Exhibit 1.1
[ ] SHARES
HITTITE MICROWAVE CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
[______], 2005
XXXXXX BROTHERS INC.
XXXXXXX & COMPANY, LLC
XXXXX XXXXXXX & CO.
XXXXXX XXXXXX PARTNERS LLC
As Representatives of the several
Underwriters listed in SCHEDULE 1 hereto,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Hittite Microwave Corporation, a Delaware corporation (the "COMPANY"),
proposes to issue and sell [ ] shares of the Company's Common Stock, par value
$0.01 per share (the "COMMON STOCK") to the several Underwriters listed in
SCHEDULE 1 hereto (the "UNDERWRITERS"), for whom you are acting as
representatives (the "REPRESENTATIVES"), and certain stockholders of the Company
named in SCHEDULE 2 hereto (each, a "SELLING STOCKHOLDER" and collectively, the
"SELLING STOCKHOLDERS") propose severally to sell an aggregate of [ ]
shares of Common Stock (such [ ] shares of Common Stock being hereinafter
referred to as the "FIRM SHARES") to the Underwriters. In addition, the Company
proposes to grant to the Underwriters an option to purchase up to an additional
[ ] shares of Common Stock on the terms and for the purposes set forth in
Section 3 (the "OPTION SHARES"). The Firm Shares and the Option Shares, if
purchased, are hereinafter collectively called the "SHARES." This is to confirm
the agreement concerning the purchase of the Shares from the Company and the
Selling Stockholders by the Underwriters.
SECTION 1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1, and amendments thereto,
with respect to the Shares have (i) been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "SECURITIES
ACT"), and the rules and regulations (the "RULES AND REGULATIONS") of the United
States Securities and Exchange Commission (the "COMMISSION") thereunder, (ii)
been filed with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such registration statement and
each of the amendments thereto have been
delivered by the Company to the Representatives. As used in this Agreement,
"EFFECTIVE TIME" means the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "EFFECTIVE DATE" means the date of the
Effective Time; "PRELIMINARY PROSPECTUS" means each prospectus included in such
registration statement, or amendments thereof, before it became effective under
the Securities Act and any prospectus filed with the Commission by the Company
with the consent of the Representatives pursuant to Rule 424(a) of the Rules and
Regulations; "REGISTRATION STATEMENT" means such registration statement, as
amended at the Effective Time, including all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 6(a) hereof and deemed to be a part of
the Registration Statement as of the Effective Time pursuant to Rule 430A of the
Rules and Regulations; and "PROSPECTUS" means such final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Rules and Regulations. If the Company has filed an abbreviated registration
statement to register additional shares of Common Stock pursuant to Rule 462(b)
under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the term "REGISTRATION STATEMENT" shall be deemed to include
such Rule 462 Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations, and the Registration Statement and
any amendment thereto does not and will not, as of the applicable effective
date, 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, and the Prospectus and any amendment or supplement thereto will
not, as of the applicable filing date and each Delivery Date (as defined below),
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that no representation, warranty or agreement is made as to information
contained in or omitted from the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein.
(c) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, except where
the failure to be so qualified or in good standing would not
2
have a material adverse effect on the business, condition (financial or
otherwise), stockholders' equity, prospects or results of operations of the
Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"),
and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged. None of the
subsidiaries of the Company is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations.
(d) The Company has an authorized capitalization as set forth in
the Prospectus. All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable,
[were issued in compliance with federal and state securities laws,] and conform
to the description thereof contained in the Prospectus. All of the Company's
options, warrants and other rights to purchase or exchange any securities for
shares of the Company's capital stock have been duly and validly authorized and
issued, [were issued in compliance with federal and state securities laws,] and
conform to the description thereof contained in the Prospectus. All of the
issued shares of capital stock of each subsidiary of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable and
(except for directors' qualifying shares for any foreign subsidiaries) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except for the security interest granted in
connection with the credit facility as described in the Prospectus. None of such
securities were issued in violation of preemptive or other similar rights
arising by operation of law, under the charter and bylaws of the Company or any
of its subsidiaries or under any agreement to which the Company or any of its
subsidiaries is a party or otherwise.
(e) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor in accordance with this Agreement, will
be duly and validly issued, fully paid and non-assessable; and the Shares will
conform to the descriptions thereof contained in the Prospectus. Upon payment
for and delivery of the Shares to be sold by the Company pursuant to this
Agreement, the Underwriters will acquire good and valid title to such Shares, in
each case free and clear of all liens, encumbrances, equities, preemptive
rights, subscription rights, other rights to purchase, voting or transfer
restrictions and other similar claims.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Company.
(g) The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated hereby (the
"TRANSACTIONS") will not (i) conflict with or result in a breach or violation of
any of the terms or provisions of, impose any material lien, charge or
encumbrance upon any property or assets of the Company and its subsidiaries, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement, license or
3
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (ii)
result in any violation of the provisions of the charter or bylaws of the
Company or any of its subsidiaries or (iii) result in any material violation of
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets; and except for the registration of the Shares
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), applicable state or foreign
securities laws in connection with the purchase and distribution of the Shares
by the Underwriters, the rules of the Nasdaq Stock Market, Inc. and the rules of
the National Association of Securities Dealers, Inc. ("NASD"), no consent,
approval, authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution, delivery and
performance by the Company of this Agreement or any of the other documents to be
entered into by the Company in connection with the Transactions, the compliance
by the Company with all of the applicable provisions of this Agreement, and the
consummation by the Company of the Transactions, except for such consents,
approvals, authorizations, orders, filings or registrations as have been
obtained or made.
(h) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities registered or to be registered pursuant to any other registration
statement filed by or required to be filed by the Company under the Securities
Act. The holders of outstanding shares of the Company's capital stock are not
entitled to preemptive or other rights to subscribe for the Shares to be sold by
the Company pursuant to this Agreement nor, to the Company's knowledge, the
Shares to be sold by the Selling Stockholders pursuant to this Agreement. Except
as disclosed in the Prospectus, upon completion of the offering, no options,
warrants or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities for, shares
of capital stock of, or ownership interests in, the Company will be outstanding
(other than securities that may be granted by the Company after June 30, 2005
pursuant to the Company's 2005 Stock Incentive Plan).
(i) The Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A, or Regulations D or S, under the Securities Act,
other than shares issued pursuant to employee benefit plans, equity plans or
other employee compensation plans, or pursuant to outstanding options, rights or
warrants.
(j) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any
4
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not been any
change in the capital stock (other than (i) shares issued pursuant to employee
benefit plans, equity plans or other employee compensation plans, each of which
plans is described in the Prospectus, (ii) the repurchase by the Company of
5,000 shares of Common Stock that occurred on or about [ ], 2005 and (iii)
repurchases of shares of Common Stock issued to or held by employees of the
Company at cost upon termination of their employment or services pursuant to
agreements providing for the right of said repurchase) or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, consolidated financial position, stockholders'
equity, results of operations, business [or prospects] of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus.
(k) Neither the Company nor any of its subsidiaries has any
off-balance sheet arrangement (as defined in Item 303(a)(4) of Regulation S-K)
or material liability of any nature (matured or not matured, fixed or
contingent) to, or any financial interest in, any third party or unconsolidated
entity other than as set forth in the Prospectus. The financial statements
(including the related notes and supporting schedules) filed as part of the
Registration Statement or included in the Prospectus comply as to form in all
material respects with the requirements of Regulation S-X under the Securities
Act and present fairly the financial condition, results of operations and cash
flows of the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with accounting
principles generally accepted in the United States applied on a consistent basis
throughout the periods involved. The pro forma financial information included in
the Registration Statement and Prospectus has been prepared in accordance with
the applicable requirements of the Securities Act, the Rules and Regulations and
the official pronouncements, if any, of the Emerging Issues Task Force, and
includes all adjustments necessary to present fairly the pro forma financial
position of the Company presented therein at the date indicated and the results
of its operations for the respective periods specified. The other financial and
accounting data, operating data and statistical information and data that is
financial in nature included in the Prospectus is presented fairly and has been
prepared on a basis consistent in all material respects with the financial
statements filed as part of the Registration Statement and included in the
Prospectus and the books and records of the Company.
(l) PricewaterhouseCoopers LLP, whose report on certain financial
statements of the Company is included in the Prospectus, are and have been
independent public accountants as required by the Securities Act and the Rules
and Regulations during the period covered by the financial statements on which
they reported. Except as pre-approved in accordance with the requirements set
forth in Section 10A of the Exchange Act (to the extent applicable to the
Company), PricewaterhouseCoopers LLP
5
has not engaged in any "prohibited activities" (as defined in Section 10A of the
Exchange Act) on behalf of the Company.
(m) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except (i) such as are described in the
Prospectus or (ii) such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries; and all real property and
assets held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(n) The Company and each of its subsidiaries have all material
permits, licenses, franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities ("PERMITS") as are
necessary under applicable law to own their properties and to conduct their
businesses in the manner described in the Prospectus; each of the Company and
its subsidiaries has fulfilled and performed all of its material obligations
with respect to the Permits, and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or result
in any other material impairment of the rights of the holder of any such
Permits.
(o) The Company and each of its subsidiaries carry, or are covered
by, insurance from insurers of recognized financial responsibility in such
amounts and covering such risks as is adequate for the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries, and all policies of insurance insuring the Company and each
of its subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect in all material respects.
(p) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property or assets of the Company or any of its
subsidiaries is the subject; and, to the best of the Company's knowledge, no
such proceeding is threatened or contemplated by governmental authorities or
threatened by others. The statements contained in the Prospectus under the
captions "Risk Factors--If we fail to comply with export control regulations we
could be subject to substantial fines, or other sanctions" and
"Business--Litigation" constitute a fair and accurate summary in all material
respects of the subject matter thereof.
(q) The Company and each of its subsidiaries own or possess, or can
acquire on reasonable terms, adequate rights to use all material patents, patent
applications, inventions, trade secrets, trademarks, service marks, trade names,
domain names, trademark registrations, service xxxx registrations, copyrights,
know-how, manufacturing processes, formulae, licenses and other rights
(collectively, the
6
"INTELLECTUAL PROPERTY") necessary for the conduct of their respective
businesses as now conducted and as proposed to be conducted as described in the
Prospectus; and the expected expiration of any Intellectual Property would not
have a Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any notice of any claim of any such infringement or violation that
would require disclosure in the Prospectus. Except as described in the
Prospectus, no action, suit, arbitration, or legal, administrative or other
proceeding or investigation is pending, or, to the Company's knowledge, is
threatened, that involves the Intellectual Property. The Intellectual Property
of the Company and each of its subsidiaries does not infringe or conflict with
any right or valid and enforceable patent of any third party, or any discovery,
invention, product or process which is the subject of a valid patent application
filed by any third party of which the Company is aware. The Company is not
subject to any judgment, order, writ, injunction or decree of any court or any
federal, state, local, foreign or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or any
arbitrator, nor has it entered into or is a party to any contract that restricts
or impairs the use of any Intellectual Property in a manner that would
reasonably be expected to have a Material Adverse Effect. The security measures
taken and the protection afforded by the Company and each of its subsidiaries to
its trade secrets and other material non-patented technology are substantially
similar to the security measures taken and the protection afforded by similarly
situated companies in the Company's industry. Except as disclosed in the
Prospectus, to the Company's knowledge, no person is infringing or violating the
Company's rights with respect to the Intellectual Property.
(r) There are no contracts or other documents that are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations that have not
been described in the Prospectus or filed as exhibits to the Registration
Statement.
(s) No relationship, direct or indirect, exists between or among
the Company or any subsidiary on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand, that is
required to be described in the Prospectus that is not so described. Since the
date on which the Registration Statement was first filed with the Commission,
the Company has not, directly or indirectly, including through any subsidiary,
extended or maintained credit, or arranged for the extension of credit, or
renewed an extension of credit, in the form of a personal loan to or for any of
its directors or executive officers.
(t) No material labor disturbance by the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company, is
imminent.
(u) The Company and each of its subsidiaries is in compliance in
all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "REPORTABLE EVENT" (as
defined in ERISA) has occurred with respect to any "PENSION PLAN" (as defined in
ERISA) for which the
7
Company and each of its subsidiaries would be reasonably likely to have any
liability; the Company and each of its subsidiaries has not incurred and does
not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "PENSION PLAN" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "CODE"); and each "PENSION PLAN"
for which the Company and each of its subsidiaries would have any liability that
is intended to be qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action or by failure
to act, which would reasonably be expected to cause the loss of such
qualification.
(v) The Company and each of its subsidiaries have filed all
foreign, federal, state and local income and franchise tax returns required to
be filed through the date hereof and have paid all taxes due thereon (except
such taxes as the Company or any of its subsidiaries is challenging in good
faith), except where the failure to file any such return or to pay any such tax
would not have a Material Adverse Effect, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which has had
(nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries, would reasonably
be expected to have) a Material Adverse Effect.
(w) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed in
the Prospectus, the Company has not (i) issued or granted any securities other
than shares issued pursuant to employee benefit plans, equity plans or other
employee compensation plans, or pursuant to outstanding options, rights or
warrants, (ii) incurred any liability or obligation, direct or contingent, other
than liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any material transaction not in the ordinary course
of business or (iv) declared or paid any dividend on its capital stock. The cash
dividend in the aggregate amount of $[XX] payable immediately prior to the First
Delivery Date (A) has been duly and validly authorized by all necessary
corporate action on the part of the Company and its stockholders, (B) has not
resulted and will not result in a breach or violation of the terms or provisions
of any material agreement, license or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (C) has not resulted and will not result in any
violation of the provisions of the charter or bylaws of the Company or any of
its subsidiaries and (D) has not resulted and will not result in any material
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets. The Prospectus contains a
fair and accurate summary in all material respects of such cash dividend under
the heading "Dividend Policy."
(x) The Company and each of its subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains a system of internal accounting
controls that provides reasonable assurance that (A) transactions are executed
in accordance with management's authorization, (B) transactions are recorded as
necessary to permit
8
preparation of its financial statements in conformity with accounting principles
generally accepted in the United States and to maintain accountability for its
assets, (C) access to its assets is permitted only in accordance with
management's authorization, (D) the recorded accountability for its assets is
compared with existing assets at reasonable intervals and (E) material
information related to such controls is reported or otherwise made known to the
Company's Chief Executive Officer and Chief Financial Officer.
(y) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or bylaws (or similar organizational documents), (ii)
is in default, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject or
(iii) is in violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets is subject, except in the
case of clause (ii) or (iii) for such violations, defaults and events as would
not have a Material Adverse Effect.
(z) Neither the Company nor any of its subsidiaries, nor any
director, officer, employee or agent of the Company or any of its subsidiaries
or any stockholder thereof acting on behalf of the Company or any of its
subsidiaries, has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; made any
direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(aa) The Company and each of its subsidiaries (i) are, and at all
prior times were, in compliance with any and all applicable foreign, federal,
state and local laws, regulations, ordinances, rules, orders, judgments,
decrees, permits or other legal requirements relating to the protection of human
health and safety, the environment, natural resources or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), which
compliance includes obtaining, maintaining and complying with all permits and
authorizations and approvals required by Environmental Laws to conduct their
respective businesses and (ii) have not received notice of any actual or
potential liability under Environmental Laws for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except in the case of clause (i) or (ii)
where such non-compliance with or liability under Environmental Laws would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has been
named as a "potentially responsible party" under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, or any other
similar Environmental Law, except with respect to any matters, individually or
in the aggregate, that would not have a Material Adverse Effect. Except as
described in the Prospectus, (i) none of the Company and its subsidiaries is a
party to any proceeding under Environmental Laws in which a governmental
authority is
9
also a party, other than such proceedings regarding which the Company believes
no monetary penalties of $100,000 or more will be imposed, and (ii) none of the
Company and its subsidiaries anticipates material capital expenditures relating
to Environmental Laws.
(bb) Neither the Company nor any of its subsidiaries is, nor, as of
the applicable Delivery Date (as defined below) and after giving effect to the
Transactions and the application of the net proceeds therefrom as described in
the Prospectus, will be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission thereunder.
(cc) The Company and each of its subsidiaries have established and
maintain disclosure controls and procedures (as such term is defined in Rule
13a-15 under the Exchange Act). Such disclosure controls and procedures are
designed to ensure that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the
Commission's rules and forms, and include, without limitation, controls and
procedures designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act is
accumulated and communicated to the Company's management, including its
principal executive and principal financial officers, or persons performing
similar functions, as appropriate to allow timely decisions regarding required
disclosure. Such disclosure controls and procedures are effective in all
material respects to perform the functions for which they were established.
(dd) Since the date of the most recent balance sheet of the Company
and its consolidated subsidiaries audited by PricewaterhouseCoopers LLP and
reviewed by the audit committee of the board of directors of the Company, the
Company has not been advised of and is not aware of (i) any significant
deficiency or material weaknesses in the design or operation of internal control
over financial reporting that is reasonably likely to adversely affect the
Company's ability to record, process, summarize and report financial data or any
material weaknesses in internal controls; or (ii) any fraud that involves
management or other employees who have a significant role in the Company's
internal control over financial reporting.
(ee) Since the date of the most recent balance sheet of the Company
and its consolidated subsidiaries reviewed or audited by PricewaterhouseCoopers
LLP, there has been no change in the Company's internal control over financial
reporting that has materially affected, or is reasonably likely to materially
affect, the Company's internal control over financial reporting.
(ff) The Company is in material compliance with all applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002, including the rules and
regulations of the Commission promulgated thereunder, [and as of the date
hereof, the Company is aware of no reason that its quarterly report on Form 10-Q
for the fiscal quarter ended September
10
30, 2005 would not be accompanied by the certifications required to be filed or
submitted by the Company's chief executive officer and chief financial officer
pursuant to the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated
thereunder].
(gg) To the extent permitted by the terms of any option issued under
the Company's Amended and Restated 1996 Stock Option Plan or 2005 Stock
Incentive Plan (collectively, the "PLANS"), the Company (i) has exercised its
right to cause the holder of such option, or any shares of Common Stock issued
under such option, as the case may be, to be bound not to engage in any of the
transactions prohibited by the terms of the Lock-up Letter (as defined in
Section 6(j) below) for a period of 180 days after the date of the Prospectus
(the "PLAN LOCK-UP") and (ii) has imposed a stop-transfer instruction with the
Company's transfer agent with respect to the Plan Lock-up.
(hh) Except as disclosed in the Prospectus, the holders of at least
[99%] of the outstanding shares of the Company's capital stock as of the date
hereof, including securities convertible into or exercisable or exchangeable for
shares of capital stock as of the date hereof, have executed Lock-up Letters (as
described in Section 6(j)).
(ii) The Company has not distributed and, prior to the later to
occur of any Delivery Date and completion of the distribution of the Shares,
will not distribute, any offering material in connection with the offering and
sale of the Shares other than the Preliminary Prospectus and the Prospectus.
(jj) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares.
(kk) The Shares have been approved for quotation, subject to notice
of issuance, on The Nasdaq National Market.
SECTION 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLING
STOCKHOLDERS. Each Selling Stockholder severally represents, warrants and agrees
that:
(a) The Selling Stockholder has, and immediately prior to the First
Delivery Date the Selling Stockholder will have, good and valid title to the
Shares to be sold by the Selling Stockholder hereunder on such date, free and
clear of all liens, encumbrances, equities or claims (except such as may arise
under this Agreement, the Custody Agreement and the Power of Attorney, each as
defined below); and upon delivery of such Shares and payment therefor pursuant
hereto, good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several Underwriters.
(b) The Selling Stockholder has placed in custody under a custody
agreement (the "CUSTODY AGREEMENT" and, together with all other similar
agreements executed by the other Selling Stockholders, the "CUSTODY AGREEMENTS")
with [the
11
Company], as custodian (the "CUSTODIAN"), for delivery under this Agreement,
certificates in negotiable form (with signature guaranteed by a commercial bank
or trust company having an office or correspondent in the United States or a
member firm of the New York or American Stock Exchanges) representing the Shares
to be sold by the Selling Stockholder hereunder.
(c) The Selling Stockholder has duly and irrevocably executed and
delivered a power of attorney (the "POWER OF ATTORNEY" and, together with all
other similar agreements executed by the other Selling Stockholders, the "POWERS
OF ATTORNEY") appointing Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxxxx, or either of
them, as attorneys-in-fact, with full power of substitution, and with full
authority (exercisable by any one or more of them) to execute and deliver this
Agreement and to take such other action as may be necessary or desirable to
carry out the provisions hereof on behalf of the Selling Stockholder.
(d) The Selling Stockholder has full right, power and authority to
enter into this Agreement, the Power of Attorney and the Custody Agreement; the
execution, delivery and performance of this Agreement, the Power of Attorney and
the Custody Agreement by the Selling Stockholder, the compliance by the Selling
Stockholder with all of the applicable provisions of this Agreement, the Power
of Attorney and the Custody Agreement, and the consummation by each Selling
Stockholder of the transactions contemplated hereby and thereby will not (i)
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of the
property or assets of the Selling Stockholder is subject, except where such
breach, violation or default would not adversely affect the Selling
Stockholder's ability to perform its obligations under this Agreement, the Power
of Attorney and the Custody Agreement, (ii) if the Selling Stockholder is not a
natural person, result in any violation of the provisions of the charter or
bylaws, articles of partnership, deed of trust or other organization documents
of the Selling Stockholder or (iii) result in any material violation of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Selling Stockholder or any of its properties
or assets; and, except for the registration of the Shares under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act, applicable state or
foreign securities laws in connection with the purchase and distribution of the
Shares by the Underwriters, the rules of the Nasdaq Stock Market, Inc. or the
rules of the NASD, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required for
the execution, delivery and performance of this Agreement, the Power of Attorney
or the Custody Agreement by the Selling Stockholder, the compliance by the
Selling Stockholder with all of the applicable provisions of this Agreement, the
Power of Attorney and the Custody Agreement, and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby, except for such
consents, approvals, authorizations, orders, filings or registrations as have
been obtained or made.
12
(e) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder
expressly for use therein, such Preliminary Prospectus and the Registration
Statement did not, and the Prospectus and any further amendments or supplements
to the Registration Statement and the Prospectus, when they become effective or
are filed with the Commission, as the case may be, will not, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(f) The Selling Stockholder is not prompted to sell the Shares by
any information concerning the Company that is not set forth in the Registration
Statement and the Prospectus.
(g) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(h) This Agreement has been duly authorized (if applicable),
executed and delivered by or on behalf of the Selling Stockholder.
SECTION 3. PURCHASE OF THE SHARES BY THE UNDERWRITERS. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell [ ] shares of the Firm
Shares, and each Selling Stockholder hereby agrees to sell the number of shares
of the Firm Shares set forth opposite its name in SCHEDULE 2 hereto, to the
several Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase the number of shares of the Firm Shares set forth opposite
that Underwriter's name in SCHEDULE 1 hereto. Each Underwriter shall be
obligated to purchase from the Company and from each Selling Stockholder that
number of Firm Shares obtained by multiplying [INSERT NUMBER OF FIRM SHARES TO
BE SOLD BY COMPANY] Firm Shares, in the case of the Company, and the number of
Firm Shares set forth opposite the name of such Selling Stockholder in SCHEDULE
2 hereto, in the case of a Selling Stockholder, in each case by a fraction the
numerator of which is the number of Firm Shares set forth opposite the name of
such Underwriter in SCHEDULE 1 hereto and the denominator of which is the total
number of Firm Shares. The respective purchase obligations of the Underwriters
with respect to the Firm Shares shall be rounded among the Underwriters to avoid
fractional shares, as the Representatives may determine.
In addition, the [Company] grants to the Underwriters an option to
purchase up to [ ] shares of Option Shares[, and each Selling Stockholder
grants to the Underwriters an option to purchase up to the number of Option
Shares set forth opposite its name in SCHEDULE 2 hereto]. Such option is granted
for the purpose of covering over-allotments in the sale of Firm Shares and is
exercisable as provided in Section 5 hereof. Shares of Option Shares shall be
purchased severally for
13
the account of the Underwriters in proportion to the number of shares of Firm
Shares set forth opposite the name of such Underwriters in SCHEDULE 1 hereto.
[If the over-allotment option is less than fully exercised, the Underwriters
will purchase shares from the Company and each of the Selling Stockholders on a
pro rata basis, based on the proportion of the total Option Shares offered by
the Company or such Selling Stockholder, as the case may be.] The respective
purchase obligations of each Underwriter with respect to the Option Shares shall
be adjusted by the Representatives so that no Underwriter shall be obligated to
purchase Option Shares other than in 100 share amounts.
The price of both the Firm Shares and any Option Shares shall be $[ ]
per share.
The Company and the Selling Stockholders shall not be obligated to
deliver any of the Shares to be delivered on any Delivery Date, except upon
payment for all the Shares to be purchased on such Delivery Date as provided
herein.
SECTION 4. OFFERING OF SHARES BY THE UNDERWRITERS. Upon authorization by
the Representatives of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set
forth in the Prospectus.
SECTION 5. DELIVERY OF AND PAYMENT FOR THE SHARES. Delivery of and
payment for the Firm Shares shall be made at the offices of Xxxxx Xxxx LLP,
World Trade Center West, 000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, at
10:00 A.M., New York City time, on the fourth full business day following the
date of this Agreement or at such other date, time or place as shall be
determined by agreement between the Representatives and the Company. This date
and time are sometimes referred to as the "FIRST DELIVERY DATE." On the First
Delivery Date, the Company and the Selling Stockholders shall deliver or cause
to be delivered certificates representing the Firm Shares to the Representatives
for the account of each Underwriter against payment to or upon the order of the
Company and the Selling Stockholders of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Firm Shares
shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Shares, the Company and the Selling
Stockholders shall make the certificates representing the Firm Shares available
for inspection by the Representatives in Boston, Massachusetts, not later than
2:00 P.M., New York City time, on the business day prior to the First Delivery
Date.
The option granted in Section 3 will expire 30 days after the date of
this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Company by the Representatives. Such notice
shall set forth the aggregate number of shares of Option Shares as to which the
option is being exercised,
14
the names in which the shares of Option Shares are to be registered, the
denominations in which the shares of Option Shares are to be issued and the date
and time, as determined by the Representatives, when the shares of Option Shares
are to be delivered; provided, however, that this date and time shall not be
earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the shares of Option Shares are delivered are sometimes
referred to as a "SUBSEQUENT DELIVERY DATE" and the First Delivery Date and any
Subsequent Delivery Date are sometimes each referred to as a "DELIVERY DATE".
Delivery of and payment for the Option Shares shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on each such
Subsequent Delivery Date. On each such Subsequent Delivery Date, the Company and
the Selling Stockholders shall deliver or cause to be delivered the certificates
representing the Option Shares to be purchased on such Subsequent Delivery Date
to the Representatives for the account of each Underwriter against payment to or
upon the order of the Company and the Selling Stockholders of the purchase price
by wire transfer in immediately available funds. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Option Shares shall be registered in such names and in such
denominations as the Representatives shall request in the aforesaid written
notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Shares, the Company and the Selling Stockholders
shall make the certificates representing the Option Shares available for
inspection by the Representatives in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to each such Subsequent
Delivery Date.
SECTION 6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the
Securities Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as provided herein; to advise
the Representatives, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending
15
or supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits) and (ii)
each Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time after
the Effective Time in connection with the offering or sale of the Shares and if
at such time any events shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Representatives and, upon their request,
to prepare and file such amendment or supplement to the Prospectus and to
furnish without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representatives and counsel for the Underwriters to allow the
Representatives and their counsel a reasonable period of time to review and
comment thereon prior to filing and not to file any such amendment or supplement
to which the Representatives reasonably object;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver to the
Representatives an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule 158);
16
(g) For a period of five years following the Effective Date, to
furnish to the Representatives copies of all materials furnished by the Company
to its stockholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange or automatic quotation system upon which the Common Stock may be listed
or quoted pursuant to requirements of or agreements with such exchange or
automatic quotation system or to the Commission pursuant to the Exchange Act or
any rule or regulation of the Commission thereunder, other than documents filed
by the Company with the Commission and available electronically through the
Commission's XXXXX system (or any successor system);
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares for offering and
sale under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Shares; provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction in which it is not
otherwise subject;
(i) For a period of 180 days from the date of the Prospectus (the
"LOCK-UP PERIOD"), not to, directly or indirectly: (i) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any shares of Common Stock or securities convertible
into or exchangeable for Common Stock (other than the Shares and shares issued
or issuable pursuant to any of the Plans or pursuant to currently outstanding
options, warrants or rights), or sell or grant options, rights or warrants with
respect to any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than pursuant to any of the Plans); (ii)
enter into any swap or other derivatives transaction that transfers to another,
in whole or in part, any of the economic benefits or risks of ownership of such
shares of Common Stock (other than the Shares and shares issued or issuable
pursuant to any of the Plans or pursuant to currently outstanding options,
warrants or rights), whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or other securities, in
cash or otherwise; (iii) file or cause to be filed a registration statement with
respect to any shares of Common Stock or securities convertible, exercisable or
exchangeable into Common Stock or any other securities of the Company (other
than any registration statement or statements on Form S-8 relating to the
Plans); or (iv) publicly disclose the intention to do any of the acts prohibited
by the foregoing, in each case without the prior written consent of Xxxxxx
Brothers Inc. on behalf of the Underwriters; PROVIDED, HOWEVER, that, if (1)
during the last 17 days of the Lock-Up Period, the Company issues an earnings
release or discloses, through a press release or the filing of a Current Report
on Form 8-K, the occurrence of a material event relating to the Company, or
Xxxxxx Brothers, Inc., on behalf of the Underwriters, shall notify the Company
in writing that, in its reasonable judgment, a material event relating to the
Company has occurred, or (2) prior to the expiration of the Lock-Up Period, the
17
Company announces that it will issue an earnings release during the 16-day
period beginning on the last day of the Lock-Up Period, then the restrictions
described in this Section 6(i) shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the
announcement of the material news or the occurrence of the material event,
unless Xxxxxx Brothers Inc., on behalf of the Underwriters, waives, in writing,
such extension; PROVIDED FURTHER, HOWEVER, that the restrictions described in
this Section 6(i) shall automatically terminate in the event that the Company
issues any shares of Common Stock or securities convertible into or exchangeable
for Common Stock in an equity or debt offering led or managed by any of the
Representatives;
(j) To use its commercially reasonable efforts to cause each
stockholder, officer and director of the Company to furnish to the
Representatives, prior to the First Delivery Date, a letter or letters,
substantially in the form previously provided to counsel for the Company (the
"LOCK-UP LETTER"), pursuant to which each such person shall agree, subject to
certain exceptions, not to, directly or indirectly, (i) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any shares of Common Stock or securities convertible
into or exchangeable for Common Stock or (ii) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such shares of Common Stock,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or other securities, in cash or otherwise,
in each case for a period of 180 days from the date of the Prospectus, without
the prior written consent of Xxxxxx Brothers Inc. on behalf of the Underwriters;
(k) To apply to have the Shares listed for quotation on The Nasdaq
National Market, and to use its best efforts to complete that application,
subject only to official notice of issuance, prior to the First Delivery Date;
(l) To apply the net proceeds from the sale of the Shares being
sold by the Company as set forth in the Prospectus;
(m) To take such steps within its power as shall be necessary to
ensure that neither the Company nor any subsidiary shall become an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(n) To enforce the terms of the Plan Lock-up with each of its
directors, officers and stockholders and each person who acquires shares of
Common Stock before the expiration of such Plan Lock-up pursuant to the exercise
of any option or right granted under the Plans, except as otherwise permitted
with the prior written consent of Xxxxxx Brothers Inc. on behalf of the
Underwriters; and, unless otherwise instructed by Xxxxxx Brothers Inc., to issue
and impose a stop-transfer instruction with the Company's transfer agent with
respect to the Plan Lock-up.
18
The Company further acknowledges and agrees that the Underwriters'
research analysts and research departments are required to be independent from
their respective investment banking divisions and are subject to certain
regulations and internal policies, and that such Underwriters' research analysts
may hold and make statements or investment recommendations and/or publish
research reports with respect to the Company and/or the offering of the Shares
that differ from the views of the Underwriters' respective investment bankers.
The Company acknowledges that each of the Underwriters is a full-service
securities firm and, as such, from time to time, subject to applicable
securities laws, may effect transactions for its own account or the account of
its customers and hold long or short positions in debt or equity securities of
the Company.
SECTION 7. FURTHER AGREEMENTS OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder agrees:
(a) To comply with the terms and conditions of the Lock-up Letter
between such Selling Stockholder and the Representatives;
(b) That the Shares to be sold by the Selling Stockholder hereunder
which are represented by the certificates held in custody for the Selling
Stockholder are subject to the interest of the Underwriters and the other
Selling Stockholders hereunder, that the arrangements made by the Selling
Stockholder for such custody are to that extent irrevocable, and that the
obligations of the Selling Stockholder hereunder shall not be terminated by any
act of the Selling Stockholder, by operation of law, by the death or incapacity
of any individual Selling Stockholder or, in the case of a trust, by the death
or incapacity of any executor or trustee or the termination of such trust, or
the occurrence of any other event; and
(c) To deliver to the Representatives prior to the First Delivery
Date, a properly completed and executed United States Treasury Department Form
W-8 (if the Selling Stockholder is a non-United States person) or Form W-9 (if
the Selling Stockholder is a United States person).
SECTION 8. EXPENSES. Except as otherwise agreed to in writing by the
Company and the Representatives, the Company agrees to pay all costs and
expenses incident to the performance of the obligations of the Company under
this Agreement and in connection with the Transactions, including: (a) the costs
incident to the authorization, issuance, sale and delivery of the Shares being
sold by it hereunder and any taxes payable in that connection; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement, the Agreement Between U.S.
Underwriters and International Managers, any Supplemental Agreement Among U.S.
Underwriters and any other related documents in connection with the offering,
purchase, sale and delivery of the Shares; (e)
19
the fees and expenses of the Custodian and any attorney-in-fact and the costs of
delivering and distributing the Custody Agreements and the Powers of Attorney;
(f) the filing fees incident to securing the review by the NASD of the terms of
sale of the Shares (including related fees and expenses of counsel to the
Underwriters incurred in connection with such review, not in excess, in the
aggregate, of $10,000); (g) any applicable listing, quotation or other fees; (h)
the fees and expenses (not in excess, in the aggregate, of $10,000) of
qualifying the Shares under the securities laws of the several jurisdictions as
provided in Section 6(h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(i) the costs and expenses of the Company relating to investor presentations on
any "road show" undertaken in connection with the marketing of the offering of
the Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show; and (j) all
other costs and expenses incident to the performance of the obligations of the
Company under this Agreement; PROVIDED, HOWEVER, that, except as provided in
this Section 8 and in Section 13, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Shares that they may sell and the expenses of advertising any offering of
the Shares made by the Underwriters. Except as otherwise provided by the Company
and the Selling Stockholders, the fees and expenses of the Selling Stockholders
shall be paid in the manner set forth in that certain Registration Rights
Agreement made as of November 20, 2000 by and among the Company and certain of
its stockholders.
SECTION 9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Stockholders contained herein, to the performance by the Company
and the Selling Stockholders of their respective obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(a); 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 any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact that, in the opinion of such Underwriter or Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, Professional Corporation, counsel for the Underwriters, is material or
omits to state a fact
20
that, in the opinion of such Underwriter or such counsel, is material or is
required to be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Custody Agreements,
the Powers of Attorney, the Shares, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
Transactions shall be reasonably satisfactory in all material respects to
counsel for the Underwriters, and the Company and the Selling Stockholders shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxx Xxxx LLP shall have furnished to the Representatives its
written opinion, as counsel to the Company, addressed to the Underwriters and
dated such Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware,
is duly registered to do business as a foreign corporation in the
Commonwealth of Massachusetts [and ] and has all corporate power
and authority necessary to own or hold its properties and conduct its
businesses as described in the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus under the caption "Description of Capital
Stock - General Matters," and all of the issued and outstanding shares
of capital stock of the Company (excluding the Shares being delivered
by the Company on such Delivery Date to the Underwriters hereunder)
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus;
(iii) The Shares being delivered by the Company on such
Delivery Date to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor in
accordance with the terms hereof, will be duly and validly issued,
fully paid and non-assessable;
(iv) Except as described in the Prospectus and except for
such rights as have been waived, there are no preemptive or other
rights to subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any of the Shares pursuant to the Company's
certificate of incorporation or bylaws or any agreement or other
instrument known to such counsel and to which the Company is a party;
(v) To such counsel's knowledge and except for the matters
described in the Prospectus, there are no legal or governmental
21
proceedings pending or threatened to which the Company is a party or
of which any property or assets of the Company is the subject which,
if determined adversely to the Company would be reasonably likely to
have a Material Adverse Effect;
(vi) The Registration Statement and any Rule 462(b)
Registration Statement were declared effective under the Securities
Act as of the date or dates specified in such opinion, the Prospectus
was filed with the Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified in such opinion on the
date specified therein, and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose is pending or
threatened by the Commission;
(vii) The Registration Statement, as of its effective date,
and the Prospectus, as of its filing date, and any amendments or
supplements thereto made by the Company prior to such Delivery Date,
as of their respective effective or filing dates (except in each case
for the financial statements, the notes thereto, the financial
schedules and the financial, accounting and statistical data and
information derived therefrom, as to which such counsel need express
no opinion) complied as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations;
(viii) The statements contained in the Prospectus under the
captions "Description of Capital Stock," "[ ]" and the statements
contained in Item 14 of the Registration Statement, insofar as they
describe federal or state statutes, rules and regulations, constitute
a fair summary thereof in all material respects, and the opinion of
such counsel filed as Exhibit 5.1 to the Registration Statement is
confirmed, and the Underwriters may rely upon such opinion as if it
were addressed to them;
(ix) To such counsel's knowledge, there are no contracts or
other documents which are required to be described in the Prospectus
or filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations that have not been so described or
filed;
(x) This Agreement has been duly authorized, executed and
delivered by the Company;
(xi) The issuance and sale of the Shares being delivered on
such Delivery Date by the Company pursuant to this Agreement, the
execution, delivery and performance by the Company of its obligations
under this Agreement and the consummation by the Company of the
transactions contemplated hereby will not result in a breach or
violation of any of the
22
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument filed as an exhibit to the Registration Statement, nor will
such actions result in any violation of the provisions of the charter
or bylaws of the Company or any material violation of any statute,
order, rule or regulation known to such counsel of any federal or
Massachusetts court or governmental agency or body having jurisdiction
over the Company or any of its properties or assets; and, except for
the registration of the Shares under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act, applicable state or foreign
securities laws in connection with the purchase and distribution of
the Shares by the Underwriters, the rules of the Nasdaq Stock Market,
Inc. and the rules of the NASD, no consent, approval, authorization or
order of, or filing or registration with, any such federal or
Massachusetts court or governmental agency or body is required for the
execution, delivery and performance by the Company of its obligations
under this Agreement and the consummation by the Company of the
transactions contemplated hereby, except for such consents, approvals,
authorizations, orders, filings or registrations as have been obtained
or made;
(xii) Except for the statements contained in the Prospectus
under the heading "Description of Capital Stock--Registration Rights,"
to such counsel's knowledge, there are no contracts or agreements
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act;
(xiii) The Company is not, and after giving effect to the
Transactions and the application of the net proceeds from the Shares
being sold by the Company as described in the Prospectus, will not be,
an "investment company" as defined in the Investment Company Act of
1940, as amended.
(xiv) The cash dividend in the aggregate amount of $[XX]
payable immediately prior to the First Delivery Date (as defined
below) (A) has been duly and validly authorized by all necessary
corporate action on the part of the Company and its stockholders, (B)
has not resulted and will not result in a breach or violation of any
of the terms or provisions of any agreement, license or instrument to
which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject and that
is filed as an exhibit to the Registration
23
Statement, except for such breaches and violations as have been
validly waived, (C) has not resulted and will not result in any
violation of the provisions of the charter or bylaws of the Company,
(D) to such counsel's knowledge has not resulted and will not result
in any violation of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its properties or assets. The Prospectus contains a
fair and accurate summary in all material respects of such cash
dividend under the heading "Dividend Policy."
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the Commonwealth of Massachusetts and the General Corporation Law of
the State of Delaware, that it is subject to such assumptions, limitations and
qualifications as are stated therein, and that, insofar as such opinion involves
factual matters, it has relied upon certificates of officers of the Company and
such other persons as it shall deem appropriate. Such opinion shall also be to
the effect that (i) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement and (ii) based on
the foregoing and such matters as such counsel shall describe therein, no facts
have come to the attention of such counsel that lead it to believe that the
Registration Statement (except in each case for the financial statements, the
notes thereto, the financial schedules and the financial, accounting and
statistical data and information derived therefrom, as to which such counsel
need express no opinion) as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus (except as stated above) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing opinion and statement may be qualified by a
statement to the effect that (other than as set forth in clause (viii and xiv)
above) such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus.
(e) The Representatives shall have received from Iandiorio & Xxxxx,
intellectual property counsel for the Company, such opinion, dated such Delivery
Date, with respect to the matters set forth in EXHIBIT A hereto.
(f) The Representatives shall have received from Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Underwriters, such
opinion, dated such Delivery Date, with respect to the issuance and sale of the
Shares, the Registration Statement, the Prospectus and other related matters as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
24
(g) Counsel to each of the Selling Stockholders shall have
furnished to the Representatives its written opinion, as counsel to such Selling
Stockholder, addressed to the Underwriters and dated such Delivery Date, in the
form attached hereto as EXHIBIT B.
(h) At the time of execution of this Agreement, the Representatives
shall have received from PricewaterhouseCoopers LLP a letter, in form and
substance satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and the Rules and
Regulations and the rules and regulations of the Public Company Accounting
Oversight Board (United States) and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Rules and Regulations and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(i) With respect to the letter of PricewaterhouseCoopers LLP
referred to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "INITIAL LETTER"),
PricewaterhouseCoopers LLP shall have delivered to the Representatives a letter
(the "BRING-DOWN LETTER") of such accountants, addressed to the Underwriters and
dated such Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and the Rules and
Regulations and the rules and regulations of the Public Company Accounting
Oversight Board (United States) and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Rules and Regulations, (ii) stating, as of the date of the
Bring-down Letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than five days prior to the date of the
Bring-down Letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the Initial Letter and
(iii) confirming in all material respects the conclusions and findings set forth
in the Initial Letter.
(j) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, executed on behalf of the Company by its
Chairman of the Board, its President or a Vice President and its Chief Financial
Officer stating severally that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery Date;
the Company has complied with all its agreements contained herein; and
the conditions set forth in Sections 9(a) and 9(l) have been
fulfilled;
25
(ii) The signatory has carefully examined the Registration
Statement and the Prospectus and, in his opinion (A) the Registration
Statement and any amendment thereto did not, as of the applicable
effective date, 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, and the Prospectus and any
amendment or supplement thereto did not, as of the applicable filing
date, and does not, as of the Delivery Date, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and (B) since the Effective Date, no event has occurred
that should have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus that has not been so set
forth; and
(iii) To the knowledge of the signatory, the issuance and
sale of the Shares by the Company hereunder has not been enjoined
(temporarily or permanently) by any court or governmental body or
agency.
(k) Each Selling Stockholder (or one or more attorneys in fact on
behalf of the Selling Stockholders) shall have furnished to the Representatives
on such Delivery Date a certificate, dated such Delivery Date, signed by, or on
behalf of, the Selling Stockholder (or one or more attorneys in fact) stating
that the representations, warranties and agreements of the Selling Stockholder
contained herein are true and correct as of such Delivery Date and that the
Selling Stockholder has complied with all agreements contained herein to be
performed by the Selling Stockholder at or prior to such Delivery Date.
(l) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus (i) any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii) since such date,
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered on such Delivery Date on the terms and in
the manner contemplated herein and in the Prospectus.
(m) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the
26
New York Stock Exchange or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) or there shall have occurred any
other calamity or crisis, including without limitation as a result of terrorist
activities after the date hereof, as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Shares being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
(n) The Nasdaq Stock Market, Inc. shall have approved the Shares
for listing on the Nasdaq National Market, subject only to official notice of
issuance.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
SECTION 10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter,
its directors, officers, employees and agents and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which that Underwriter, director, officer,
employee, agent or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any materials or information provided to investors by, or
with the written approval of, the Company in connection with the marketing of
the offering of the Shares, including any road show or investor presentations
made to investors by the Company (whether in person or electronically)
("MARKETING MATERIALS"), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or in any Marketing Materials, any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (iii) any act or failure to act or any alleged act or failure
to act by any Underwriter in connection with, or relating in
27
any manner to, the Shares or the offering contemplated hereby, and that is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(PROVIDED, HOWEVER, that the Company shall not be liable under this clause (iii)
to the extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by any Underwriter through its gross negligence or willful misconduct), and
shall reimburse each Underwriter and each such director, officer, employee,
agent or controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter, director, officer, employee, agent or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein which
information consists solely of the information specified in Section 10(f); AND
PROVIDED, FURTHER, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus or any Marketing Materials
if (x) the Company shall have furnished copies of the Prospectus to the several
Underwriters in the requisite quantity and sufficiently in advance of
confirmation of sale to permit proper delivery of the Prospectus to such person
at or prior to the consummation of sale, and the person alleging such loss,
claim, damage, liability or action purchased Shares from the Underwriters but
was not sent or did not receive a copy of the Prospectus (as then amended or
supplemented); (y) such misstatement or omission or alleged misstatement or
omission was cured in the Prospectus; and (z) the timely delivery of the
Prospectus to such person would have constituted a complete defense to the
losses, claims, damages, liabilities and judgments asserted by such person. The
foregoing indemnity agreement is in addition to any liability that the Company
may otherwise have to any Underwriter or to any director, officer, employee,
agent or controlling person of that Underwriter.
(b) Each Selling Stockholder, severally and not jointly, shall
indemnify and hold harmless each Underwriter, its directors, officers, employees
and agents, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Shares), to which that Underwriter, director,
officer, employee, agent or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any
28
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, (ii) the omission or alleged omission to state
in any Preliminary Prospectus, Registration Statement or the Prospectus, or in
any amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein not misleading [or (iii) any
act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Selling Stockholders
shall not be liable under this clause (iii) to the extent that it is determined
in a final judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct),] but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning such
Selling Stockholder furnished to the Company by such Selling Stockholder
specifically for inclusion therein, and shall reimburse each Underwriter, its
directors, officers, employees and agents and each such controlling person for
any legal or other expenses reasonably incurred by that Underwriter, its
directors, officers, employees, agents or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the aggregate liability of any Selling Stockholder to the Underwriters and
their directors, officers, employees, agents and controlling persons shall not
exceed the aggregate purchase price, less underwriting discounts and
commissions, received by such Selling Stockholder from the sale of Shares by it
under this Agreement; PROVIDED, FURTHER, that such Selling Stockholder shall not
be liable to any Underwriter or any of its directors, officers, employees,
agents or controlling persons in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus if (x) the Company shall have furnished copies of the
Prospectus to the several Underwriters in the requisite quantity and
sufficiently in advance of the Effective Date to permit proper delivery of the
Prospectus to such person on or prior to the Effective Date; (y) such
misstatement or omission or alleged misstatement or omission was identified at
such time to such Underwriter or its counsel and cured in the Prospectus and the
Prospectus was required by law to be delivered to such person at or prior to the
written confirmation of the sale of Stock to such person and (z) the timely
delivery of the Prospectus to such person would have constituted a complete
defense to the losses, claims, damages, liabilities and judgments asserted by
such person; AND PROVIDED, FURTHER, that such Selling Stockholder shall not be
liable to any Underwriter or any of its directors, officers, employees, agents
or controlling persons in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any such amendment or supplement, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through
the
29
Representatives by or on behalf of any Underwriter specifically for inclusion
therein, which information consists solely of the information specified in
Section 10(f). The foregoing indemnity agreement is in addition to any liability
that the Selling Stockholders may otherwise have to any Underwriter or any
director, officer, employee, agent or controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers who have signed the Registration
Statement, each of its directors, each Selling Stockholder, and each person, if
any, who controls the Company or any Selling Stockholder within the meaning of
Section 15 of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer, Selling Stockholder or controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein, which information consists
solely of the information specified in Section 10(f), and shall reimburse the
Company and any such director, officer, Selling Stockholder or controlling
person for any legal or other expenses reasonably incurred by the Company or any
such director, officer, Selling Stockholder or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability that any Underwriter may
otherwise have to the Company or any such director, officer, Selling
Stockholder, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure and, PROVIDED FURTHER, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 10. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
30
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; PROVIDED, HOWEVER, that the indemnified party shall have
the right to employ counsel to represent jointly the indemnified party and any
other indemnified party and their respective directors, officers, employees,
agents and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the indemnified party
against the indemnifying party or parties under this Section 10 if, in the
reasonable judgment of the indemnified party, it is advisable for the
indemnified party and any other indemnified party (including their respective
directors, officers, employees, agents and controlling persons) to be jointly
represented by separate counsel, and in that event the reasonable fees and
expenses of such separate counsel shall be paid by the indemnifying party. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding and does not include any findings of fact or admissions of
fault or culpability as to the indemnified party, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment (subject, in the case of judgments, to the term,
conditions and limitations of this Section 10).
(e) If the indemnification provided for in this Section 10 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a), 10(b) or 10(c) in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholders on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
31
relevant equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholders, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the Shares under this Agreement, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Selling Stockholders or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 10(e) were
to be 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 into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 10 shall be deemed to include, for purposes of this Section 10(e), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 10(e), (i) 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 was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission and (ii) no
Selling Stockholder shall be required to contribute any amount in excess of the
amount by which the aggregate purchase price, less underwriting discounts and
commissions, received by such Selling Stockholder from the sale of Shares
exceeds the amount of any damages which such Selling Stockholder has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 10(e) are several in proportion to their respective
underwriting obligations and not joint. The Selling Stockholders' obligations to
contribute as provided in this Section 10(e) are several in proportion to the
number of Shares to be sold by each of them hereunder and not joint.
(f) The Underwriters severally confirm and the Company and the
Selling Stockholders acknowledge that (i) the statements with respect to the
public offering of the Shares by the Underwriters set forth on the cover page of
the Prospectus, and (ii) the second paragraph in the subsection entitled
"Commissions and Expenses," the
32
third sentence in the subsection entitled "Offering Price Determination," the
first, second and fourth paragraphs under the subsection entitled
"Stabilization, Short Positions and Penalty Bids" (except as it relates to
statements or actions of the Company), the subsection entitled "Electronic
Distribution" (except as it relates to statements or actions of the Company),
and the subsection entitled "Discretionary Sales," in each case under the
caption "Underwriting" in, the Prospectus are correct and constitute the only
information concerning such Underwriters furnished in writing to the Company by
or on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
SECTION 11. DEFAULTING UNDERWRITERS.
If, on any Delivery Date, any Underwriter defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Shares which the defaulting
Underwriter agreed but failed to purchase on such Delivery Date in the
respective proportions which the number of shares of the Firm Shares set forth
opposite the name of each remaining non-defaulting Underwriter in SCHEDULE 1
hereto bears to the total number of shares of the Firm Shares set forth opposite
the names of all the remaining non-defaulting Underwriters in SCHEDULE 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Shares on such Delivery Date if the total
number of Shares which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date exceeds 9.09% of the total number of Shares to
be purchased on such Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the number of Shares which
it agreed to purchase on such Delivery Date pursuant to the terms of Section 3.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Shares to be purchased
on such Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the Shares which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company or the Selling Stockholders,
except that the Company, the Selling Stockholders and the Underwriters will
continue to be liable for the payment of expenses to the extent set forth in
Sections 8 and 13. As used in this Agreement, the term "UNDERWRITER" includes
(along with the parties mentioned in SCHEDULE 1), for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
SCHEDULE 1 hereto who, pursuant to this Section 11, purchases Shares that a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company and the Selling Stockholders for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Shares of a defaulting Underwriter, either the Representatives or the
Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes in the
33
opinion of counsel for the Company or counsel for the Underwriters that may be
necessary in the Registration Statement, the Prospectus or in any other document
or arrangement.
SECTION 12. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Firm Shares if, prior to that
time, any of the events described in Sections 9(l) or 9(m), shall have occurred
such that the conditions set forth in such Sections shall not be satisfied, or
if the Underwriters shall decline to purchase the Shares for any reason
permitted under this Agreement.
SECTION 13. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company or
any Selling Stockholder shall fail to tender the Shares for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company or such Selling Stockholder to perform any agreement on its part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company or such Selling Stockholder
(including, without limitation, with respect to the Transactions) is not
fulfilled, the Company or such Selling Stockholder, as the case may be, will
reimburse the Underwriters for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) incurred by the Underwriters in connection
with this Agreement and the proposed purchase of the Shares, and upon demand
after the provision by the Representatives of reasonable documentation thereof,
the Company or such Selling Stockholder, as the case may be, shall pay the full
amount thereof to the Representatives, provided that if both the Company and
such Selling Stockholder shall have failed to tender the Shares for delivery,
such payment shall be made pro rata based upon the number of Shares to be sold
by such party. If this Agreement is terminated pursuant to Section 11 by reason
of the default of one or more Underwriters, neither the Company nor any Selling
Stockholder shall be obligated to reimburse any defaulting Underwriter on
account of those expenses.
SECTION 14. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission (with confirmation of transmission) to Xxxxxx
Brothers Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Registration Group (Fax: (000) 000-0000), with a copy, in
the case of any notice pursuant to Section 10(d), to the Director of Litigation,
Office of the General Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 (Fax: (000) 000-0000), and with a copy to Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx, 00000, Attention: Xxxxxxx X. Xxxxxxx (Fax: (000) 000-0000);
(b) if to the Company, shall be delivered or sent by mail or
facsimile transmission (with confirmation of transmission) to the address of the
Company set forth in the Registration Statement, Attention: President and Chief
Executive Officer (Fax:
34
(000) 000-0000), with a copy to Xxxxx Xxxx LLP, World Trade Center West, 000
Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention Xxxxxx X. Xxxxx, Xx.
(Fax: (000) 000-0000);
(c) if to any Selling Stockholder, shall be delivered or sent by
mail or facsimile transmission (with confirmation of transmission) to such
Selling Stockholder at the address set forth on SCHEDULE 2 hereto;
(d) provided, however, that any notice to an Underwriter pursuant
to Section 10(d) shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof. The
Company shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters or the Representatives by
Xxxxxx Brothers Inc.
(e) The Underwriters, the Company and any Selling Stockholder may
change the address for delivery of notice (including telex and facsimile
numbers) by giving notice thereof to the other parties.
SECTION 15. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
the Selling Stockholders and their respective successors, heirs, executors,
administrators and legal representatives. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the Company
and the Selling Stockholders contained in this Agreement shall also be deemed to
be for the benefit of directors, officers, employees, agents of the Underwriters
and the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement of
the Underwriters contained in Section 10(c) of this Agreement shall be deemed to
be for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement, the Selling Stockholders and any person
controlling the Company or any Selling Stockholder within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
15, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
SECTION 16. NO FIDUCIARY DUTY. Notwithstanding any preexisting
relationship, advisory or otherwise, between the parties or any oral
representations or assurances previously or subsequently made by the
Underwriters, the Company and the Selling Stockholders acknowledge and agree
that in connection with the offering: (a) there exists no fiduciary or agency
relationship between the Company or Selling Stockholders, on the one hand, and
the Underwriters, on the other; (b) the relationship between the Company and the
Selling Stockholders, on the one hand, and the
35
Underwriters, on the other, is entirely and solely commercial, based on
arms-length negotiations, and the Underwriters are not acting as advisors,
expert or otherwise, to either the Company or the Selling Stockholders; (c)
notwithstanding anything in this Agreement to the contrary, the Company and the
Selling Stockholders acknowledge that the Underwriters may have financial
interests in connection with the offering in addition to the difference between
the price to the public and the purchase price paid to the Company and the
Selling Stockholders, respectively, by the Underwriters for the shares, and the
Underwriters have no obligation to disclose, or account to the Company or the
Selling Stockholders for, any of such additional financial interests. The
Company and the Selling Stockholders hereby waive and release, to the fullest
extent permitted by law, any claims that the Company or the Selling Stockholders
may have against the Underwriters with respect to any breach or alleged breach
of fiduciary duty in connection with the Transactions.
SECTION 17. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Stockholders and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Shares and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
SECTION 18. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405 of the Rules
and Regulations.
SECTION 19. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
SECTION 20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 21. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[SIGNATURE PAGE FOLLOWS]
36
If the foregoing correctly sets forth the agreement between the
Company, the Selling Stockholders and the Underwriters, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
HITTITE MICROWAVE CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE SELLING STOCKHOLDERS LISTED IN
SCHEDULE 2 TO THE AGREEMENT
By:
--------------------------------------
Attorney-in-Fact
Accepted:
XXXXXX BROTHERS INC.
XXXXXXX & COMPANY, LLC
XXXXX XXXXXXX & CO.
XXXXXX XXXXXX PARTNERS LLC
For themselves and as Representatives
of the several Underwriters listed
in Schedule 1 hereto
By: XXXXXX BROTHERS INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SCHEDULE 1
NUMBER OF SHARES OF
FIRM SHARES TO BE
UNDERWRITER PURCHASED
Xxxxxx Brothers Inc.
Xxxxxxx & Company, LLC
Xxxxx Xxxxxxx & Co.
Xxxxxx Xxxxxx Partners LLC
TOTAL
SCHEDULE 2
NAME OF SELLING OPTION SHARES TO BE SOLD
STOCKHOLDER AND ADDRESS(1) FIRM SHARES TO BE SOLD IF OPTION IS EXERCISED
-----------------------------------------------------
TOTAL
=====================================================
(1). Each Selling Stockholder has appointed Xxxxxxx X. Xxxx and Xxxxxxx X.
Xxxxxx, and each of them, as Attorneys-in-Fact for such Selling Stockholder.
EXHIBIT A
Form of Opinion of Iandiorio & Xxxxx, Intellectual Property Counsel for Company
, 2005
XXXXXX BROTHERS INC.
XXXXXXX & COMPANY, INC.
XXXXX XXXXXXX & CO.
XXXXXX XXXXXX PARTNERS LLC
As Representatives of the several
Underwriters
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Intellectual Property of
Hittite Microwave Corp.
Our reference No.: HIT-100J
------------------------------------------------
Ladies and Gentlemen:
We have been retained by
Hittite Microwave Corp. (the "Company") with
respect to its intellectual property matters, including its patent matters. We
have been asked by the Company to provide an opinion concerning its patents.
The status of the Company's patents and patent applications, as of April
20, 2005, is shown in Exhibit A attached hereto. As indicated therein, the
Company has 9 issued U.S. patents, 1 pending U.S. patent applications, 2 issued
foreign patents and 0 pending foreign patent applications.
Exhibit A to this opinion is a list of the Company's patents and pending
patent applications (the "Patent Rights") which, to the best of our knowledge,
are owned by the Company. To the best of our knowledge either (a) an assignment
from the inventor(s) to the Company has been recorded in the United States
Patent and Trademark Office or in other applicable foreign jurisdictions, or (b)
the inventor(s) are under obligation of assignment to the Company, and an
assignment will be recorded in the United States Patent and Trademark Office or
in other applicable foreign jurisdictions. To the best of our knowledge, there
are no claims to any ownership interests or liens on any of the Patent Rights by
any party other
than the Company. To the best of our knowledge, the Company has not licensed the
rights to use any of its patents.
We are unaware of any facts that would lead us to believe that: (a) any of
the patents, which are listed in Exhibit A of this opinion, are invalid, (b) any
patent that may be issued in respect of a patent application, which is listed in
Exhibit A of this opinion, would be invalid, or (c) any material defects of form
exist in the preparation or filing of any of the patents and patent applications
which are listed in Exhibit A of this opinion.
To the best of our knowledge, for each of the U.S. patent applications
filed and prosecuted by us reflected in Exhibit A, we have disclosed or intend
to disclose to the United States Patent and Trademark Office all information
known to us and believed by us to be material to patentability as required under
37 C.F.R. Section 1.56.
To the best of our knowledge, there are no pending or threatened legal or
governmental proceedings relating to the patents and pending patent applications
reflected in Exhibit A, other than the proceedings before the United States
Patent and Trademark Office and foreign patent offices that are carried out
during the course of prosecution.
Other than any other actions, suits, proceedings or claims that have been
resolved or are immaterial, to the best of our knowledge the Company has not
received any claim of infringement of any patents held by others, and to our
knowledge there is no pending or threatened action, suit, proceeding or claim by
others that the Company is infringing a patent.
In addition, other than any actions, suits, proceedings or claims that have
been resolved, nothing has come to our attention that has led us to believe that
any patents of others are infringed by the present or future business of the
Company as described in the Prospectus under the caption "Business." We have
read the portions of the Prospectus under the captions "Risk Factors - Claims
that we are infringing third-party intellectual property rights may result in
costly and lengthy litigation that could harm our business", "Risk Factors -We
use a number of specialized technologies, some of which are patented, to design,
develop and manufacture our products. Infringement of our intellectual property
rights could hurt our competitive position, harm our reputation and adversely
affect our results of operations," "Business - Intellectual Property" and
"Business -Litigation." We have considered the statements contained therein,
although we have not independently verified the accuracy, completeness and
fairness of such statements. Based upon and subject to the foregoing, nothing
has come to our attention, as of the date of the Prospectus and the date hereof,
that leads us to believe that the
Patent Information contains an untrue statement of a material fact or omits to
state a material fact in light of the circumstances in which they are made. As
of the date of the Prospectus and the date hereof, we have no reason to believe
that the Patent Information is not in all material respects a fair and accurate
summary of the legal matters, documents and proceedings relating thereto,
insofar as such statements constitute a summary of the Company's patents and
applications and legal proceedings related thereto.
As used in this letter, "to the best of our knowledge" means this firm's
current knowledge, based upon information received from the Company, as a
consequence of our representation of the Company, and upon the patent
applications filed and prosecuted by us on behalf of the Company. With respect
to ownership of the United States patents, our opinion is based upon our
"knowledge" and upon our review of the United States Patent and Trademark Office
assignee records.
The statements in this letter with respect to patent infringement and
validity should be understood to involve a complex area of law where reasonable
minds, including those of judges or juries, differ. It should be understood that
the opinion set forth above is as of the date hereof and is not intended as a
guarantee of any particular result or decision.
We assume no obligation to advise you of any changes to the foregoing
subsequent to the delivery of this letter. Please also note that this opinion is
provided to you only for the specific purpose of assisting you in your
confidential evaluation of the Company. This opinion is not provided for any
other purpose, and you should not provide this opinion or disclose its contents
to any third party without obtaining our prior approval.
Very truly yours,
EXHIBIT B
Form of Opinion of Counsel for Selling Stockholder
(i) __________________________________ (the "SELLING STOCKHOLDER") has
record ownership to [shares of Series A Stock that are convertible into] the
Maximum Number of Shares (including the Maximum Number of Optional Shares), as
defined in the Power of Attorney, dated ______________, 2005 (the "POWER OF
ATTORNEY"), of the Selling Stockholder (such Shares being hereinafter referred
to as the "SHARES"), which Shares are represented by the certificates that have
been deposited with ______________, as custodian (the "CUSTODIAN"), pursuant to
the Custody Agreement, dated the date of the Power of Attorney (the "CUSTODY
AGREEMENT"), between the Selling Stockholder and the Custodian, and, to our
knowledge, has full right, power and authority to sell, assign, transfer and
deliver the Shares pursuant to the
Underwriting Agreement (as defined in the
Power of Attorney); and, assuming that the Underwriters (as defined in the
Underwriting Agreement) do not have notice of any "adverse claim" to the Shares,
upon delivery of the certificates for the Shares by or on behalf of each Selling
Stockholder duly endorsed in blank or accompanied by duly executed stock powers
and all applicable stock transfer stamps against payment therefor, the
Underwriters will acquire such Shares free of any "adverse claim," in each case,
within the meaning of Section 8-303 of the New York Uniform Commercial Code;
(ii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or made
by the Selling Stockholder for the consummation of the transactions contemplated
by the
Underwriting Agreement in connection with the sale of the Shares, except
such as have been or will be obtained or made under the Act and such as may be
required under state securities laws;
(iii) The execution, delivery and performance of the
Underwriting
Agreement and the consummation of the transactions therein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over any Selling
Stockholder or any of his, her or its properties or the charter or by-laws of
any Selling Stockholder, if applicable or any agreement or instrument to which
any Selling Stockholder is a party or by which any Selling Stockholder is bound
or to which any of the properties of any Selling Stockholder is subject and of
which we have knowledge;
(iv) Each of the Power of Attorney and Custody Agreement has been duly
authorized, executed and delivered by each Selling Stockholder and constitutes a
valid and legally binding obligation of each Selling Stockholder enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
(v) The
Underwriting Agreement has been duly authorized, executed and
delivered by the Attorneys on behalf of the Selling Stockholder.
