limitation, the corporate power and authority to issue, sell and deliver
the Shares as provided herein and the power to effect the Use of Proceeds
as described in the Prospectus.
(ix) This Agreement has been duly and validly authorized, executed
and delivered by the Company and is the legally valid and binding
agreement of the Company, enforceable against it in accordance with its
terms, except insofar as indemnification and contribution provisions may
be limited by applicable law or equitable principles and subject to
applicable bankruptcy, insolvency,
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fraudulent conveyance, reorganization or similar laws affecting the rights
of creditors generally and subject to general principles of equity
(regardless of whether the relevant proceeding is at law or in equity).
(x) The Company is not, nor, after giving effect to the offering of
the Shares, will it be (a) in violation of its charter or bylaws, (b) in
default in the performance of any bond, debenture, note, indenture,
mortgage, deed of trust or other agreement or instrument to which it is a
party or by which it is bound or to which any of its properties is
subject, or (c) in violation of any local, state or federal law, statute,
ordinance, rule, regulation, requirement, judgment or court decree
applicable to the Company or any of its assets or properties (whether
owned or leased) other than, in the case of clauses (b) and (c), any
default or violation that would not (1) individually or in the aggregate,
result in a material adverse effect on the properties, business, results
of operations, condition (financial or otherwise), affairs or prospects of
the Company, (2) interfere with or adversely affect the sale of the Shares
pursuant hereto or (3) in any manner draw into question the validity of
this Agreement (any of the events set forth in clauses (1), (2) or (3), a
"Material Adverse Effect"). The Company knows of no condition that, with
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notice, the passage of time or otherwise, would constitute a default under
any such document or instrument, except as disclosed in the Prospectus,
except for any such condition which would not reasonably be expected to
result in a Material Adverse Effect.
(xi) None of (a) the execution, delivery or performance by the
Company of this Agreement, (b) the issuance and sale of the Shares and (c)
consummation by the Company of the transactions contemplated hereby
violate, conflict with or constitute a breach of any of the terms or
provisions of, or a default under (or an event that with notice or the
lapse of time, or both, would constitute a default), or require consent
which has not been obtained under, or result in the imposition of a lien
on any properties of the Company, or an acceleration of any indebtedness
of the Company pursuant to, (1) the charter or bylaws of the Company, (2)
any bond, debenture, note, indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which the
Company or its properties is or may be bound, (3) any statute, rule or
regulation applicable to the Company or any of its or properties or (4)
any judgment, order or decree of any court or governmental agency or
authority having jurisdiction over the Company or any of its assets or
properties, except in the case of clauses (2), (3) and (4) for such
violations, conflicts, breaches, defaults, consents, impositions of liens
or accelerations that (x) would not singly, or in the aggregate, have a
Material Adverse Effect or (y) which are disclosed in the Prospectus.
Other than as described in the Prospectus, no consent, approval,
authorization or order of, or filing, registration, qualification, license
or permit of or with, (A) any court or governmental agency, body or
administrative agency or (B) any other person is required for (1) the
execution, delivery and performance by the Company of this Agreement, (2)
the issuance and sale of the Shares and the transactions contemplated
hereby, except (x) such as have been obtained and made under the
Securities Act, the Exchange Act and state securities or Blue Sky laws and
regulations or such as may be required by the NASD or (y) where the
failure to obtain any such consent, approval, authorization or order of,
or filing registration, qualification, license or permit would not
reasonably be expected to result in a Material Adverse Effect.
(xii) Except as set forth in the Prospectus, there are no legal or
governmental actions, suits or proceedings pending or, to Company's
knowledge, threatened (a) against or affecting the Company, (b) which has
as the subject thereof any officer or director (in any such capacity) of,
or property owned or leased by, the Company or (c) relating to
discrimination matters, where in any such case (1) there is a reasonable
possibility that such action, suit or proceeding might be determined
adversely to the Company and (2) any such action, suit or proceeding, if
so determined adversely, would reasonably be expected to result in a
Material Adverse Change or adversely affect the
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consummation of the transactions contemplated by this Agreement. No
material labor dispute with the employees of the Company exists or, to the
Company's knowledge, is threatened or imminent.
(xiii) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency that
prevents the issuance of the Shares or prevents or suspends the use of the
Prospectus; no injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been issued that
prevents the issuance of the Shares, prevents or suspends the sale of the
Shares in any jurisdiction referred to in Section 4(d) hereof or that
would adversely affect the consummation of the transactions contemplated
by this Agreement or the Prospectus; and every request of any securities
authority or agency of any jurisdiction for additional information has
been complied with in all material respects.
(xiv) Except as would not, individually or in the aggregate, result
in a Material Adverse Change, (a) to the Company's knowledge, the Company
is not in violation of any federal, state, local or foreign law or
regulation relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including
without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
and petroleum products (collectively, "Materials of Environmental
Concern"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, "Environmental Laws"),
which violation includes, but is not limited to, noncompliance with any
permits or other governmental authorizations required for the operation of
the business of the Company under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company
received any written communication, whether from a governmental authority,
citizens group, employee or otherwise, that alleges that the Company is in
violation of any Environmental Law; (b) there is no claim, action or cause
of action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no
written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, attorneys' fees or
penalties arising out of, based on or resulting from the presence, or
release into the environment, of any Material of Environmental Concern at
any location owned, leased or operated by the Company, now or in the past
(collectively, "Environmental Claims"), pending or, to Company's
knowledge, threatened against the Company or any person or entity whose
liability for any Environmental Claim the Company has retained or assumed
either contractually or by operation of law; and (c) to the Company's
knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal of any
Material of Environmental Concern, that would result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim
against the Company or against any person or entity whose liability for
any Environmental Claim the Company has retained or assumed either
contractually or by operation of law.
(xv) The Company has (a) good and marketable title to all of the
properties and assets described in the Prospectus or the financial
statements included in the Prospectus as owned by it, free and clear of all
liens, charges, encumbrances and restrictions, except such as are described
in the Prospectus or as would not have a Material Adverse Effect, (b)
peaceful and undisturbed possession to the extent described in the
Prospectus under all material leases to which it is a party as lessee, (c)
all licenses, certificates, permits, authorizations, approvals, franchises
and other rights from, and has made all declarations and filings with, all
federal, state and local authorities, all self-regulatory authorities and
all courts and other tribunals (each an "Authorization") necessary to
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engage in the business conducted by the Company in the manner described in
the Prospectus, except as described in
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the Prospectus and except insofar as the failure to obtain any such
Authorization would not have a Material Adverse Effect, and no such
Authorization contains a materially burdensome restriction that is not
disclosed in the Prospectus and (d) not received any notice that any
governmental body or agency is considering limiting, suspending or revoking
any such Authorization. Except where the failure to be in full force and
effect would not have a Material Adverse Effect, all such Authorizations
are valid and in full force and effect and the Company is in compliance in
all material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect thereto. All material leases
to which the Company is a party are valid and binding and no default by the
Company has occurred and is continuing thereunder and, to the Company's
knowledge, no material defaults by the landlord are existing under any such
lease that would result in a Material Adverse Effect.
(xvi) Except as described in the Prospectus, the Company owns,
possesses or has the right to employ sufficient patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, software, systems or procedures), trademarks, service marks
and trade names, inventions, computer programs, technical data and
information (collectively, the "Intellectual Property Rights") reasonably
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necessary to conduct its business as now conducted; and the expected
expiration of any of such Intellectual Property Rights would not result in
a Material Adverse Change. The Intellectual Property Rights presently
employed by the Company in connection with the business now operated by it
or which are proposed to be operated by it are owned, to the Company's
knowledge, free and clear of and without violating any right, claimed
right, charge, encumbrance, pledge, security interest, restriction or lien
of any kind of any other person and the Company has not received any notice
of infringement of or conflict with asserted rights of others with respect
to any of the foregoing except as would not reasonably be expected to have
a Material Adverse Effect. To the Company's knowledge, the use of the
Intellectual Property in connection with the business and operations of the
Company does not infringe on the rights of any person, except as would not
have a Material Adverse Effect.
(xvii) None of the Company, or to the knowledge of the Company, any
of its officers, directors, partners, employees, agents or affiliates or
any other person acting on behalf of the Company has, directly or
indirectly, given or agreed to give any money, gift or similar benefit
(other than legal price concessions to customers in the ordinary course of
business) to any customer, supplier, employee or agent of a customer or
supplier, official or employee of any governmental agency (domestic or
foreign), instrumentality of any government (domestic or foreign) or any
political party or candidate for office (domestic or foreign) or other
person who was, is or may be in a position to help or hinder the business
of the Company (or assist the Company in connection with any actual or
proposed transaction) that (a) would subject the Company, or any other
individual or entity to any damage or penalty in any civil, criminal or
governmental litigation or proceeding (domestic or foreign), (b) if not
given in the past, would have had a Material Adverse Effect or (c) if not
continued in the future, would have a Material Adverse Effect.
(xviii) All material tax returns required to be filed by the Company
in all jurisdictions have been so filed. All material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities or that are due and
payable have been paid, other than those being contested in good faith and
for which adequate reserves have been provided or those currently payable
without penalty or interest. To the knowledge of the Company, there are no
material proposed additional tax assessments against the Company or the
assets or property of the Company. The Company has made adequate charges,
accruals and reserves in the applicable financial statements included in
the Prospectus in respect of all federal, state and foreign income and
franchise taxes for all periods as to which the tax liability of the
Company has not been finally determined.
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(xix) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act").
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(xx) Except as disclosed in the Prospectus, there are no holders of
securities of the Company who, by reason of the execution by the Company of
this Agreement to which it is a party or the consummation by the Company of
the transactions contemplated hereby, have the right to request or demand
that the Company register under the Securities Act or analogous foreign
laws and regulations securities held by them, other than such that have
been duly waived.
(xxi) Except as otherwise disclosed in the Prospectus, the Company
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that: (a) transactions are executed in accordance with
management's general or specific authorizations; (b) transactions are
recorded as necessary to permit preparation of financial statements in
conformity in all material respects with generally accepted accounting
principles and to maintain accountability for assets; and (c) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxii) The Company is insured by recognized, financially sound
institutions with policies in such amounts and with such deductibles and
covering such risks as are customary for similarly situated businesses
including, but not limited to, policies covering real and personal property
owned or leased by the Company against theft, damage, destruction and acts
of vandalism. The Company has no reason to believe that it will not be able
(a) to renew its existing insurance coverage as and when such policies
expire or (b) to obtain comparable coverage from similar institutions as
may be necessary or appropriate to conduct its business as now conducted
and at a cost that would not result in a Material Adverse Change.
(xxiii) The Company has not (a) taken, directly or indirectly, any
action designed to, or that 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 or (b) since the
date of the Preliminary Prospectus (1) sold, bid for, purchased or paid any
person any compensation for soliciting purchases of, the Shares or (2) paid
or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(xxiv) The Company and any "employee benefit plan" (as defined under
the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively,
"ERISA")) established or maintained by the Company or its "ERISA
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Affiliates" (as defined below) are in compliance in all material respects
with ERISA. "ERISA Affiliate" means, with respect to the Company, any
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member of any group of organizations described in Sections 414(b), (c), (m)
or (o) of the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the "Code") of which
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the Company is a member. No "reportable event" (as defined under ERISA) has
occurred with respect to any "employee benefit plan" established or
maintained by the Company or any of its ERISA Affiliates. No "employee
benefit plan" established or maintained by the Company or any of its ERISA
Affiliates, if such "employee benefit plan" were terminated, would have any
"amount of unfunded benefit liabilities" (as defined under ERISA). Neither
the Company nor any of its ERISA Affiliates has incurred any liability
under (a) Title IV of ERISA with respect to termination of, or withdrawal
from, any "employee benefit plan" or (b) Sections 412, 4971, 4975 or 4980B
of the Code. Each "employee benefit plan" established or maintained by the
Company or any of its ERISA Affiliates that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or failure to act, that would cause the loss of such
qualification.
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(xxv) Except as otherwise disclosed in the Prospectus, subsequent
to the respective dates as of which information is given in the Prospectus:
(a) there has been no Material Adverse Change; (b) the Company has not
incurred any material liability or obligation, indirect, direct or
contingent, not in the ordinary course of business nor entered into any
material transaction or agreement not in the ordinary course of business;
(c) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of capital stock or repurchase or
redemption by the Company of any class of capital stock; (d) there has been
no capital expenditure or commitment by the Company exceeding $200,000,
either individually or in the aggregate except in the ordinary course of
business as generally contemplated by the Prospectus; (e) there has been no
change in accounting methods or practices (including any change in
depreciation or amortization policies or rates) by the Company; (f) there
has been no revaluation by the Company of any of its assets; (g) there has
been no increase in the salary or other compensation payable or to become
payable by the Company to any of its officers, directors, employees or
advisors, nor any declaration, payment or commitment or obligation of any
kind for the payment by the Company of a bonus or other additional salary
or compensation to any such person; (h) there has been no amendment or
termination of any material contract, agreement or license to which the
Company is a party or by which it is bound; (i) there has been no waiver or
release of any material right or claim of the Company, including any write-
off or other compromise of any material account receivable of the Company;
and (j) there has been no material change in pricing or royalties set or
charged by the Company to its customers or licensees or in pricing or
royalties set or charged by persons who have licensed Intellectual Property
Rights to the Company.
(xxvi) KPMG LLP, who have expressed their opinion with respect to
the financial statements (which term as used in this Agreement includes the
related notes thereto) and supporting schedules included in the Prospectus
are independent public or certified public accountants within the meaning
of Regulation S-X under the Securities Act and the Exchange Act.
(xxvii) The financial statements, together with the related notes,
included in the Prospectus present fairly in all material respects the
consolidated financial position of the Company as of and at the dates
indicated and the results of its operations and cash flows for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as may be expressly stated in the
related notes thereto. The financial data set forth in the Prospectus under
the captions "Prospectus Summary--Summary Financial Data", "Selected
Financial Data" and "Capitalization" fairly present the information set
forth therein on a basis consistent with that of the audited financial
statements contained in the Prospectus.
(xxviii) Except pursuant to this Agreement, there are no contracts,
agreements or understandings between the Company and any other person that
would give rise to a valid claim against the Company or any of the
Underwriters for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Shares.
(xxix) The statements (including the assumptions described therein)
included in the Prospectus (a) are within the coverage of Rule 175(b) under
the Securities Act to the extent such data constitute forward looking
statements as defined in Rule 175(c) and (b) were made by the Company with
a reasonable basis and reflect the Company's good faith estimate of the
matters described therein.
(xxx) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters pursuant to
this Agreement shall be deemed to be a representation and warranty by the
Company to the Underwriters as to the matters covered thereby.
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(xxxi) The Company has reviewed its operations and any third parties
with which the Company has a material relationship to evaluate the extent
to which the business or operations of the Company will be affected by
Year 2000 issues. As a result of such review, the Company represents and
warrants that the disclosure in the Registration Statement relating to
Year 2000 issues is accurate and complies in all material respects with
the rules and regulations under the Securities Act. "Year 2000 issues" as
used herein means Year 2000 Issues described in or contemplated by the
Commission's Interpretation: Disclosure of the Year 2000 Issues and
Consequences by Public Companies, Investment Advisers, Investment
Companies, and Municipal Securities Issuers (Release No. 33-7558).
The Company acknowledges that each of the Underwriters and, for
purposes of the opinions to be delivered to the Underwriters pursuant to Section
8 hereof, counsel to the Company and counsel to the Underwriters, will rely upon
the accuracy and truth of the foregoing representations and hereby consents to
such reliance.
2. Purchase, Sale and Delivery of the Shares.
------------------------------------------
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $[__], the number of Firm Shares set forth opposite the
respective names of the Underwriters in Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for the Firm Shares shall be made at the office of Xxxxxx &
Xxxxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx, or at
such other place as shall be agreed upon by the Underwriters and the Company, at
7:00 A.M., San Francisco time, on [__], 1999 (unless postponed in accordance
with the provisions of Section 9 hereof) after the determination of the public
offering price of the Firm Shares, or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriters and
the Company (such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Company by wire transfer in same
------------
day funds, against delivery to the Underwriters of certificates for the Shares
to be purchased by them. Certificates for the Firm Shares shall be registered in
such name or names and in such authorized denominations as the Underwriters may
request in writing at least two full business days prior to the Closing Date.
The Company will permit the Underwriters to examine and package such
certificates for delivery at least one full business day prior to the Closing
Date.
(c) In addition, the Company hereby grants to the Underwriters
the option to purchase up to 600,000 Additional Shares at the same purchase
price per share to be paid by the Underwriters to the Company for the Firm
Shares as set forth in this Section 2, for the sole purpose of covering over-
allotments in the sale of Firm Shares by the Underwriters. This option may be
exercised at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by the Underwriters to
the Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised and the date and time, as
reasonably determined by the Underwriters, when the Additional Shares are to be
delivered (such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however,that the Additional Closing Date
-----------------------
shall not be earlier than the Closing Date nor earlier than the second full
business day after the date on which the option shall have been exercised nor
later than the eighth full business day after the date on which the option shall
have been exercised (unless such time and date are postponed in accordance with
the provisions of Section 9 hereof). Certificates for the Additional Shares
shall be registered in such name or names and in such authorized denominations
as the Underwriters may request in writing at least two full business days prior
to the
9
Additional Closing Date. The Company will permit the Underwriters to examine and
package such certificates for delivery at least one full business day prior to
the Additional Closing Date.
(d) The number of Additional Shares to be sold to each
Underwriter shall be the number that bears the same ratio to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 9 hereof) bears to the total number of Firm
Shares being purchased from the Company, subject, however, to such adjustments
to eliminate any fractional shares as the Underwriters in their sole discretion
shall make.
(e) Payment for the Additional Shares shall be made by wire
transfer in same day funds each payable to the order of the Company at the
office of Xxxxxx & Xxxxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx, or such other location as may be mutually acceptable, against
delivery of the certificates for the Additional Shares to the Underwriters.
(f) The Company and the Underwriters agree that up to [__] of the
Firm Shares to be purchased by the Underwriters (the "Reserved Shares") shall be
---------------
reserved for sale by the Underwriters to certain individuals and entities having
business relationships with the Company, as part of the distribution of the
Shares by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the National Association of
Securities Dealers, Inc. (the "NASD") and all other applicable laws, rules and
----
regulations. To the extent that such Reserved Shares are not orally confirmed
for purchase by such individuals and entities having business relationships with
the Company by the end of the first business day after the date of this
Agreement, such Reserved Shares may be offered to the public as part of the
public offering contemplated hereby.
3. Offering. Upon the Underwriters' authorization of the release of
--------
the Firm Shares, the Underwriters propose to offer the Shares for sale to the
public upon the terms set forth in the Prospectus.
4. Covenants of the Company. The Company covenants and agrees with
------------------------
each of the-Underwriters that:
(a) The Company will notify the Underwriters immediately (and, if
requested by the Underwriters, will confirm such notice in writing) (i)
when any post-effective amendment to the Registration Statement becomes
effective, (ii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any
additional information, (iii) of the mailing or the delivery to the
Commission for filing of the Prospectus or any amendment of or supplement
to the Registration Statement or the Prospectus or any document to be filed
pursuant to the Exchange Act during any period when the Prospectus is
required to be delivered under the Securities Act, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of either
Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, (v) of the
receipt of any comments or inquiries from the Commission, and (vi) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for that purpose. If the
Commission shall propose or enter a stop order at any time, the Company
will make every reasonable effort to prevent the issuance of any such stop
order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not file any post-effective amendment to the
Registration Statement or any amendment of or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Shares which differs
from the prospectus filed with the Commission pursuant to Rule 424(b) of
the Securities Act Regulations, whether or not such revised
10
prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act
Regulations) to which the Underwriters or Underwriters' Counsel (as hereinafter
defined) shall reasonably object, will furnish the Underwriters with copies of
any such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such amendment
or supplement or use any such prospectus to which the Underwriters or counsel
for the Underwriters shall reasonably object.
(b) If any event shall occur as a result of which the Prospectus
would, in the judgment of the Underwriters or the Company include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend or supplement the Prospectus or either
Registration Statement to comply with the Securities Act or the Securities Act
Regulations, the Company will notify the Underwriters promptly and prepare and
file with the Commission an appropriate amendment or supplement (in form and
substance satisfactory to the Underwriters) which will correct such statement or
omission or which will effect such compliance.
(c) The Company has delivered to the Underwriters signed copies
of the Registration Statement as originally filed, including exhibits, and all
amendments thereto, and the Company will promptly deliver to each of the
Underwriters, from time to time during the period that the Prospectus is
required to be delivered under the Securities Act, such number of copies of the
Prospectus and the Registration Statement, and all amendments of and supplements
to such documents, if any, as the Underwriters may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with
the Underwriters, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of such
jurisdictions as the Underwriters may designate and to maintain such
qualification in effect for so long as required for the distribution thereof;
except that in no event shall the Company be obligated in connection therewith
to qualify as a foreign corporation or to execute a general consent to service
of process.
(e) The Company will make generally available (within the meaning
of Section 11(a) of the Securities Act) to its security holders and to the
Underwriters as soon as practicable, but not later than 45 days after the end of
its fiscal quarter in which the first anniversary date of the effective date of
the Registration Statement occurs (or if such fiscal quarter is the Company's
fourth fiscal quarter, not later than 90 days after the end of such quarter), an
earnings statement (in form complying with the provisions of Rule 158 of the
Regulations) covering a period of at least twelve consecutive months beginning
after the effective date of the Registration Statement (as defined in Rule
158(c) under the Securities Act).
(f) During the period of 180 days from the date of the
Prospectus, the Company will not, directly or indirectly, without the prior
written consent of Bear Xxxxxxx, offer, sell, contract to sell, grant any option
to purchase, pledge or otherwise dispose (or announce any offer, sale, contract
to sell, grant of an option to purchase, pledge or other disposition) of any
shares of Common Stock of the Company or any securities convertible into or
exercisable or exchangeable for such Common Stock, except that the Company may
issue (i) shares of Common Stock and options to purchase Common Stock under its
1999 Stock Incentive Plan (as such term is defined in the Prospectus), (ii)
shares of Common Stock upon exercise of warrants to purchase Common Stock that
were issued and outstanding on the date of the Prospectus or (iii) up to XXXXXX
shares of Common Stock in connection with acquisitions of businesses,
technologies or products complementary to those of
11
the Company existing on the date of the Prospectus; provided, however, that
the recipients of such shares agree to execute and be bound by the lock-up
agreement executed by the directors and officers of the Company for the
remainder of the 180-day lock-up period.
(g) During a period of three years from the date of the
Prospectus, the Company will furnish to the Underwriters copies of (i) all
reports to its stockholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission on
a non-confidential basis or any national securities exchange.
(h) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) If the Company elects to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, 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 the Underwriters' reasonable satisfaction.
(j) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, will
file all documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15 of the Exchange Act within the time periods required
by the Exchange Act and the rules and regulations thereunder.
Bear Xxxxxxx, on behalf of the several Underwriters, may, in its sole
discretion, waive in writing the performance by the Company of any one or more
of the foregoing covenants or extend the time for their performance; provided,
however, that any such waiver or extension shall be effective only in the
specific instance and for the specific purpose for which given, and shall not
affect in any manner future compliance with or timely performance of such
covenants by the Company.
5. Payment of Expenses. Whether or not the transactions contemplated
-------------------
in this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereto (including all
exhibits thereto), any Preliminary Prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), the underwriting documents (including this
Agreement, the Agreement Among Underwriters and the Selling Agreement) and all
other documents related to the public offering of the Shares (including those
supplied to the Underwriters in quantities as hereinabove stated), (ii) the
issuance, transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the qualification of the Shares
under state or foreign securities or Blue Sky laws, including the costs of
printing and mailing a preliminary and final "Blue Sky Memorandum" and the fees
of counsel in connection therewith and such counsel's disbursements in relation
thereto, (iv) listing of the Shares for quotation on the Nasdaq, (v) filing fees
of the Commission and the NASD, (vi) the cost of printing certificates
representing the Shares, (vii) the cost and charges of any transfer agent or
registrar and (viii) all costs and expenses of the Underwriters, including the
fees and disbursements of counsel for the Underwriters, in connection with
matters related to the Reserved Shares.
6. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the absence from any certificates,
opinions, written statements or letters furnished to the Underwriters or to
12
Xxxxxx & Xxxxxxx ("Underwriters' Counsel") pursuant to this Section 6 of any
---------------------
material misstatement or omission, to the performance by the Company of its
obligations hereunder to be performed prior to the Closing Date (for purposes of
this Section 6, "Closing Date" shall refer to the Closing Date for the Firm
------------
Shares and any Additional Closing Date, if different, for the Additional
Shares), and to the following additional conditions:
(a) On the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Securities Act or proceedings therefor initiated or, to the Company's
knowledge, threatened by the Commission. The Prospectus shall have been
filed or transmitted for filing with the Commission pursuant to Rule 424(b)
of the Securities Act Regulations within the prescribed time period, and
prior to Closing Date the Company shall have provided evidence satisfactory
to the Underwriters of such timely filing or transmittal.
(b) Each of the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material
respects on the date hereof and on the Closing Date with the same force and
effect as if made on and as of the date hereof and the Closing Date,
respectively, provided, that any representation or warranty contained
herein that is qualified by a materiality standard shall not be further
qualified hereby. The Company shall have performed or complied in all
material respects with all of the agreements herein contained and required
to be performed or complied with by it at or prior to the Closing Date.
(c) The Prospectus shall have been printed and copies distributed
to the Underwriters not later than 10:00 a.m., New York City time, on the
second business day following the date of this Agreement or at such later
date and time as to which the Underwriters may agree, and no stop order
suspending the qualification or exemption from qualification of the Shares
in any jurisdiction referred to in Section 4(d) shall have been issued and
no proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(d) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, prevent the
issuance of the Shares; no action, suit or proceeding shall have been
commenced and be pending against or affecting or, to the best knowledge of
the Company, threatened against, the Company before any court or arbitrator
or any governmental body, agency or official that (1) could reasonably be
expected to result in a Material Adverse Effect and (2) has not been
disclosed in the Prospectus.
(e) Since the respective dates as of which information is given
in the Prospectus, (i) there shall not have been any Material Adverse
Change, or any development that is reasonably likely to result in a
Material Adverse Change, in the capital stock or the long-term debt, or
material increase in the short-term debt, of the Company from that set
forth in the Prospectus, (ii) no dividend or distribution of any kind shall
have been declared, paid or made by the Company on any class of its capital
stock, other than as described in the Prospectus, (iii) the Company shall
not have incurred any liabilities or obligations, direct or contingent,
that are material, individually or in the aggregate, to the Company, and
that are required to be disclosed on the latest balance sheet or notes
thereto included in the Prospectus in accordance with generally accepted
accounting principles and are not so disclosed. Since the date hereof and
since the dates as of which information is given in the Prospectus, there
shall not have occurred any Material Adverse Effect.
(f) The Underwriters shall have received a certificate, dated the
Closing Date, signed on behalf of the Company by each of the Company's
Chief Executive Officer and Chief Financial Officer in form and substance
reasonably satisfactory to the Underwriters, confirming, as of the Closing
Date, the matters set forth in paragraphs (a), (b), (d) and (e) of this
Section 6 and that, as of
13
the Closing Date, the obligations of the Company to be performed hereunder
on or prior thereto have been duly performed in all material respects.
(g) The Underwriters shall have received on the Closing Date an
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters, of Xxxxxxx, Phleger &
Xxxxxxxx LLP, counsel for the Company, to the effect set forth in Exhibit A
---------
hereto.
(h) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and to Underwriters'
Counsel, and the Underwriters shall have received from Underwriters'
Counsel a favorable opinion, dated as of the Closing Date in customary form
with respect to the issuance and sale of the Shares, the Registration
Statement and the Prospectus and such other related matters as the
Underwriters may reasonably require, and the Company shall have furnished
to Underwriters' Counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(i) At the time this Agreement is executed and at the Closing
Date, the Underwriters shall have received a letter from KPMG LLP,
independent public accountants for the Company, dated, respectively, as of
the date of this Agreement and as of the Closing Date addressed to the
Underwriters and in form and substance reasonably satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in auditors' "comfort letters" to underwriters with respect to
financial statements and certain information of the Company contained or
incorporated by reference (if any) in the Registration Statement and the
Prospectus.
(j) At the time this Agreement is executed, the Underwriters
shall have received a "lock-up" agreement, substantially in the form
attached as Exhibit B hereto, from each of the officers, directors and
---------
stockholders of the Company identified on Exhibit C hereto.
---------
(k) At the Closing Date, the Shares shall have been approved for
quotation on the Nasdaq.
(l) At the time this Agreement is executed and at the Closing
Time, the NASD shall not have withdrawn, or given notice of an intention to
withdraw, its approval of the fairness of the underwriting terms and
arrangements of the offering of the Shares by the Underwriters.
(m) All opinions, certificates, letters and other documents
required by this Section 6 to be delivered by the Company will be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Underwriters. The Company will
furnish the Underwriters with such conformed copies of such opinions,
certificates, letters and other documents as Bear Xxxxxxx shall reasonably
request. Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to the Underwriters or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to the Underwriters and
to Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by the Underwriters at, or at any time prior to, the Closing Date and
the obligations of the Underwriters to purchase the Additional Shares may be
canceled by
14
the Underwriters at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Company in writing, or by
telephone, telex or telegraph, confirmed in writing.
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act
against any and all losses, liabilities, claims, damages and expenses whatsoever
as incurred (including but not limited to attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
either Registration Statement, as originally filed or any amendment thereof, or
any related Preliminary Prospectus or the Prospectus, or in any supplement
thereto or amendment thereof, 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
will not be liable in any such case to the extent but only to the extent that
any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
expressly for use therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in either Registration Statement, as originally filed or any amendment
thereof, or any related preliminary prospectus, preliminary prospectus
supplement or prospectus, or in any amendment thereof 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 any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
expressly for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including under this Agreement.
(c) Promptly after receipt by an indemnified party under
Subsection (a) or (b) 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 each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an
15
indemnifying party shall not relieve the indemnifying party from any liability
which it may have under this Section 7, except to the extent that the
indemnifying party has been prejudiced in any material respect by such failure
or from any liability that it may have otherwise). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties;
provided, that the indemnifying party shall only be obligated to pay the fees
and expenses of one national counsel (plus one local counsel, if and as needed)
for the benefit of the indemnified party or parties. Anything in this Subsection
to the contrary notwithstanding, an indemnifying party shall not be liable for
any settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in
------------
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company) as incurred to which the Company and one
or more of the Underwriters may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Company and the
Underwriters from the offering of the Shares or, if such allocation is not
permitted by applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in Section 7
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand shall be deemed to be in
the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and (y) the underwriting discounts and commissions received by
the Underwriters, respectively, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and the
Underwriters 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 the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 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.
16
Notwithstanding the provisions of this Section 8, (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder, and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 8 and the
preceding sentence, 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
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of
this Section 8. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties, notify each party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
provided, however, that such consent was not unreasonably withheld.
9. Default by an Underwriter.
-------------------------
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default relates
do not (after giving effect to arrangements, if any, made by the Underwriters
pursuant to Subsection (b) below) exceed in the aggregate 10% of the number of
Firm Shares or Additional Shares, the Firm Shares or Additional Shares that such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
shall be purchased by the non-defaulting Underwriters in proportion to the
respective proportions that the numbers of Firm Shares set forth opposite their
respective names in Schedule I hereto bear to the aggregate number of Firm
Shares set forth opposite the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, the Underwriters may
in their discretion arrange for themselves or for another party or parties
(including any non-defaulting Underwriter or Underwriters who so agree) to
purchase such Firm Shares or Additional Shares, as the case may be, to which
such default relates on the terms contained herein. In the event that within 5
calendar days after such a default the Underwriters do not arrange for the
purchase of the Firm Shares or Additional Shares, as the case may be, to which
such default relates as provided in this Section 9, this Agreement, or in the
case of a default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and of the Company to sell the Additional Shares, shall
thereupon terminate, without liability on the part of the Company with respect
thereto (except in each case as provided in Section 5, 7(a) and 8 hereof) or the
Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
the Underwriters or the Company shall have the right to postpone the Closing
Date or Additional Closing Date, as the case may be for a period, not exceeding
five business days, in order to effect
17
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus or in any other documents and arrangements, and the Company
agrees to file promptly any amendment or supplement to either the Registration
Statement or the Prospectus which, in the opinion of Underwriters' Counsel, may
thereby be made necessary or advisable. The term "Underwriter" as used in this
Agreement shall include any party substituted under this Section 9 with like
effect as if it had originally been a party to this Agreement with respect to
such Firm Shares or Additional Shares, as the case may be.
10. Survival of Representations and Agreements. All
------------------------------------------
representations and warranties, covenants and agreements of the Underwriters and
the Company contained in this Agreement, including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof or by or on behalf of the Company, any of its
officers and directors, or any controlling person of the Company, and shall
survive delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8, 10, 11(d) and 12 hereof shall survive the termination of this
Agreement, including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
----------------------------------------
(a) This Agreement shall become effective upon the later of
(i) such time as the Underwriters and the Company shall have received
notification of the effectiveness of the Registration Statement, and (ii) the
execution of this Agreement; provided, however, that if either the initial
public offering or the purchase price per Share has not been agreed upon prior
to 5:00 p.m., New York City time, on the fifth full business day after the
Registration Statement shall have been declared effective, this Agreement shall
thereupon terminate without liability to the Company or the Underwriters except
as herein expressly provided. Until this Agreement becomes effective as
aforesaid, it may be terminated by the Company by notifying you or by you by
notifying the Company. Notwithstanding the foregoing, the provisions of this
Section 11 and of Sections 1, 5, 7, 8, 10 and 12 hereof shall at all times be in
full force and effect.
(b) The Underwriters shall have the right to terminate this
Agreement at any time prior to the Closing Date or the obligations of the
Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if on or prior to such date, (i)
the Company shall have failed, refused or been unable to perform in any material
respect any agreement on its part to be performed hereunder, (ii) any other
condition to the obligations of the Underwriters hereunder as provided in
Section 6 is not fulfilled when and as required in any material respect, (iii)
in the reasonable judgment of the Underwriters any Material Adverse Change shall
have occurred since the respective dates as of which information is given in the
Prospectus, other than as set forth in the Prospectus, or (iv)(A) any domestic
or international event or act or occurrence has materially disrupted, or in the
opinion of the Underwriters will in the immediate future materially disrupt, the
market for the Company's securities or for securities in general; or (B) trading
in securities generally on the New York Stock Exchange ("NYSE") or quotations--
----
on the Nasdaq shall have been suspended or materially limited, or minimum or
maximum prices for trading shall have been established, or maximum ranges for
prices for securities shall have been required, on such exchange, or by such
exchange or other regulatory body or governmental authority having jurisdiction;
or (C) a banking moratorium shall have been declared by federal or state
authorities, or any new restriction materially adversely affecting the
distribution of the Firm Shares or the Additional Shares, as the case may be,
shall have become effective; or (D) there is an outbreak or escalation of armed
hostilities involving the United States on or after the date hereof, or if there
has been a declaration by the United States of a national emergency or war, the
effect of which shall be, in the Underwriters' judgment, to make it inadvisable
or impracticable to proceed with the offering, sale and delivery of the Firm
Shares or the Additional Shares, as the case may be, on the terms and in the
manner contemplated by the Prospectus; or (E) there shall have been such a
material adverse change in general economic, political or financial conditions
or if the effect of international conditions on the
18
financial markets in the United States shall be such as, in the Underwriters'
judgment, makes it inadvisable or impracticable to proceed with the offering,
sale and delivery of the Firm Shares or the Additional Shares, as the case may
be, on the terms and in the manner contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall
be by telephone, telex, telegraph or telephonic facsimile, confirmed in writing
by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than pursuant to (i) notification by the Underwriters
as provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by the Underwriters, reimburse the Underwriters
for all out-of-pocket expenses (including the fees and expenses of their
counsel), incurred by the Underwriters in connection herewith.
12. Underwriters' Information. The Company and the Underwriters
-------------------------
severally acknowledge that the statements set forth in (i) the last paragraph of
the outside front cover of the Prospectus concerning the delivery of the shares
of Common Stock to the Underwriters and the offering of such shares by the
Underwriters; (ii) the paragraph on the inside front cover of the Prospectus
concerning transactions that stabilize, maintain, or otherwise affect the price
of the Common Stock; (iii) the third paragraph under the caption "Underwriting"
in the Prospectus concerning the proposed public offering price, discount and
concession; and (iv) the eighth paragraph under the caption "Underwriting" in
the Prospectus concerning transactions that stabilize, maintain, or otherwise
affect the price of the Common Stock, constitute the only information furnished
in writing by or on behalf of any Underwriter expressly for use in the
Registration Statement, as originally filed or in any amendment thereof, any
related Preliminary Prospectus or preliminary prospectus supplement or the
Prospectus or in any amendment thereof or supplement thereto, as the case may
be.
13. Notices. All communications hereunder, except as may be otherwise
-------
specifically provided herein, shall be in writing and, if sent to the
Underwriters shall be mailed, delivered, or telexed, telegraphed or telecopied
and confirmed in writing to Bear, Xxxxxxx & Co. Inc., CIBC World Markets Corp.
and U.S. Bancorp Xxxxx Xxxxxxx Inc., c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department,
telecopy number: (000) 000-0000, with a copy, which shall not constitute notice,
to Xxxxxx & Xxxxxxx, Attn: Xxxxxxx X. Xxxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; telecopy number: (000) 000-0000; and if sent to
the Company, shall be mailed, delivered or telexed, telegraphed or telecopied
and confirmed in writing to Viador Inc., 000 Xxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: Chief Executive Officer, telecopy number:
(000) 000-0000, with a copy, which shall not constitute notice, to Xxxxxxx,
Phleger & Xxxxxxxx LLP, Attn: Xxxxxx X. Mo, telecopy number: (000) 000-0000.
14. Parties. This Agreement shall inure solely to the benefit of, and
-------
shall be binding upon, the Underwriters, the Company and the controlling
persons, directors, officers, employees and agents referred to in Section 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from any of the Underwriters.
15. GOVERNING LAW; Construction. This Agreement shall be construed in
---------------------------
accordance with the internal laws of the State of New York applicable to
agreements made and to be
19
performed within such State, without giving any effect to any provisions thereof
relating to conflicts of law. TIME IS OF THE ESSENCE IN THIS AGREEMENT.
16. Captions. The captions included in this Agreement are included
--------
solely for convenience of reference and are not to be considered a part of this
Agreement.
17. Counterparts. This Agreement may be executed in various
------------
counterparts, which together shall constitute one and the same instrument.
20
If the foregoing correctly sets forth the understanding among the
Underwriters and the Company, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours,
VIADOR INC.
By________________________________
Name____________________________
Title___________________________
Accepted as of the date first above written on behalf of
BEAR, XXXXXXX & CO. INC.
CIBC WORLD MARKETS CORP.
U.S. BANCORP XXXXX XXXXXXX INC.
By: BEAR, XXXXXXX & CO. INC.
By_________________________________
Name_____________________________
Title____________________________
SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
--------------------------------------------------------------------------------
Bear, Xxxxxxx & Co. Inc. ................................ [__]
CIBC World Markets Corp. ................................ [__]
U.S. Bancorp Xxxxx Xxxxxxx Inc. ......................... [__]
Total................................................ 4,000,000
Exhibit A
Form of Opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus. The Company is duly qualified to transact business
and is in good standing in each jurisdiction listed on Annex A hereto.
-------
2. All of the outstanding shares of capital stock of the Company have been,
to such counsel's knowledge, duly authorized and validly issued, are fully paid
and nonassessable and were not issued in violation of any preemptive or similar
rights contained in the Amended and Restated Certificate of Incorporation or
Bylaws of the Company. As of June 30, 1999, to such counsel's knowledge, the
authorized, issued and outstanding capital stock of the Company is as set forth
in the Prospectus in the column entitled "Actual" under the caption
"Capitalization".
3. To such counsel's knowledge, there are not currently, and will not be
following the offering of the Shares, any outstanding subscriptions, rights,
warrants, calls, commitments of sale or options to acquire, or instruments
convertible into or exchangeable for, any capital stock or other equity interest
of the Company, except as described in the Prospectus and except as contained in
the Amended and Restated Certificate of Incorporation, Bylaws of the Company or
any agreement to which the Company is a party.
4. The Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby, including, without limitation, the corporate
power and authority to issue, sell and deliver the Shares.
5. This Agreement has been duly and validly authorized, executed and
delivered by the Company.
6. The execution and delivery by the Company of, and the performance by the
Company of its obligations under, this Agreement and the issuance and sale of
the Shares will not contravene any provision of (a) the Delaware General
Corporation Law United States or any federal statute, rule or regulation known
to us to be applicable to the Company (other than federal or state securities
laws, which are specifically addressed elsewhere herein), (b) the Amended and
Restated Certificate of Incorporation or Bylaws of the Company, (c) any
agreement binding upon the Company that is material to the Company and filed as
an exhibit to the Registration Statement or (d) to such counsel's knowledge, any
order, judgment, or decree of any United States federal or California state
governmental body, agency or court having jurisdiction over the Company. No
consent, approval, authorization or order of or qualification with any United
States federal or California state governmental body or agency is required for
the performance by the Company of its obligations under this Agreement, except
such as has been obtained under the Securities Act and as may be required by the
securities or "blue sky" laws in connection with the offer and sale of the
Shares as contemplated by the Prospectus.
7. The Company is not and, immediately after giving effect to the offering
of the Shares and the application of the proceeds therefrom as described in the
Prospectus, will not be an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
8. The Registration Statement, Preliminary Prospectus and Prospectus
comply as to form in all material respects with the requirements for
registration statements on Form S-1 under the Securities Act and the
Securities Act Regulations; it being understood, however, that such counsel
need not express an opinion with respect to the financial statements,
schedules and other financial data and statistical data derived therefrom
included in the Registration Statement, Preliminary Prospectus or
Prospectus.
9. Except as set forth in this Agreement, to such counsel's knowledge,
there are no holders of securities of the Company who, by reason of the
execution by the Company of this Agreement or the consummation by the
Company of the transactions contemplated hereby, have the right to request
or demand that the Company register securities held by them under the
Securities Act, other than those who have waived any such rights.
10. To such counsel's knowledge, there is no legal or governmental
proceeding pending or threatened to which the Company is a party or to
which any of the properties of the Company is subject other than
proceedings fairly summarized in all material respects in the Prospectus
and proceedings which we believe are not likely to have a Material Adverse
Effect on the Company, or on the power or ability of the Company to perform
its obligations under this Agreement or to consummate the offering of the
Shares as contemplated by the Prospectus.
11. The statements contained in the Prospectus under the captions
"Management" and "Description of Capital Stock", in each case, insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information required
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein in all material respects.
Such counsel has participated in conferences with officers and
other representatives of the Company, representatives of the independent
certified public accountants of the Company and the Underwriters and its
representatives at which the contents of the Registration Statement, Preliminary
Prospectus and the Prospectus and related matters were discussed and, although
such counsel is not passing upon and assumes no responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, Preliminary Prospectus or the Prospectus (except as
indicated above), on the basis of the foregoing, no facts have come to such
counsel's attention which led such counsel to believe that the Registration
Statement, at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date or the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except as to financial statements
and schedules and other financial data, included therein).
In rendering such opinion, such counsel may rely as to matters
involving the application of laws other than the laws of the United States,
California and any other jurisdictions in which they are admitted, to the extent
such counsel deems proper and to the extent specified in such opinion, if at
all, upon an opinion or opinions (in form and substance reasonably satisfactory
to Underwriters' Counsel) of other counsel familiar with the applicable laws and
reasonably acceptable to Underwriters' Counsel; provided, that such opinion
shall expressly state that the Underwriters may rely on such opinion as if it
were addressed to them. In rendering such opinion, such counsel may rely as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and certificates or other written statements of officers
of departments of various jurisdictions having custody of documents respecting
the existence or good standing of the Company, provided that such opinion shall
state that such counsel and the Underwriters are justified in so relying upon
any such certificate. The opinion of such counsel for the Company shall state
that the opinion of any such
ii
other counsel is in form satisfactory to such counsel and, in their opinion, the
Underwriters and they are justified in relying thereon.
Exhibit B
VIADOR INC.
000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Lock-Up Agreement
September __, 1999
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
The undersigned understands that Bear, Xxxxxxx & Co. Inc. (the
"Representative") of the several underwriters (the "Underwriters"), proposes to
enter into an Underwriting Agreement with Viador Inc. (the "Company") providing
for the initial public offering (the "Initial Public Offering") by the
Underwriters, including the Representative, of the Company's Common Stock, par
value $0.001 per share (the "Common Stock").
In consideration of the Underwriters' agreement to purchase and undertake
the Initial Public Offering and for other good and valuable consideration,
receipt of which is hereby acknowledged, the undersigned, pursuant to this
letter agreement (this "Agreement"), agrees that, without the prior written
consent of the Representative, the undersigned will not, directly or indirectly,
offer, sell, contract to sell, grant any option to purchase, pledge or otherwise
dispose of any shares of Common Stock of the Company (including, without
limitation, shares of Common Stock of the Company that may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and shares of Common Stock
that may be issued upon exercise of a stock option or warrant) or any securities
convertible into or exercisable or exchangeable for such Common Stock (such
Common Stock and securities are referred to herein as, collectively,
"Securities"), or, in any manner, transfer all or a portion of the economic
consequences associated with the ownership of Securities, for a period (the
"Lock-Up Period") of 180 days after the date of the Prospectus used by the
Company in connection with the Initial Public Offering (any of the foregoing, a
"Disposition"); provided, however, that the undersigned may make a Disposition:
(i) as a bona fide gift or gifts, provided that the donee or donees thereof
agree in writing to be bound by the terms of this Agreement; (ii) as a
distribution to limited partners or shareholders of the undersigned, provided
that the distributees thereof agree in writing to be bound by the terms of this
Agreement; (iii) if the undersigned is an individual, either during his or her
lifetime or on death by will or intestacy to his or her immediate family or to a
trust the beneficiaries of which are exclusively the undersigned and/or a member
or members of his or her immediate family, provided that prior to any such
transfer each transferee agrees in writing to be bound by the terms of this
Agreement; or (iv) with the prior written consent of the Representative. For the
purposes of this paragraph, "immediate family" shall mean spouse, lineal
descendant, father, mother, brother or sister of the transferor.
In addition, the undersigned agrees that the Company may, and that the
undersigned will, (i) with respect to any shares for which the undersigned is
the record holder, cause the transfer agent for the
Company to note stop transfer instructions with respect to such shares on the
transfer books and records of the Company and (ii) with respect to any shares
for which the undersigned is the beneficial holder but not the record holder,
cause the record holder of such shares to cause the transfer agent for the
Company to note stop transfer instructions with respect to such shares on the
transfer books and records of the Company.
The foregoing restrictions are expressly agreed to preclude the holder
of any Securities from engaging in any hedging or other transaction that is
designed to or is reasonably expected to lead to or result in a Disposition of
Securities during the Lock-Up Period even if such Securities would be disposed
of by someone other than the undersigned. Such prohibited hedging or other
transactions would include, without limitation, any short sale (whether or not
against the box) or any purchase, sale or grant of any right (including, without
limitation, any put or call option) with respect to any of the Securities or any
security (other than a broad-based market basket or index) that includes,
relates to or derives any significant part of its value from any of the
Securities.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Agreement, and that, upon
request, the undersigned will execute any additional documents necessary or
desirable in connection with the enforcement hereof. All authority herein
conferred or agreed to the conferred shall survive the death or incapacity of
the undersigned and any obligations of the undersigned shall be binding upon the
heirs, personal representatives, successors, and assigns of the undersigned.
[signature page follows]
ii
The undersigned hereby executes this Agreement and agrees to its terms as
of the date first written above.
Very truly yours,
-----------------------------------------
(Signature)
Please type:
-----------------------------------------
(Name)
-----------------------------------------
(Address)
-----------------------------------------
(Social Security or
Taxpayer Identification No.)
Number of shares owned or Certificate numbers:
subject to warrants, options
or convertible securities: -----------------------------------------
------------------------------------ -----------------------------------------
iii
Exhibit C
Individuals Delivering a Lock-Up Agreement Pursuant to Section 6(j)
All stockholders of the Company.
