Exhibit 1.1
xxxxxx.xxx, Inc.
4,600,000 Shares /1/
Common Stock
UNDERWRITING AGREEMENT
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August 16, 1999
PRUDENTIAL SECURITIES INCORPORATED
XXXX XXXXXXXX XXXXXXX, a division of
Xxxx Xxxxxxxx Incorporated
XXXXX XXXXX XXXXXX & COMPANY
E*OFFERING CORP.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Each of xxxxxx.xxx, Inc., a Delaware corporation (the "Company"), the
stockholders of the Company named in Schedule 3 hereto (collectively, "Selling
Securityholders") including Xxxxx X. XxXxxxx and Xxxxxx Field (collectively, the
" Principal Selling Securityholders"), hereby confirms its agreement with the
several underwriters named in Schedule 1 hereto (the "Underwriters"), for whom
you have been duly authorized to act as representatives (in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. Securities. Subject to the terms and conditions herein contained, the
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Company proposes to issue and sell to the several Underwriters an aggregate of
4,000,000 shares (the "Firm Securities") of the Company's Common Stock, par
value $0.001 per share ("Common Stock"). The Company and the Selling
Securityholders also propose to issue and sell to the several Underwriters not
more than 600,000 additional shares of Common Stock if requested by the
Representatives as provided in Section 4 of this Agreement. Any and all shares
of Common Stock to be purchased by the Underwriters pursuant to such option are
referred to herein as the "Option Securities," and the Firm
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/1/ Plus an option to purchase from xxxxxx.xxx, Inc. and the Selling
Securityholders up to 600,000 additional shares to cover over-allotments.
Securities and any Option Securities are collectively referred to herein as the
"Securities."
2. Representations and Warranties of the Company and the Principal Selling
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Securityholders. Each of the Company and the Principal Selling Securityholders
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represents and warrants to, and agrees with, each of the several Underwriters
that:
(a) A registration statement on Form S-1 (File No. 333-80639) with respect to
the Securities, including a prospectus subject to completion, has been filed by
the Company with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"), and one or more amendments
to such registration statement has been so filed. After the execution of this
Agreement, the Company will file with the Commission either (i) if such
registration statement, as it has been amended, has been declared by the
Commission to be effective under the Act, either (A) if the Company relies on
Rule 434 under the Act, a Term Sheet (as hereinafter defined) relating to the
Securities, that shall identify the Preliminary Prospectus (as hereinafter
defined) that it supplements containing such information as is required or
permitted by Rules 434, 430A and 424(b) under the Act or (B) if the Company does
not rely on Rule 434 under the Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the Representatives prior
to the execution of this Agreement, or (ii) if such registration statement, as
it has been amended, has not been declared by the Commission to be effective
under the Act, an amendment to such registration statement, including a form of
prospectus, a copy of which amendment has been furnished to and approved by the
Representatives prior to the execution of this Agreement. The Company may also
file a related registration statement with the Commission pursuant to Rule
462(b) under the Act for the purpose of registering certain additional
Securities, which registration shall be effective upon filing with the
Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Act and included
in the Prospectus (as hereinafter defined); the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with any such registration statement or any
amendment thereto (including the prospectus subject to completion, if any,
included in the Registration Statement or any amendment thereto at the time it
was or is declared effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule
424(b)(7) under the Act, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the
prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and if no
prospectus is required to be filed pursuant to Rule 424(b) under the
Act, the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or suspending use of
any Preliminary Prospectus. When any Preliminary Prospectus was filed with the
Commission it (i) contained all statements required to be stated therein in
accordance with, and complied in all material respects with the requirements of,
the Act and the rules and regulations of the Commission thereunder and (ii) did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. When the
Registration Statement or any amendment thereto was or is declared effective, it
(i) contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any Term Sheet that is
a part thereof or any amendment or supplement to the Prospectus is filed with
the Commission pursuant to Rule 424(b) (or, if the Prospectus or part thereof or
such amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such amendment or
supplement to the Prospectus was or is declared effective) and on the Firm
Closing Date and any Option Closing Date (both as hereinafter defined), the
Prospectus, as amended or supplemented at any such time, (i) contained or will
contain all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements of, the
Act and the rules and regulations of the Commission thereunder and (ii) did not
or will not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (b) do not apply to statements or omissions made in
any Preliminary Prospectus, the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b) and the Rule 462(b)
Registration Statement has not been declared effective (i) the Company has filed
a Rule 462(b) Registration Statement in compliance with and that is effective
upon filing pursuant to Rule 462(b) and has received confirmation of its receipt
and (ii) the Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under the Act or
the Commission has received payment of such filing fee.
(d) The Company and each of its subsidiaries have been duly organized and are
validly existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation and are duly qualified to transact
business as foreign corporations and are in good standing under the laws of all
other jurisdictions where the ownership or leasing of their respective
properties or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified would not result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole ("Material Adverse Change").
(e) The Amalgamation Agreement, dated as of December 31, 0000 xxxxxxx
Xxxxxxxxx Xxxxxxxxxxx, xx Xxxxxxx, Xxxxxx corporation and a subsidiary of the
Company, Jutvision Canada, Inc., now known as bamboo Canada Inc. ("bamboo
Canada"), an Ontario, Canada corporation (the "Amalgamation Agreement"), was
appended to and formed part of the Certificate of Amalgamation dated January 1,
1999 which caused the amalgamation of Jutvision Corporation, with and into
bamboo Canada. The Amalgamation Agreement has been duly authorized, executed and
delivered by each of Jutvision Corporation and bamboo Canada and is a valid and
binding agreement of Jutvision Corporation and bamboo Canada, enforceable
against each in accordance with its terms and conforms to the description
thereof in the Prospectus.
(f) The Amended and Restated Conversion and Pairing Agreement, dated as of
June 7, 1999, entered into between the Company and bamboo Canada (the
"Conversion and Pairing Agreement"), has been duly authorized, executed and
delivered by each of the Company and bamboo Canada and is a valid and binding
agreement of the Company and bamboo Canada, enforceable against each in
accordance with its terms and conforms to the description thereof in the
Prospectus.
(g) The Company and each of its subsidiaries had all requisite corporate power
and corporate authority to execute and deliver the Amalgamation Agreement and to
consummate the transactions contemplated thereby.
(h) All consents, approvals and authorizations of and filings with any
governmental entity with respect to any applicable laws required on the part of
the Company or any of its subsidiaries in connection with the valid execution
and delivery of the Amalgamation Agreement, or the consummation of the
transaction contemplated thereby, have been obtained or made.
(i) Neither the performance, execution and delivery of the Amalgamation
Agreement by the Company or any of its subsidiaries, nor the consummation by the
Company and its subsidiaries of the transactions contemplated thereby, nor
compliance by the Company and its subsidiaries with any of the provisions
thereof, will result in any of the following: (a) a violation of the restated
certificate of incorporation or bylaws of the Company or its subsidiaries, (b) a
default or event that, with the notice or lapse of time, or both would
constitute a default, breach or violation of any material contracts of the
Company, (c) an event that would permit any person or entity to terminate any
material contract of the Company or to accelerate the maturity of any obligation
of the Company or its subsidiaries, (d) a violation or breach of any applicable
laws, or (e) a violation of any judicial order to which the Company or any of
its subsidiaries is a party.
(j) The Class B common stock conforms to the description thereof in all
material respects under the heading "Description of Capital Stock - Class B
Common Stock."
(k) The Company and each of its subsidiaries have full power (corporate and
other) to own or lease their respective properties and conduct their respective
businesses as described in the Registration Statement and the Prospectus or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus; and
the Company has full power (corporate and other) to enter into this Agreement
and to carry out all the terms and provisions hereof to be carried out by it.
(l) The issued shares of capital stock of bamboo Canada have been duly
authorized and are validly issued, fully paid and nonassessable and, are owned
beneficially and of record, by the Company free and clear of any security
interests, liens, encumbrances, equities or claims, except for 7,421,538 Series
C Convertible Preferred Shares of bamboo Canada, which convert at the option of
the holder thereof into 7,421,538 shares of Common Stock of the Company.
(m) The authorized, issued and outstanding capital stock of the Company is as
set forth in the Prospectus under the caption "Capitalization," and, after
giving effect to the offering will be as set forth under the column "Pro Forma
As Adjusted" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus or pursuant
to the exercise of options or warrants referred to in the Prospectus). All of
the issued shares of capital stock of the Company and its subsidiaries have been
duly authorized and validly issued and are fully paid and nonassessable; none of
the outstanding shares of capital stock of the Company or its subsidiaries was
issued in violation of the preemptive or other similar rights of any security
holder of the Company. The shares of issued and outstanding capital stock of the
Company and its subsidiaries have been issued in compliance, with all federal
and state securities laws, and Canadian laws; and no preemptive rights of, or
rights of refusal in favor of, stockholders exist with respect to the Common
Stock, or the issue and sale thereof, pursuant to the restated certificate of
incorporation or bylaws of the Company, and
there are no contractual or statutory preemptive rights that have not been
waived, rights of first refusal or rights of co-sale which exist with respect to
the issue and sale of the Common Stock; except as described in the Prospectus,
there are no outstanding options, warrants or other rights to purchase,
agreements to issue or other rights to convert any obligations into shares of
capital stock of the Company or any of its subsidiaries.
(n) The Firm Securities and the Option Securities have been duly authorized
and at the Firm Closing Date or the related Option Closing Date (as the case may
be), after payment therefor in accordance herewith, will be validly issued,
fully paid and nonassessable. No holders of outstanding shares of capital stock
of the Company are entitled as such to any preemptive or other rights to
subscribe for any of the Securities, and no holder of securities of the Company
has any right which has not been fully exercised or waived to require the
Company to register the offer or sale of any securities owned by such holder
under the Act in the public offering contemplated by this agreement.
(o) The capital stock of the Company and its subsidiaries conforms to the
description thereof contained in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus.
(p) Except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no outstanding (A)
securities or obligations of the Company or any of its subsidiaries convertible
into or exchangeable for any capital stock of the Company or any such
subsidiary, (B) warrants, rights or options to subscribe for or purchase from
the Company or any such subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (C) obligations of the
Company or any such subsidiary to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(q) The consolidated financial statements and schedules of the Company and its
consolidated subsidiaries included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the financial position of the Company and
its consolidated subsidiaries and the results of operations and changes in
financial condition as of the dates and periods therein specified. Such
financial statements and schedules have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved. The financial data set forth under the caption "Summary
Consolidated Financial Data," "Capitalization" and "Selected Consolidated
Financial Data" in the Prospectus (or, if the Prospectus is not in exis-
tence, the most recent Preliminary Prospectus) fairly present, on the basis
stated in the Prospectus (or such Preliminary Prospectus), the information
included therein.
(r) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), are
independent public accountants as required by the Act and the applicable rules
and regulations thereunder.
(s) The execution and delivery of this Agreement have been duly authorized by
the Company and this Agreement has been duly executed and delivered by the
Company, and is the valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(t) No legal or governmental proceedings are pending to which the Company or
any of its subsidiaries is a party or to which the property of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus), and
no such proceedings have been threatened against the Company or any of its
subsidiaries or with respect to any of their respective assets, technologies or
properties; and no contract or other document is required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) or filed as required.
(u) The issuance, offering and sale of the Securities to the Underwriters by
the Company pursuant to this Agreement, the compliance by the Company with the
other provisions of this Agreement and the consummation of the other
transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws and, if the registration statement filed with
respect to the Securities (as amended) is not effective under the Act as of the
time of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act, or (ii) conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of their respective
properties are bound, or the charter documents or by-laws of the Company or any
of its subsidi-
aries, or any statute or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator applicable to the
Company or any of its subsidiaries.
(v) Subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus, neither the Company nor any
of its subsidiaries has sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding and there has not been any Material
Adverse Change, or any development involving a prospective Material Adverse
Change.
(w) The Company has not, directly or indirectly, (i) taken any action designed
to cause or to result in, or that has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities or
(ii) since the filing of the Registration Statement (A) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(x) The Company has not distributed and, prior to the later of (i) the Closing
Date and (ii) the completion of the distribution of the Securities, will not
distribute any offering material in connection with the offering and sale of the
Securities other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or other materials, if any permitted by the Act.
(y) Subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), (1) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary course
of business; (2) the Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock; (3) the Company has not purchased any of the
outstanding capital stock of its subsidiaries, nor declared, paid or otherwise
made any dividend or distribution of any kind on such capital stock and (4)
there has not been any material change in the capital stock, short-term debt or
long-term debt of the Company and its consolidated subsidiaries,
except in each case as described in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
(z) The Company and each of its subsidiaries have good and marketable title in
fee simple to all items of real property and marketable title to all personal
property owned by each of them, in each case free and clear of any security
interests, liens, encumbrances, equities, claims and other defects, except such
as do not materially and adversely affect the value of such property and do not
interfere with the use made or proposed to be made of such property by the
Company or such subsidiary, and any real property and buildings held under lease
by the Company or any such subsidiary are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or such subsidiary, in each case except as described in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(aa) Except as described in the Prospectus, no labor dispute with the
employees of the Company or any of its subsidiaries exists or is threatened that
would result in a Material Adverse Change.
(bb) The Company and its subsidiaries own or possess, all material patents,
patent applications, trademarks, service marks, trade names, licenses,
copyrights and proprietary or other confidential information currently employed
by them in connection with their respective businesses, and neither the Company
nor any such subsidiary has received any notice of infringement of or conflict
with asserted rights of any third party with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Change.
(cc) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not cause a Material Adverse Change. The officers
and directors of the Company and bamboo Canada are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary for officers and directors liability
insurance of a public company and as would cover claims which could be
made in connection with the issuance of the Securities; and the Company has no
reason to believe that it will not be able to renew its existing directors and
officers liability insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to cover its
officers and directors.
(dd) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(ee) The Company and its subsidiaries possess all certificates, authorizations
and permits issued by the appropriate federal, state, provincial or foreign
regulatory authorities necessary to conduct their respective businesses, and
neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Change.
(ff) The Company will conduct its operations in a manner that will not subject
it to registration as an investment company under the Investment Company Act of
1940, as amended, and this transaction will not cause the Company to become an
investment company subject to registration under such Act.
(gg) The Company has filed all foreign, federal, state and local tax returns
that are required to be filed or has requested extensions thereof (except in any
case in which the failure so to file would not result in a Material Adverse
Change) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(hh) Neither the Company nor any of its subsidiaries is in violation of any
applicable federal, provincial or state law or regulation relating to
occupational safety and health or to the storage, handling or transportation of
hazardous or toxic materials and the Company and its subsidiaries have received
all permits, licenses or other approvals required of them under applicable
federal and state occupational
safety and health and environmental laws and regulations to conduct their
respective businesses, and the Company and each such subsidiary is in compliance
with all terms and conditions of any such permit, license or approval, except
any such violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals which would not, singly or in the
aggregate, result in a Material Adverse Change.
(ii) The statistical and market-related data included in the Registration
Statement and the Prospectus are derived from sources which the Company
reasonably and in good faith believes to be accurate, reasonable and reliable;
such data agrees in all material respects with the sources from which they were
derived, and to the Company's knowledge, such data reasonably describes the
markets or industries in which the Company conducts or proposes to conduct its
business.
(jj) Except for the shares of capital stock of each of the subsidiaries owned
by the Company and such subsidiaries, neither the Company nor any such
subsidiary owns any shares of stock or any other equity securities of any
corporation or has any equity interest in any firm, partnership, association or
other entity, except as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus).
(kk) The Shares have been duly authorized for listing on the Nasdaq National
Market, subject to official notice of issuance.
(ll) There are no holders of securities of the Company, who, by reason of the
filing of the Registration Statement, have the right (and have not waived such
right) to request the Company to register under the Act, or to include in the
Registration Statement, securities held by them.
(mm) The Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (3) access to assets is
permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(nn) No default exists, and no event has occurred which, with notice or lapse
of time or both, would constitute a default in the due performance and
observance of any term, covenant or condition of any indenture, mortgage, deed
of trust, lease or other material agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties is bound.
(oo) Except as disclosed in the Prospectus or except as not reasonably
required to be disclosed in the Prospectus, there are no outstanding loans,
advances, or guarantees of indebtedness by the Company to or for the benefit of
any of the executive officers or directors of the Company or any of the members
of the families of any of them.
(pp) The execution and delivery of the Amendment to Joint Services Agreement,
Warrant and Option Agreement, entered into between the Company, RealSelect, Inc.
and XxxxXxxxx.xxx, Inc. has been duly authorized by the Company, and is a valid
and binding agreement of each party, enforceable against each party in
accordance with its terms canceling and terminating the terms of the Option
Agreement previously entered into between the Company and RealSelect, Inc.
(qq) Each certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
3. Representations and Warranties of the Selling Securityholders. Each
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Selling Securityholder represents and warrants to, and agrees with, each of the
several Underwriters that:
(a) Such Selling Securityholder has full power to enter into this Agreement
and to sell, assign, transfer and deliver to the Underwriters the Securities to
be sold by such Selling Securityholder hereunder in accordance with the terms of
this Agreement; and this Agreement has been duly executed and delivered by such
Selling Securityholder.
(b) Such Selling Securityholder has duly executed and delivered a power of
attorney and custody agreement (with respect to such Selling Securityholder, the
"Power-of-Attorney" and the "Custody Agreement", respectively), each in the form
heretofore delivered to the Representatives, appointing Xxxxx X. XxXxxxx,
Xxxxxxx X. XxXxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxx and Xxxxx Xxxxxx as such
Selling Securityholder's attorney-in-fact (the "Attorney-in-Fact") with
authority to execute,
deliver and perform this Agreement on behalf of such Selling Securityholder and
appointing Norwest Bank Minnesota, N.A., as custodian thereunder (the
"Custodian"). Certificates in negotiable form, endorsed in blank or accompanied
by blank stock powers duly executed, with signatures appropriately guaranteed,
representing the Securities to be sold by such Selling Securityholder hereunder
have been deposited with the Custodian pursuant to the Custody Agreement for the
purpose of delivery pursuant to this Agreement. Such Selling Securityholder has
full power to enter into the Custody Agreement and the Power-of-Attorney and to
perform its obligations under the Custody Agreement. The Custody Agreement and
the Power-of-Attorney have been duly executed and delivered by such Selling
Securityholder and, assuming due authorization, execution and delivery by the
Custodian, are the legal, valid, binding and enforceable instruments of such
Selling Securityholder. Such Selling Securityholder agrees that each of the
Securities represented by the certificates on deposit with the Custodian is
subject to the interests of the Underwriters hereunder, that the arrangements
made for such custody, the appointment of the Attorney-in-Fact and the right,
power and authority of the Attorney-in-Fact to execute and deliver this
Agreement, to agree on the price at which the Securities (including such Selling
Securityholder's Securities) are to be sold to the Underwriters, and to carry
out the terms of this Agreement, are to that extent irrevocable and that the
obligations of such Selling Securityholder hereunder shall not be terminated,
except as provided in this Agreement or the Custody Agreement, by any act of
such Selling Securityholder, by operation of law or otherwise, whether in the
case of any individual Selling Securityholder by the death or incapacity of such
Selling Securityholder, in the case of a trust or estate by the death of the
trustee or trustees or the executor or executors or the termination of such
trust or estate, or in the case of a corporate or partnership Selling
Securityholder by its liquidation or dissolution or by the occurrence of any
other event. If any individual Selling Securityholder, trustee or executor
should die or become incapacitated or any such trust should be terminated, or if
any corporate or partnership Selling Securityholder shall liquidate or dissolve,
or if any other event should occur, before the delivery of such Securities
hereunder, the certificates for such Securities deposited with the Custodian
shall be delivered by the Custodian in accordance with the respective terms and
conditions of this Agreement as if such death, incapacity, termination,
liquidation or dissolution or other event had not occurred, regardless of
whether or not the Custodian or the Attorney-in-Fact shall have received notice
thereof.
(c) Such Selling Securityholder is the lawful owner of the Securities to be
sold by such Selling Securityholder hereunder and upon sale and delivery of, and
payment for, such Securities, as provided herein, such Selling Securityholder
will convey good and marketable title to such Securities, free and clear of any
security interests, liens, encumbrances, equities, claims or other defects.
(d) Such Selling Securityholder has not, directly or indirectly, (i) taken
any action designed to cause or result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company (except for
the sale of Securities by the Selling Securityholders under this Agreement).
(e) To the extent that any statements or omissions are made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by such Selling Securityholder specifically
for use therein, such Preliminary Prospectus did, and the Registration Statement
and the Prospectus and any amendments or supplements thereto, when they become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act and the respective rules
and regulations of the Commission thereunder and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading. Such Selling
Securityholder has reviewed the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and the Registration
Statement, and the information regarding such Selling Securityholder set forth
therein under the caption "Principal and Selling Securityholders" is complete
and accurate.
(f) The sale by such Selling Securityholder of Securities pursuant hereto is
not prompted by any adverse information concerning the Company that is not set
forth in the Registration Statement or the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus).
(g) The sale of the Securities to the Underwriters by such Selling
Securityholder pursuant to this Agreement, the compliance by such Selling
Securityholder with the other provisions of this Agreement, the Custody
Agreement and the consummation of the other transactions herein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the registration statement filed with respect to the
Securities (as amended) is not effective under the Act as of the time of
execution hereof, such as may be required (and shall be obtained as provided in
this Agreement) under the Act, or (ii) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default under
any indenture, mortgage, deed of trust, lease or other material agreement or
instrument to which such Selling Securityholder is a party or by which such
Selling Securityholder or any of such Selling Securityholder's properties are
bound, or any statute or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator applicable to such
Selling Security holder.
(h) Such Selling Securityholder will deliver to the Representatives no later
than the third business day prior to the Option Closing Date a properly
completed and executed U.S. Treasury Department Form W-9 (or Form W-8 for non-
U.S. residents).
4. Purchase, Sale and Delivery of the Securities.
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(a) On the basis of the representations, warranties, agreements and covenants
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company, at
a purchase price of $_____ per share, the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule 1 hereto. One or more
certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company to the Representatives
for the respective accounts of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor by wire transfer in same-day
funds (the "Wired Funds") to the account of the Company. Such delivery of and
payment for the Firm Securities shall be made at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx XXX, Xxxx Xxxx, Xxxxxxxxxx 00000, at 9:30 A.M., New York
time, on __________, 1999, or at such other place, time or date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 11 hereof, such time and date of delivery against
payment being herein referred to as the "Firm Closing Date". The Company will
make such certificate or certificates for the Firm Securities available for
checking and packaging by the Representatives at the offices in New York, New
York of the Company's transfer agent or registrar or of Prudential Securities
Incorporated at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Securities as contemplated by the Prospectus,
the Company and the Selling Securityholders hereby grant to the several
Underwriters an option to purchase, severally and not jointly, the Option
Securities. The purchase price to be paid for any Option Securities shall be the
same price per share as the price per share for the Firm Securities set forth
above in paragraph (a) of this Section 4. The option granted hereby may be
exercised as to all or any part of the Option Securities from time to time
within (thirty) days after the date of the Prospectus (or, if such 30th day
shall be a Saturday or Sunday or a holiday, on the next business day thereafter
when the New York Stock Exchange is open for trading). The Underwriters shall
not be under any obligation to purchase any of the Option Securities prior to
the exercise of such option. The Representatives may from time to time exercise
the option granted hereby by giving notice in writing or by telephone (confirmed
in writing) to the Company and the Selling Securityholders setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment for
such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and Company
may agree upon or as the Representatives may determine pursuant to Section 11
hereof, is herein called the "Option Closing Date" with respect to such Option
Securities. The obligation of each Underwriter to the Company and each of the
Selling Securityholders shall be to purchase from the Company and the Selling
Securityholders that number of shares of the Option Securities which represents
the same proportion of the total number of shares of the Option Securities to be
sold by each of the Company and the Selling Securityholders pursuant to this
Agreement as the number of shares of the Option Securities set forth opposite
the name of such Underwriter in Schedule I hereto represents of the total number
of shares of Option Securities to be purchased by all Underwriters pursuant to
this Agreement, as adjusted by you in such manner as you deem advisable to avoid
fractional shares. If the option is exercised as to a portion of the Option
Securities, the obligation of each Underwriter shall be to purchase such Option
Securities from the Company, and any remaining portion shall be purchased from
the Selling Securityholders in that number of shares which represents the same
proportion of the total number of shares of the Option Securities to be sold by
the Selling Securityholders pursuant to this Agreement as the number of shares
of the Option Securities set forth opposite the name of each such Selling
Securityholder in Schedule 3. In entering into this Agreement, each Underwriter
is contracting severally and not jointly; except as provided in Section 11, the
agreement of each Underwriter is to purchase only the respective number of
shares of the Option Securities as
specified in Schedule 1. If the option is exercised as to all or any portion of
the Option Securities, one or more certificates in definitive form for such
Option Securities, and payment therefor, shall be delivered on the related
Option Closing Date in the manner, and upon the terms and conditions, set forth
in paragraph (a) of this Section 4, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) Each of the Company and the Selling Securityholders hereby acknowledges
that the wire transfer by or on behalf of the Underwriters of the purchase price
for any Shares does not constitute closing of a purchase and sale of the Shares.
Only execution and delivery of a receipt for Shares by the Underwriters
indicates completion of the closing of a purchase of the Shares from the Company
and the Selling Securityholders . Furthermore, in the event that the
Underwriters wire funds to the Company or the Selling Securityholders prior to
the completion of the closing of a purchase of Shares, each of the Company and
the Selling Securityholders hereby acknowledges that until the Underwriters
execute and deliver a receipt for the Shares, by facsimile or otherwise, the
Company or the Selling Securityholder, as the case may be, will not be entitled
to the Wired Funds and shall return the Wired Funds to the Underwriters as soon
as practicable (by wire transfer of same-day funds) upon demand. In the event
that the closing of a purchase of Shares is not completed and the Wired Funds
are not returned by the Company or the Selling Securityholders to the
Underwriters on the same day the Wired Funds were received by such party, such
party agrees to pay to the Underwriters in respect of each day the Wired Funds
are not returned by it, in same-day funds, interest on the amount of such Wired
Funds in an amount representing the Underwriters' cost of financing as
reasonably determined by Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as one of the
Representatives, may (but shall not be obligated to) make payment on behalf of
any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such Underwriter
or Underwriters from any of its or their obligations hereunder.
5. Offering by the Underwriters. Upon your authorization of the release of
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the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
6. Covenants of the Company. The Company covenants and agrees with each of the
-------------------------
Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required, the
Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Act. During any time when a prospectus relating to the Securities is required to
be delivered under the Act, the Company (i) will comply with all requirements
imposed upon it by the Act and the rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions hereof and of the
Prospectus, as then amended or supplemented, and (ii) will not file with the
Commission the prospectus, Term Sheet or the amendment referred to in the second
sentence of Section 2(a) hereof, any amendment or supplement to such Prospectus,
Term Sheet or any amendment to the Registration Statement or any Rule 462(b)
Registration Statement of which the Representatives previously have been advised
and furnished with a copy for a reasonable period of time prior to the proposed
filing and as to which filing the Representatives shall not have given their
consent. The Company will prepare and file with the Commission, in accordance
with the rules and regulations of the Commission, promptly upon request by the
Representatives or counsel for the Underwriters, any amendments to the
Registration Statement or amendments or supplements to the Prospectus that may
be necessary or advisable in connection with the distribution of the Securities
by the several Underwriters, and will use its best efforts to cause any such
amendment to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the Representatives,
promptly after receiving notice thereof, of the time when the Registration
Statement or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and will
provide evidence satisfactory to the Representatives of each such filing or
effectiveness.
(b) The Company will advise the Representatives, promptly after receiving
notice or obtaining knowledge thereof, of (i) the issuance by the Commission of
any stop order suspending the effectiveness of the Original Registration
Statement or any Rule 462(b) Registration Statement or any amendment thereto or
any order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, (ii) the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, (iii)
the institution, threatening or contemplation of any proceeding for any such
purpose or (iv) any request made by the Commission for amending the Original
Registration Statement or any Rule 462(b) Registration Statement, for amending
or supplementing the Prospectus or for additional information. The Company will
use its best efforts to prevent the issuance
of any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will arrange for the qualification of the Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
the Representatives may designate and will continue such qualifications in
effect for as long as may be necessary to complete the distribution of the
Securities, provided, however, that in connection therewith the Company shall
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not be required to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the Act
or (ii) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the rules or
regulations of the Commission thereunder, the Company will promptly notify the
Representatives thereof and, subject to Section 6(a) hereof, will prepare and
file with the Commission, at the Company's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the Representatives and
to counsel for the Underwriters a conformed copy of the registration statement
originally filed with respect to the Securities and each amendment thereto (in
each case including exhibits thereto) or any Rule 462(b) Registration Statement,
certified by the Secretary or an Assistant Secretary of the Company to be true
and complete copies thereof as filed with the Commission by electronic
transmission, (ii) to each other Underwriter, a conformed copy of such
registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto) and (iii) so long as a
prospectus relating to the Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto as the Representatives may reasonably request; without
limiting the application of clause (iii) of this sentence, the Company, not
later than (A) 6:00 P.M., New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to 10:00
A.M., New York City time, on such date or (B) 2:00 P.M., New York City time, on
the business day following the date of determination of the public offering
price, if such determination occurred after 10:00 A.M., New York City time, on
such date,
will deliver to the Underwriters, without charge, as many copies of the
Prospectus and any amendment or supplement thereto as the Representatives may
reasonably request for purposes of confirming orders that are expected to settle
on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally available to its
securityholders and to the Representatives a consolidated earnings statement of
the Company and its subsidiaries that satisfies the provisions of Section 11(a)
of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the Securities
as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of any option to purchase or other sale or
disposition) of any shares of Common Stock or any securities convertible into,
or exchangeable or exercisable for shares of Common Stock for a period of 180
days from the date of the Prospectus, except pursuant to this Agreement and
except for issuances pursuant to the existing employee benefit plans or stock
option plans of the Company outstanding on the date hereof or pursuant to the
terms of convertible securities of the Company or its subsidiaries outstanding
on the date hereof, in each case as described in the Prospectus.
(i) The Company will not, directly or indirectly, (i) take any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) The Company will obtain the agreements described in 9(g) hereof prior to
the Firm Closing Date.
(k) If at any time during the 25-day period after the Registration Statement
becomes effective or the period prior to the Option Closing Date, any rumor,
publication or event relating to or affecting the Company shall occur as a
result of which in your opinion the market price of the Common Stock has been or
is likely to be materially affected (regardless of whether such rumor,
publication or event neces-
sitates a supplement to or amendment of the Prospectus), the Company will, after
notice from you advising the Company to the effect set forth above, forthwith
prepare, consult with you concerning the substance of, and disseminate a press
release or other public statement, reasonably satisfactory to you, responding to
or commenting on such rumor, publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company shall both file
a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) and pay the applicable fees in accordance with Rule 111 promulgated under
the Act by the earlier of (i) 10:00 P.M. Eastern time on the date of this
Agreement and (ii) the time confirmations are sent or given, as specified by
Rule 462(b)(2).
(m) The Company will cause the Securities to be duly included for quotation
on The Nasdaq Stock Market's National Market (the "Nasdaq National Market")
prior to the Firm Closing Date. The Company will ensure that the Securities
remain included for quotation on the Nasdaq National Market following the Firm
Closing Date.
(n) The Company will promptly redeem each share of Class B common stock prior
to and upon the effectiveness of the conversion of each of the Series C
Convertible Preferred Shares of bamboo Canada into shares of Common Stock of the
Company in accordance with the terms of the Conversion and Pairing Agreement and
their respective charters.
7. Covenants of the Selling Securityholders. Each of the Selling
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Securityholders covenants and agrees with each of the Underwriters that:
(a) Each Selling Securityholder will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, offer, sell, offer
to sell, contract to sell, pledge, grant any option to purchase or otherwise
sell or dispose (or announce any offer, sale, offer of sale, contract of sale,
pledge, grant of any option to purchase or other sale or disposition) of any
Securities legally or beneficially owned by such Selling Securityholder or any
securities convertible into, or exchangeable or exercisable for, Securities for
a period of 180 days after the date hereof.
(b) Such Selling Securityholder will not, directly or indirectly, (i) take
any action designed to cause or result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities or (ii)
(A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company (except for the sale of Securities by the Selling Securityholders
under this Agreement).
8. Expenses. The Company will pay all costs and expenses incident to the
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performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 13 hereof, including all costs and expenses incident to (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriters
relating thereto, (vi) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities and the fees
of underwriter's counsel incurred in connection with the review of the Offering
by the NASD, (vii) any quotation of the Securities on the Nasdaq National
Market, (viii) any meetings with prospective investors in the Securities (other
than as shall have been specifically approved by the Representatives to be paid
for by the Underwriters) and (ix) advertising relating to the offering of the
Securities (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters).
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 9 hereof is not satisfied, because this Agreement is terminated pursuant
to Section 13 hereof or because of any failure, refusal or inability on the part
of the Company to perform all obligations and satisfy all conditions on its part
to be performed or satisfied hereunder other than by reason of a default by any
of the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including counsel fees and disbursements)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. The Company shall not in any event be liable to any
of the Underwriters for the loss of anticipated profits from the transactions
covered by this Agreement.
9. Conditions of the Underwriters' Obligations. The obligations of the
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several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company contained herein as of the date
hereof and as of the Firm Closing Date, as if made on and as of the Firm Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto filed
prior to the Firm Closing Date has not been declared effective as of the time of
execution hereof, the Original Registration Statement or such amendment and, if
the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have been declared effective not later than the earlier of (i)
11:00 A.M., New York time, on the date on which the amendment to the
registration statement originally filed with respect to the Securities or to the
Registration Statement, as the case may be, containing information regarding the
initial public offering price of the Securities has been filed with the
Commission and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original Registration Statement, or such
later time and date as shall have been consented to in writing by the
Representatives; if required, the Prospectus or any Term Sheet that constitutes
a part thereof and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required by Rules
434 and 424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Wilson, Sonsini, Xxxxxxxx & Xxxxxx, a professional corporation,
counsel for the Company, to the effect that:
(i) the Company and each of its subsidiaries listed in Exhibit 22 to
the Registration Statement (the "Subsidiaries") have been duly
incorporated or amalgamated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation or amalgamation and are duly qualified to transact business
as foreign corporations and are in good standing un-
der the laws of all other jurisdictions where the ownership or leasing of
their respective properties or the conduct of their respective businesses
requires such qualification, except where the failure to be so qualified
would not result in a Material Adverse Change.
(ii) the Conversion and Pairing Agreement, entered into between the
Company and bamboo Canada (the "Conversion and Pairing Agreement"), has
been duly authorized, executed and delivered by (the Company and is a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms and conforms to the description
thereof in the Prospectus;
(iii) the Class B common stock conforms to the description thereof in
all material respects under the heading "Description of Capital Stock -
Class B Common Stock; "
(iv) the Company and each of its subsidiaries have full power
(corporate and other) to own or lease their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus; and the Company has full power
(corporate and other) to enter into this Agreement and to consummate the
transactions contemplated thereby;
(v) the authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under the caption
"Capitalization," and, after giving effect to the offering will be set
forth under the column "Pro Forma As Adjusted" under the caption
"Capitalization" (except for subsequent issuances, if any pursuant to
this Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectus or pursuant to the exercise of
options referred to in the Prospectus). All of the issued shares of
capital stock of the Company and its subsidiaries have been duly
authorized and validly issued and are fully paid and nonassessable; to
our knowledge none of the outstanding shares of capital stock of the
Company or its subsidiaries was issued in violation of the preemptive or
other similar rights of any security holder of the Company. To our
knowledge, no preemptive rights of, or rights of refusal in favor of,
stockholders exist with respect to the Common Stock, or the issue and
sale thereof, pursuant to the restated certificate of incorporation or
bylaws of the Company, and there are no contractual or statutory
preemptive rights that have not been waived, rights of first refusal or
rights of co-sale which exist with respect to the issue and sale of the
Common Stock; except as described in the Prospectus, there are no
outstanding options, warrants or other rights to purchase, agreements to
issue or other rights to convert any obligations into shares of capital
stock of the Company or any of its subsidiaries;
(vi) the Firm Securities and the Option Securities have been duly
authorized and at the Firm Closing Date or the related Option Closing
Date (as the case may be), after payment therefor in accordance herewith,
will be validly issued, fully paid and nonassessable. To our knowledge,
no holders of outstanding shares of capital stock of the Company are
entitled as such to any preemptive or other rights to subscribe for any
of the Securities, and other than as described in the Prospectus no
holder of securities of the Company has any right (other than rights
which have been waived) to require the Company to register the offer or
sale of any securities owned by such holder under the Act in the public
offering contemplated by this agreement;
(vii) the statements set forth (A) under the heading "Description of
Capital Stock," "Certain Transactions," and "Management" in the
Prospectus and (B) in the Registration Statement under Item 14, insofar
as such statements constitute matters of law, summaries of legal matters,
the Company's charters and by-laws or legal proceedings, or legal
conclusions, have been reviewed by us and are complete in all material
respects;
(viii) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the Company;
(ix) (A) to our knowledge, no legal or governmental proceedings are
pending to which the Company or any of the subsidiaries is a party or to
which the property of the Company or any of the subsidiaries is subject,
which if determined adversely to the Company or its subsidiary would
result in a Material Adverse Change and, to our knowledge of such
counsel, no such proceedings have been threatened against the Company or
any of the subsidiaries or with re-
spect to any of their respective properties and (B) we do not know of any
contract or other document required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein or filed as
required;
(x) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have
been obtained and such as may be required under state securities or blue
sky laws, or (B) conflict with or result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
agreement included as an exhibit to the registration statement, or the
charter documents or by-laws of the Company or any of the subsidiaries,
or any statute or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator known to such
counsel and applicable to the Company or subsidiaries;
(xi) the Registration Statement is effective under the Act; any
required filing of the Prospectus, or any Term Sheet that constitutes a
part thereof, pursuant to Rules 434 and 424(b) has been made in the
manner and within the time period required by Rules 434 and 424(b); and
to our knowledge no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted;
(xii) the Registration Statement originally filed with respect to the
Securities and each amendment thereto, any Rule 462(b) Registration
Statement and the Prospectus (in each case, other than the financial
statements and other financial information contained therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the rules and
regulations of the Commission thereunder; and
(xiii) if the Company elects to rely on Rule 434, the Prospectus is not
"materially different", as such term is used in Rule
434, from the prospectus included in the Registration Statement at the
time of its effectiveness or an effective post-effective amendment
thereto (including such information that is permitted to be omitted
pursuant to Rule 430A).
Such counsel shall also state that they have no reason to believe that the
Registration Statement, as of its effective date and the date of such opinion,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date or the date of
such opinion, included or includes any untrue statement of a material fact or
omitted 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.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and as to matters involving the
application of laws of any jurisdiction other than the State of Delaware or the
United States, to the extent satisfactory in form and scope to counsel for the
Underwriters upon the opinion of Beard, Winter, Canadian counsel. The foregoing
opinion shall also state that the Underwriters are justified in relying upon
such opinion of Canadian counsel, and copies of such opinion shall be delivered
to the Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Beard, Winter, Canadian counsel for the Company, to the effect
that:
(i) the Amalgamation Agreement, dated as of December 31, 0000 xxxxxxx
Xxxxxxxxx Xxxxxxxxxxx, xx Xxxxxxx, Xxxxxx corporation, and a subsidiary
of the Company, Jutvision Canada, Inc., now known as xxxxxx.xxx Canada,
Inc. ("bamboo Canada"), an Ontario, Canada corporation (the "Amalgamation
Agreement"), was appended to and formed part of the Certificate of
Amalgamation dated January 1, 1999 which caused the amalgamation of
Jutvision Corporation, with and into bamboo Canada. The Amalgamation
Agreement has been duly authorized, executed and delivered by each of
Jutvision Corporation and bamboo Canada and is a valid and
binding agreement of Jutvision Corporation and bamboo Canada, enforceable
against each in accordance with its terms and conforms to the description
thereof in the Prospectus;
(ii) bamboo Canada and Jutvision Corporation had all requisite
corporate power and corporate authority to execute and deliver the
Amalgamation Agreement and to consummate the transactions contemplated
thereby;
(iii) all consents, approvals and authorizations of and filings with any
governmental entity with respect to any applicable laws required on the
part of the Company or any of its subsidiaries in connection with the
valid execution and delivery of the Amalgamation Agreement, or the
consummation of the transaction contemplated thereby, have been obtained
or made;
(iv) neither the performance, execution and delivery of the
Amalgamation Agreement, nor the consummation of the transactions
contemplated thereby, nor compliance by the Company and its subsidiaries
with any of the provisions thereof, will result in any of the following:
(a) a violation of the restated certificate of incorporation or bylaws of
the Company or its subsidiaries, (b) a default or event that, with the
notice or lapse of time, or both would constitute a default, breach or
violation of any material contracts, (c) an event that would permit any
person or entity to terminate any material contract or to accelerate the
maturity of any obligation of the Company or its subsidiaries, (d) a
violation or breach of any applicable laws, or (e) a violation of any
judicial order to which the Company or any of its subsidiaries are a
party;
(v) the issued shares of capital stock of bamboo Canada have been duly
authorized and validly issued, are fully paid and nonassessable and, are
owned beneficially and of record, by the Company free and clear of any
security interests, liens, encumbrances, equities or claims, except for
7,421,538 of Series C Convertible Preferred Shares of bamboo Canada,
which convert at the option of the holder thereof into 7,421,538 shares
of Common Stock of the Company;
Such counsel shall also state that they have no reason to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted 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.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(d) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxx Xxxx, XX 00000, counsel for the Underwriters, with
respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters. In rendering such opinion, such counsel
may rely as to all matters of law upon the opinion of Canadian counsel referred
to in paragraph (b) above.
(e) The Selling Securityholders shall have furnished to the Representatives
the opinion of Wilson, Sonsini, Xxxxxxxx and Xxxxxx, a professional corporation,
counsel for the Selling Securityholders, dated the Closing Date, to the effect
that:
(i) such Selling Securityholder has full power to enter into this
Agreement, the Custody Agreement and the Power-of-Attorney and to sell,
transfer and deliver the Securities being sold by such Selling
Securityholder hereunder in the manner provided in this Agreement and to
perform its obligations under the Custody Agreement; this Agreement, the
Custody Agreement and the Power-of-Attorney have been duly executed and
delivered by each Selling Securityholder; assuming due authorization,
execution and delivery by the Custodian, the Custody Agreement and the
Power-of-Attorney are the legal, valid, binding and enforceable
instruments of such Selling Securityholder, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(ii) the delivery by each Selling Securityholder to the several
Underwriters of certificates for the Securities being sold hereunder by
such Selling Securityholder against payment therefor as provided herein,
will convey good and valid title to such Securities to the several
Underwriters, free and clear of all encumbrances, equities or claims;
(iii) to our knowledge, the sale of the Securities to the Underwriters
by such Selling Securityholder pursuant to this Agreement, the compliance
by such Selling Securityholder with the other provisions of this
Agreement, the Custody Agreement and the consummation of the other
transactions herein contemplated do not (i) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained and such as may
be required under state securities or blue sky laws, or (ii) conflict
with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under any indenture, mortgage,
deed of trust, lease or other agreement or instrument known to us to
which such Selling Securityholder is a party or by which such Selling
Securityholder or any of such Selling Securityholder's properties are
bound, or any statute or any judgment, decree, order, rule or regulation
of any court or other governmental authority or any arbitrator applicable
to such Selling Securityholder.
In rendering such opinion, such counsel may rely, as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Company and public officials and, as to matters involving the application of
laws of any jurisdiction other than the State of Delaware or the United States,
to the extent satisfactory in form and scope to counsel for the Underwriters,
upon the opinion of Beard, Winter, Canadian counsel. The foregoing opinion shall
also state that the Underwriters are justified in relying upon such opinion of
Canadian counsel, and copies of such opinion shall be delivered to the
Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (e) shall include any amendment or supplement thereto at the date of
such opinion.
(f) The Representatives shall have received from PricewaterhouseCoopers LLP a
letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company and
its consolidated subsidiaries within the meaning of the Act and the
applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial statements
and schedules examined by them and included in the Registration Statement
and the Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations;
(iii) on the basis of a reading of the latest available interim
unaudited consolidated financial statements of the Company and its
consolidated subsidiaries, carrying out certain specified procedures
(which do not constitute an examination made in accordance with generally
accepted auditing standards) that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph
(iii), a reading of the minute books of the shareholders, the board of
directors and any committees thereof of the Company and each of its
consolidated subsidiaries, and inquiries of certain officials of the
Company and its consolidated subsidiaries who have responsibility for
financial and accounting matters, nothing came to their attention that
caused them to believe that:
(iv) the unaudited consolidated financial statements of the Company and
its consolidated subsidiaries included in the Registration Statement and
the Prospectus do not comply in form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations thereunder or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited consolidated financial statements
included in the Registration Statement and the Prospectus;
(v) at a specific date not more than five business days prior to the
date of such letter, there were any changes in the capital stock or long-
term debt of the Company and its consolidated subsidiaries or any
decreases in net current assets or stockholders' equity of the Company
and its consolidated subsidiaries, in each case compared with amounts
shown on the June 30, 1999 unaudited consolidated balance sheet included
in the Registration Statement and the
Prospectus, or for the period from July 1, 1999 to __________________;
(vi) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting
records of the Company and its consolidated subsidiaries and are included
in the Registration Statement and the Prospectus under the captions
"Summary Consolidated Financial Date," "Capitalization," "Selected
Financial Data," and "Management's Discussion and Analysis of Financial
Condition and Results of Operations," and in Exhibit 11 to the
Registration Statement, and have compared such amounts, percentages and
financial information with such records of the Company and its
consolidated subsidiaries and with information derived from such records
and have found them to be in agreement, excluding any questions of legal
interpretation; and
(vii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on the unaudited financial statements
included in the Registration Statement.
In the event that the letters referred to above set forth any such changes,
decreases or increases, it shall be a further condition to the obligations of
the Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(g) The Representatives shall have received a certificate, dated the Firm
Closing Date, from Xxxxxxx X. XxXxxxx and Xxxxxxx X. Xxxxxx of the Company to
the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing
Date; the Registration Statement as of its date, as of the time of its
effectiveness and as of the Firm Closing Date, as amended as of the Firm
Closing Date, does not include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
not misleading, and the Prospectus as of its date and as of the Firm
Closing Date, as amended or supplemented as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and the Company has performed all covenants and agreements
and satisfied all conditions on its part to be performed or satisfied at
or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto has been issued, and no proceedings
for that purpose have been instituted or threatened or, to the best of
the Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the
Company nor any of its subsidiaries has sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding, and there has not been any material adverse change, or any
development involving a prospective Material Adverse Change.
(h) The Representatives shall have received a certificate from each Selling
Securityholder, signed by such Selling Securityholder, dated the Option Closing
Date, to the effect that:
(i) the representations and warranties of such Selling Securityholder
in this Agreement are true and correct as if made on and as of the
Closing Date;
(ii) to the extent that any statements or omissions are made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by such Selling
Securityholder specifically for use therein, the Registration Statement,
as amended as of the Closing Date, does not include any untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein not misleading, and the Prospectus, as amended or
supplemented as of the Closing Date, does not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(iii) such Selling Securityholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior to the
Closing Date.
(i) The Representative shall have received from each person who is a director
or officer of the Company or who owns any securities of the Company or its
subsidiaries an agreement to the effect that such person will not, directly or
indirectly, without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any option to purchase or other sale or disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable or exercisable
for, shares of Common Stock of itself or any subsidiary or file any registration
statement under the 1933 Act with respect to any of the foregoing, except for
filing a Registration Statement on Form S-8 to register shares of Common Stock
for issuance under the Company stock option plan, for a period of 180 days from
the date of the Prospectus, except pursuant to this Agreement and except for
issuances pursuant to the existing employee benefit plans or stock option plans
of the Company outstanding on the date hereof or pursuant to the terms of
convertible securities of the Company outstanding on the date hereof, in each
case pursuant to the plans described in the Prospectus.
(j) On or before the Firm Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
(k) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading on the Nasdaq National Market.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
10. Indemnification and Contribution.
---------------------------------
(a) The Company and each Selling Securityholder, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Securities Exchange Act of 1934 (the "Exchange Act") against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under state law,
common law, the Exchange Act, the Act, Canadian law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company or a Principal Selling Securityholder in Section 2 or the Selling
Security holders in Section 3 of this Agreement; provided, however, that
no indemnification agreement is made by the Selling Securityholders other
than the Principal Selling Securityholders with respect to statements
made in Section 2;
(ii) any untrue statement or alleged untrue statement of any material
fact contained in (A) the Registration Statement or any amendment or
supplement thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto or (B) any application or other document,
or any amendment or supplement thereto, executed by the Company or a
Selling Securityholder or based upon written information furnished by or
on behalf of the Com-
pany or a Selling Securityholder filed in any jurisdiction (foreign or
domestic) in order to qualify the Securities under the securities or blue
sky laws thereof or filed with the Commission or any securities
association or securities exchange (each a "Application");
(iii) the omission or alleged omission to state in the Registration
Statement or any amendment or supplement thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
any Application a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(iv) any untrue statement or alleged untrue statement of any material
fact contained in any audio or visual materials provided by the Company
or based upon written information furnished by or on behalf of the
Company, including, without limitation, slides, videos, films, tape
recordings, used in connection with the marketing of the Securities,
including, without limitation, statements communicated to securities
analysts employed by the Underwriters; or
(v) the Company's directed share program.
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company and each
-----------------
Selling Securityholder will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and provided, further, that the Company and each
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Selling Securityholder will not be liable to any Underwriter or any person
controlling such Underwriter with respect to any such untrue statement or
omission made in any Preliminary Prospectus that is corrected in the Prospectus
(or any amendment or supplement thereto) if the person asserting any such loss,
claim, damage or liability purchased Securities from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented) at or
prior to the written confirmation of
the sale of such Securities to such person in any case where such delivery of
the Prospectus (as amended or supplemented) is required by the Act and it shall
have been determined by a final judgment of a court of competent jurisdiction
that any Underwriter or any person controlling such Underwriter would not have
incurred such loss, claim, damage or liability had the Prospectus (as amended or
supplemented) been delivered or sent, unless such failure to deliver the
Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with Section 6(d) and (e) of this Agreement. This indemnity agreement
will be in addition to any liability which the Company and the Selling
Securityholder may otherwise have. Neither the Company nor any Selling
Securityholder will, without the prior written consent of the Representatives
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not any such Underwriter or any person who
controls any such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement, each Selling Securityholder and each person, if any, who
controls the Company or such Selling Securityholder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which the Company or any such director,
officer or controlling person of the Company or such Selling Securityholder may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or any Application or (ii) the omission or the alleged omission to state therein
a material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person or such Selling Securi-
tyholder in connection with investigating or defending any such loss, claim,
damage, liability or any action in respect thereof. This indemnity agreement
will be in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 10 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 10, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 10. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
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the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 10 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 10, representing the indemnified parties under
such paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
set-
tlement of such action effected by such indemnified party without the consent of
the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 10 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Securities or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the parties' relative intents,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in the
circumstances. The Company and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section II (f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among
Underwriters shall be governed by the provisions of the Prudential Securities
Incorporated Master Agreement Among Underwriters. For purposes of this paragraph
(d), each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
11. Default of Underwriters. If one or more Underwriters default in their
-----------------------
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 12 hereof. In the event of any default by one or more Underwriters
as described in this Section 11, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 4 hereof for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 11. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
12. Survival. The respective representations, warranties, agreements,
--------
covenants, indemnities and other statements of the Company, its officers and the
several Un-
derwriters set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Company, any of
its officers or directors, any Underwriter or any controlling person referred to
in Section 10 hereof and (ii) delivery of and payment for the Securities. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 2, 6,7 and 10 hereof shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement.
13. Termination.
-----------
(a) The Agreement may be terminated with respect to the Firm Securities or
any Option Securities in the sole discretion of the Representatives by notice to
the Company given prior to the Firm Closing Date or the related Option Closing
Date, respectively, in the event that the Company shall have failed, refused or
been unable to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder at or prior thereto or, if at or prior to
the Firm Closing Date or such Option Closing Date, respectively,
(i) the Company or any of its subsidiaries shall have, in the sole
judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any material adverse change, or any
development involving a prospective material adverse change (including
without limitation a change in management or control of the Company), in
the condition (financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries;
(ii) trading in the Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities
generally on the New York Stock Exchange or Nasdaq National Market shall
have been suspended or minimum or maximum prices shall have been
established on any such exchange or market system;
(iii) a banking moratorium shall have been declared by New York or
United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of hostilities
between the United States and any foreign power, (B) an outbreak or
escalation of any other insurrection or armed conflict involving the
United States or (C) any other calamity or crisis or material adverse
change in general economic, political or financial conditions having an
effect on the U.S. financial markets that, in the sole judgment of the
Representatives, makes it impractical or inadvisable to proceed with the
public offering or the delivery of the Securities as contemplated by the
Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 13 shall be
without liability of any party to any other party except as provided in Section
12 hereof.
14. Limitation of Liability.
------------------------
The liability of each Selling Securityholder, including the Principal
Selling Security holders, under Sections 2 and 10 shall not exceed an amount
equal to the initial public offering price of the Option Securities sold by such
Selling Securityholder to the Underwriters. The Underwriters shall seek
indemnification or other remedies, to which they are entitled under Sections 2
and 10 first from the Company. If the Company does not respond to the
Underwriters after 30 days, then the Underwriters may seek such indemnification
or other remedies from the Selling Security holders. In the event that the
Underwriters are unable (or believe that they will be unable to) obtain such
indemnification or other remedies from the Company, the Underwriters may then
seek indemnification or other remedies from the Selling Security holders.
15. Information Supplied by Underwriters. The statements set forth in the
-------------------------------------
last paragraph on the front cover page and under, the tables below paragraphs 1
and 4, and paragraphs 2, 3, 8, 9, 11- 13, of the heading "Underwriting" in any
Preliminary Prospectus or the Prospectus (to the extent such statements relate
to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 10 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
16. Notices. All communications hereunder shall be in writing and, if sent
-------
to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; with a
copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxx Xxxx, XX 00000, Attention: Xxxxxxx X. Xxxxx, and if sent to the
Company, shall be delivered or sent by mail, telex or facsimile transmission and
confirmed in writing to the Company at 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxx; with a copy to Wilson, Sonsini, Xxxxxxxx &
Xxxxxx, a professional corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000,
Attention: Xxxxx X. Xxxxxx.
17. Successors. This Agreement shall inure to the benefit of and shall be
----------
binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 10 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 10 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
18. Applicable Law. The validity and interpretation of this Agreement, and
--------------
the terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
19. Consent to Jurisdiction and Service of Process. All judicial proceedings
----------------------------------------------
arising out of or relating to this Agreement may be brought in any state or
federal court of competent jurisdiction in the State of New York, and by
execution and delivery of this Agreement, each Selling Securityholder accepts
for itself and in connection with its properties, generally and unconditionally,
the nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. Each Selling Securityholder
designates and appoints Xxxxx X. XxXxxxx, and such other persons as may
hereafter be selected by such Selling Securityholder irrevocably agreeing in
writing to so serve, as its agent to receive on its behalf service of all
process in any such proceedings in any such court, such service
being hereby acknowledged by such Selling Securityholder to be effective and
binding service in every respect. A copy of any such process so served shall be
mailed by registered mail to each Selling Securityholder at its address provided
in Section 15 hereof; provided, however, that, unless otherwise provided by
-------- -------
applicable law, any failure to mail such copy shall not affect the validity of
service of such process. If any agent appointed by any Selling Securityholder
refuses to accept service, such Selling Securityholder hereby agrees that
service of process sufficient for personal jurisdiction in any action against
such Selling Securityholder in the State of New York may be made by registered
or certified mail, return receipt requested, to such Selling Securityholder at
its address provided in Section 15 hereof, and such Selling Securityholder
hereby acknowledges that such service shall be effective and binding in every
respect. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of any Underwriter to bring
proceedings against any Selling Securityholder in the courts of any other
jurisdiction.
20. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and each of the
several Underwriters.
Very truly yours,
xxxxxx.xxx, Inc.
By ________________________
[Title]
PRINCIPAL SELLING SECURITYHOLDERS
By ________________________
Name: Xxxxx X. XxXxxxx
By ________________________
Name: Xxxxxx Field
SELLING SECURITYHOLDERS
By ________________________
Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
XXXX XXXXXXXX XXXXXXX, A Division of
Xxxx Xxxxxxxx Incorporated
XXXXX XXXXX XXXXXX & COMPANY
E*OFFERING CORP.
By PRUDENTIAL SECURITIES INCORPORATED
By _____________________
Xxxx-Xxxxxx Canfin
Managing Director
For itself and on behalf of the Representatives.
SCHEDULE 1
UNDERWRITERS
Securities to Number of Firm
Underwriter be Purchased
----------- ------------
PRUDENTIAL SECURITIES INCORPORATED.......
XXXX XXXXXXXX XXXXXXX, a division of
Xxxx Xxxxxxxx Incorporated
XXXXX XXXXX XXXXXX & COMPANY
E*OFFERING CORP.
_______________
Total ..............
SCHEDULE 2
SUBSIDIARIES
Name Jurisdiction of Incorporation
---- -----------------------------
SCHEDULE 3
Name Number of Shares to be Sold
---------------------------------------------------------------
xxxxxx.xxx, Inc.
Xxxxx X. XxXxxxx
Xxxxxx Field
Xxxxxx X. Xxxxxx
Vestmark Limited
