EXHIBIT 1.1
_______________ Shares
RADVIEW SOFTWARE LTD.
Ordinary Shares
Form of
UNDERWRITING AGREEMENT
__________, 2000
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
U.S. BANCORP XXXXX XXXXXXX INC.
WIT SOUNDVIEW CORPORATION
DLJdirect INC.
As representatives of the
several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Radview Software Ltd., an Israeli company (the "COMPANY"), proposes to
issue and sell an aggregate of __________ shares (the "FIRM SHARES") of the
Company's ordinary shares, nominal value NIS 0.01 per share to the several
underwriters named in Schedule I hereto (the "UNDERWRITERS"). The Company also
proposes to issue and sell to the several Underwriters not more than an
additional _______ of its ordinary shares, nominal value NIS 0.01 per share (the
"ADDITIONAL SHARES") if requested by the Underwriters as provided in Section 2
hereof. The Firm Shares and the Additional Shares are hereinafter referred to
collectively as the "SHARES". The ordinary shares of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "ORDINARY SHARES".
SECTION 1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared
and filed with the Securities and Exchange Commission (the "COMMISSION") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"ACT"), a registration statement on Form F-1, including a
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prospectus, relating to the Shares. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is hereinafter referred to as the "REGISTRATION STATEMENT";
and the prospectus in the form first used to confirm sales of Shares is
hereinafter referred to as the "PROSPECTUS". If the Company has filed or is
required pursuant to the terms hereof to file a registration statement pursuant
to Rule 462(b) under the Act registering additional Ordinary Shares (a "RULE
462(b) REGISTRATION STATEMENT"), then, unless otherwise specified, any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement.
SECTION 2. AGREEMENTS TO SELL AND PURCHASE AND LOCK-UP AGREEMENTS. On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per Share of $______ (the "PURCHASE PRICE") the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to _______ Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof to
the Company within 30 days after the date of this Agreement. You shall give any
such notice on behalf of the Underwriters and such notice shall specify the
aggregate number of Additional Shares to be purchased pursuant to such exercise
and the date for payment and delivery thereof, which date shall be a business
day (i) no earlier than two business days after such notice has been given (and,
in any event, no earlier than the Closing Date (as hereinafter defined)) and
(ii) no later than ten business days after such notice has been given. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares to be purchased from the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number of
Firm Shares.
The Company hereby agrees not to (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, accelerate the vesting
period of any option, change the exercise date of any right or warrant to
purchase, or otherwise
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transfer or dispose of, directly or indirectly, any Ordinary Shares or any
securities convertible into or exercisable or exchangeable for Ordinary Shares
or (ii) enter into any swap or other arrangement that transfers all or a portion
of the economic consequences associated with the ownership of any Ordinary
Shares (regardless of whether any of the transactions described in clause (i) or
(ii) is to be settled by the delivery of Ordinary Shares, or such other
securities, in cash or otherwise), except to the Underwriters pursuant to this
Agreement, for a period of 180 days after the date of the Prospectus without the
prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
("DLJ"). Notwithstanding the foregoing, during such period (i) the Company may
grant stock options pursuant to the Company's existing stock option plan which
do not vest during the period of 180 days after the date of the Prospectus and
(ii) the Company may issue Ordinary Shares upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof; and
(iii) the Company may issue Ordinary Shares or any option, right or warrant to
purchase, directly or indirectly, any shares of Ordinary Shares or any
securities convertible into or exercisable or exchangeable for Ordinary Shares
in connection with the Company's acquisition of the assets of or ownership
interest in, another business or entity or in connection with other strategic
transactions; provided that the recipients of such Ordinary Shares shall agree
in writing to be bound by the restrictions of this paragraph for the remainder
of such 180 day period. The Company also agrees not to file any registration
statement with respect to any Ordinary Shares or any securities convertible into
or exercisable or exchangeable for Ordinary Shares for a period of 180 days
after the date of the Prospectus without the prior written consent of DLJ (other
than any registration statement on Form F-8 registering Ordinary Shares acquired
or to be acquired pursuant to the Company's existing stock plans). The Company
shall, prior to or concurrently with the execution of this Agreement, deliver an
agreement executed by (i) each of the directors and officers of the Company and
(ii) each shareholder and optionholder listed on Annex I hereto to the effect
that such person will not, during the period commencing on the date such person
signs such agreement and ending 180 days after the date of the Prospectus,
without the prior written consent of DLJ or unless otherwise expressly permitted
by the terms of such agreement, engage in any of the transactions prohibited by
the terms of such agreement, attached hereto as EXHIBIT A.
As part of the offering contemplated by this Agreement, DLJ has agreed to
reserve, of the Shares set forth opposite its name on the Schedule I to this
Agreement, up to ________________ shares, for sale to the Company's employees,
officers, directors and other parties associated with the Company (collectively,
"PARTICIPANTS"), as set forth in the Prospectus under the heading "Underwriting"
(the "DIRECTED SHARE PROGRAM"). The shares to be sold by DLJ pursuant to the
Directed Share Program (the "DIRECTED SHARES") will be sold by DLJ pursuant to
this Agreement at the public offering price. Any Directed Shares not orally
confirmed for purchase by any Participants by the end of the business
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day on which this Agreement is executed will be offered to the public by DLJ as
set forth in the Prospectus.
SECTION 3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Shares as soon after the execution and delivery of this Agreement as in
your judgment is advisable and (ii) initially to offer the Shares upon the terms
set forth in the Prospectus.
SECTION 4. DELIVERY AND PAYMENT. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as DLJ shall request no later than two business days
prior to the Closing Date or the applicable Option Closing Date (as defined
below), as the case may be. The Company shall deliver the Shares, with any
transfer taxes thereon duly paid by the Company, to DLJ through the facilities
of The Depository Trust Company ("DTC"), for the respective accounts of the
several Underwriters, against payment to the Company of the Purchase Price
therefore by wire transfer of Federal or other funds immediately available in
New York City to an account which shall have been specified by the company at
least three business days prior to the Closing Date or the applicable Option
Closing Date, as the case may be (as defined below). The certificates
representing the Shares shall be made available for inspection not later than
9:30 A.M., New York City time, on the business day prior to the Closing Date or
the applicable Option Closing Date, as the case may be, at the office of DTC or
its designated custodian (the "DESIGNATED OFFICE"). The time and date of
delivery and payment for the Firm Shares shall be 9:00 A.M., New York City time,
on ________, 2000 or such other time on the same or such other date as DLJ and
the Company shall agree in writing. The time and date of delivery for the Firm
Shares are hereinafter referred to as the "CLOSING DATE". The time and date of
delivery and payment for any Additional Shares to be purchased by the
Underwriters shall be 9:00 A.M., New York City time, on the date specified in
the applicable exercise notice given by you pursuant to Section 2 or such other
time on the same or such other date as DLJ and the Company shall agree in
writing. The time and date of delivery for any Additional Shares are hereinafter
referred to as an "OPTION CLOSING DATE".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 8 of this Agreement
shall be delivered at the offices of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 and the Shares
shall be delivered at the Designated Office, all on the Closing Date or such
Option Closing Date, as the case may be.
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SECTION 5. AGREEMENTS OF THE COMPANY. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice
in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish to you six (6) signed copies of the Registration Statement
as first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the
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Prospectus (and of any amendment or supplement to the Prospectus) as such
Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the judgment of the Company or
in the opinion of counsel for the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the judgment of the Company or in the opinion of counsel
for the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus so that the statements in
the Prospectus, as so amended or supplemented, will not in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with applicable law, and to furnish to each Underwriter and to any
dealer as many copies thereof as such Underwriter or dealer may reasonably
request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such U.S.
jurisdictions, or the securities laws of such other jurisdictions as you may
request, to continue such registration or qualification in effect so long as
required for distribution of the Shares and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; PROVIDED, HOWEVER, that the Company shall not be
required in connection therewith to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation in
any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its shareholders as soon as
practicable an earnings statement covering the twelve-month period ending
September 30, 2001 that shall satisfy the provisions of Section 11(a) of the
Act, and to advise you in writing when such statement has been so made
available.
(h) During the period of three years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Ordinary Shares or furnished
to or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and Radview Software, Inc. (the "U.S.
Subsidiary") as you may reasonably request.
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(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Shares under the Act and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters and the issuance of the
Shares, including any stamp duty, transfer or other taxes payable thereon, (iii)
all costs of printing or producing this Agreement and any other agreements or
documents in connection with the offering, purchase, sale or delivery of the
Shares, (iv) all expenses in connection with the registration or qualification
of the Shares for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any Preliminary and
Supplemental Blue Sky Memoranda in connection therewith (including the filing
fees and fees and disbursements of counsel for the Underwriters in connection
with such registration or qualification and memoranda relating thereto, such
fees of counsel for the Underwriters not to exceed $5,000 in the aggregate), (v)
the filing fees and disbursements of counsel for the Underwriters in connection
with the review and clearance of the offering of the Shares by the National
Association of Securities Dealers, Inc. ("NASD"), (vi) all costs and expenses of
the Underwriters, incurred in connection with the Directed Shares Program, (vii)
all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A (or other applicable form) relating to the
Ordinary Shares and all costs and expenses incident to the listing of the Shares
on the Nasdaq National Market, (viii) the cost of printing certificates
representing the Shares, (ix) the costs and charges of any transfer agent,
registrar and/or depositary, and (x) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section. It is understood, however, that, except
as provided in this Section and Section 7 hereof, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel, stock
transfer taxes (other than any imposed by the State of Israel including, without
limitation, stamp tax payable upon issuance of the Shares) on resale of any of
the Shares by them, and any advertising expenses connected with any offers they
may make.
(j) To use its reasonable best efforts to list for quotation the Shares on
the Nasdaq National Market and to maintain the listing of the Shares on the
Nasdaq National Market for a period of three years after the date of this
Agreement.
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(k) To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b) Registration
Statement with the Commission registering the Shares not so covered in
compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(m) That in connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required by the
NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation
for a period of three months following the date of the effectiveness of the
Registration Statement. DLJ will notify the Company as to which Participants
will need to be so restricted. The Company will direct the removal or such
transfer restrictions upon the expiration of such period of time.
(n) To pay all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program (other than fees of
U.S. counsel for the Underwriters) and stamp duties, similar taxes or duties or
other taxes, if any, incurred by the Underwriters in connection with the
Directed Share Program.
Furthermore, the Company covenants with DLJ that the Company will comply
with all applicable securities and other applicable laws, rules and regulations
in each foreign jurisdiction in which the Directed Shares are offered in
connection with the Directed Share Program.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or, to the Company's knowledge, threatened
by the Commission.
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(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement), when it became effective, did not contain and, as amended, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act,
(iii) if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement and any amendments thereto, when they become effective (A) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (B) will comply in all material respects with the Act and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by or on behalf of such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects with the
Act, and did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in any preliminary
prospectus based upon information relating to any Underwriter furnished to the
Company in writing by or on behalf of such Underwriter through you expressly for
use therein.
(d) Each of the Company and the U.S. Subsidiary has been duly organized, is
validly existing as a company or corporation, as the case may be, and, in the
case of the U.S. Subsidiary, in good standing under the laws of its jurisdiction
of organization and has the power and authority under its respective
organizational documents and the respective laws of its jurisdiction of
organization to carry on its business as described in the Prospectus and to own,
lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such
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qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, properties, financial condition or
results of operations of the Company and the U.S. Subsidiary, taken as a whole
("Material Adverse Effect").
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or the U.S. Subsidiary entitling any person to purchase or otherwise
to acquire any share capital of the Company or any shares of the capital stock
of the U.S. Subsidiary, except as otherwise disclosed in the Registration
Statement.
(f) All of the outstanding share capital of the Company has been duly
authorized and validly issued and is fully paid, non-assessable and has been
issued in compliance with Israeli securities laws and upon the Closing Date will
not be subject to any preemptive or similar rights; and the Shares have been
duly authorized and, when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of the U.S. Subsidiary
have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, directly, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any nature.
(h) Assuming the effectiveness of the amended and restated articles of
association, filed as an exhibit to the Registration Statement, which articles
of association will become effective upon consummation of the offering
contemplated hereby, the authorized share capital of the Company conforms in all
material respects as to legal matters to the description thereof contained in
the Prospectus.
(i) Neither the Company nor the U.S. Subsidiary is in violation of its
memorandum or articles of association or charter or by-laws, as applicable,
or in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which the Company or the U.S. Subsidiary is
a party or by which the Company or the U.S. Subsidiary or their respective
property is bound, except any such default which would not, singly or in the
aggregate, have a Material Adverse Effect.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except as has been obtained or as may be
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required under the securities or Blue Sky laws of the various states or in
connection with the NASD's review of the underwriting arrangements of the
offering and sale of Shares), (ii) conflict with or constitute a breach of any
of the terms or provisions of, or a default under, the memorandum or articles of
association of the Company or the charter or by-laws of the U.S. Subsidiary or
any indenture, loan agreement, mortgage, lease or other agreement or instrument
that is material to the Company and the U.S. Subsidiary, taken as a whole, to
which the Company or the U.S. Subsidiary is a party or by which the Company or
the U.S. Subsidiary or their respective property is bound, (iii) violate or
conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, the U.S. Subsidiary or their respective property or (iv) result in
the suspension, termination or revocation of any Authorization (as defined
below) of the Company or the U.S. Subsidiary or any other impairment of the
rights of the holder of any such Authorization.
(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company or the U.S. Subsidiary, threatened to which the Company
or the U.S. Subsidiary is or, to the knowledge of the Company or the U.S.
Subsidiary, could properly be a party or to which any of their respective
property is or, to the knowledge of the Company or the U.S. Subsidiary, could be
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described; nor are there any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed .
(l) Neither the Company nor the U.S. Subsidiary, nor any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or the U.S. Subsidiary has violated any federal, state, provincial,
foreign or local law, regulation, code, rule of common law, or judicial or
administrative order, consent, decree or judgment relating to export controls,
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or any provisions of the Foreign Corrupt Practices Act, or the rules and
regulations promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a Material Adverse Effect.
(m) Each of the Company and the U.S. Subsidiary has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
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respective properties and to conduct its business, except where the failure
to have any such Authorization or to make any such filing or notice would
not, singly or in the aggregate, have a Material Averse Effect. Each such
Authorization is valid and in full force and effect and each of the Company
and the U.S. Subsidiary is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority
or governing body) which allows or, after notice or lapse of time or both,
would allow, revocation, suspension or termination of any such Authorization
or results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization; and,
except to the extent disclosed in the Prospectus, such Authorizations contain
no restrictions that are burdensome to the Company or the U.S. Subsidiary;
except where such failure to be valid and in full force and effect or to be
in compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(n) Neither the Company nor the U.S. Subsidiary has incurred any costs or
liabilities associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any Authorization, any
related constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a Material Adverse
Effect.
(o) This Agreement has been duly authorized, executed and delivered by the
Company. (p) Luboshitz Kasierer, a member firm of Xxxxxx Xxxxxxxx LLP are
independent public accountants with respect to the Company and the U.S.
Subsidiary within the meaning of the Act.
(p) Luboshitz Kasierer, a member firm of Xxxxxx Xxxxxxxx LLP are
independent public accountants with respect to the Company and the U.S.
Subsidiary within the meaning of the Act.
(q) The audited consolidated financial statements, and the unaudited
financial information, together in each case with related schedules and notes,
forming part of the Registration Statement and the Prospectus (and any amendment
or supplement thereto), present fairly the consolidated financial position,
results of operations and changes in financial position of the Company and the
U.S. Subsidiary on the basis stated therein at the respective dates or for the
respective periods to which they apply; the audited consolidated financial
statements and the unaudited financial information, together in each case with
related schedules and notes, forming part of the Registration Statement and the
Prospectus have been prepared in accordance with generally accepted accounting
principles of the United States consistently applied throughout the periods
involved, except as otherwise disclosed therein; the supporting schedules, if
any, included in the Registration Statement present fairly in accordance with
generally accepted accounting principles of the United States the information
required to be
12
stated therein; and the other financial and statistical information and data set
forth in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(r) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(s) Except as disclosed in the Registration Statement and except for rights
with respect to this offering of the Shares which have been waived, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(t) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there has not occurred any material adverse change or, to the knowledge
of the Company, any development involving a prospective Material Adverse
Effect, (ii) there has not been any material adverse change or to the
knowledge of the Company any development involving a prospective material
adverse change in the share capital or capital stock, as the case may be, of
the Company or the U.S. Subsidiary or in the long-term debt of the Company or
the U.S. Subsidiary, taken as a whole, and (iii) neither the Company nor the
U.S. Subsidiary has incurred any liability or obligation, direct or
contingent, that is material to the Company and the U.S. Subsidiary, taken as
a whole.
(u) Intentionally omitted.
(v) Each certificate signed by any officer of the Company and delivered to
the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
(w) (i) The Company or the U.S. Subsidiary has good and marketable title to
all property described in the Registration Statement and Prospectus as being
owned by the Company or the U.S. Subsidiary, free and clear of all liens,
claims, security interest or other encumbrances except such as are described in
the Registration Statement and the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made and
proposed to be
13
made of such property by the Company or the U.S. Subsidiary, as the case may be;
(ii) no labor dispute with the employees of the Company or the U.S. Subsidiary
exists or, to the knowledge of the Company, is imminent that would have a
Material Adverse Effect; (iii) the Company and the U.S. Subsidiary carry, or are
covered by, insurance in such amounts and covering such risks as are prudent and
customary in the business in which they are engaged; (iv) the property held
under lease by the Company or the U.S. Subsidiary is held by the Company or the
U.S. Subsidiary under valid, subsisting and enforceable leases with only such
exceptions with respect to any particular lease as do not interfere in any
material respect with the conduct of the business of the Company and the U.S.
Subsidiary, taken as a whole, and except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
rights relating to or affecting creditors' rights generally or by general
principles of equitable law; (v) the Company or the U.S. Subsidiary owns or
possesses sufficient rights to use all patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service xxxx registrations,
copyrights, licenses, inventions, trade secrets and other intellectual property
rights ("INTELLECTUAL PROPERTY") necessary for the conduct of business of the
Company and the U.S. Subsidiary as currently carried on and as described in the
Registration Statement and Prospectus, except where the failure to so own or
possess such right would not have a Material Adverse Effect ; (vi) except as
stated in the Registration Statement and Prospectus, to the knowledge of the
Company, no name which the Company or the U.S. Subsidiary uses and no other
aspect of the business of the Company or the U.S. Subsidiary will involve or
give rise to any material infringement of, or material license or similar fees
for, any Intellectual Property of others material to the business or prospects
of the Company and the U.S. Subsidiary, taken as whole; and (vii) neither the
Company nor the U.S. Subsidiary has received any notice alleging any such
infringement or fee, except for such allegations, if any, which, if true, would
not have a Material Adverse Effect.
(x) The Shares have been conditionally approved for quotation on the Nasdaq
National Market and, on the date the Registration Statement became or becomes
effective, the Company's Registration Statement on Form 8-A or other applicable
form under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act"),
became or will become effective.
(y) The Company owns no capital stock or other equity or ownership or
proprietary interest in any corporation, partnership, association, trust or
other entity other than the U.S. Subsidiary.
(z) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions
14
are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles of the United States
and to maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(aa) Except for the applicable stamp duty under Israeli law which will be
paid by the Company, there are no transfer taxes or similar fees or charges
under U.S. federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of
this Agreement or the issuance and sale by the Company of the Ordinary Shares.
(bb) The Company is not, but upon the consummation of the transactions
contemplated hereby and the application of the proceeds as described in the
Registration Statement under the caption "Use of Proceeds," may temporarily
become as described in the Registration Statement under the caption "Tax
Consequences if We Are a Passive Foreign Investment Company", a passive foreign
investment company (a "PFIC") as defined in Section 1296 of the Internal Revenue
Code of 1986, as amended (the "Code").
(cc) Except as described in the Prospectus, the Company is in compliance
with all material conditions and requirements stipulated by the instruments of
approval entitling it or any of its operations to the status of "Approved
Enterprise" under Israeli law and by Israeli laws and regulations relating to
such Approved Enterprise status, except such non-compliance as would not have a
Material Adverse Effect. All information supplied by the Company with respect to
such applications was true, correct and complete in all material respects when
supplied to the appropriate authorities.
(dd) Except as described in the Prospectus, the Company is not in material
violation of any conditions or requirements stipulated by the instruments of
approval granted to any of them by the Office of Chief Scientist of the Israeli
Ministry of Industry & Trade and any applicable laws and regulations, with
respect to any research and development grants given to it by such office, which
violation, individually or in the aggregate, could have a Material Adverse
Effect. All information supplied by the Company with respect to such
applications was true, correct and complete in all material respects when
supplied to the appropriate authorities.
Furthermore, the Company represents and warrants to DLJ that (i) the
Registration Statement, the Prospectus and any preliminary prospectus comply,
and any further amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus
or any preliminary prospectus, as amended or supplemented, if applicable, are
15
distributed in connection with the Directed Share Program, and that (ii) no
authorization, approval, consent, license, order, registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are offered
outside the United States.
SECTION 7. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter, its directors, its officers and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation,
any legal or other expenses incurred in connection with investigating or
defending any matter, including any action, that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to any Underwriter furnished in
writing to the Company by or on behalf of such Underwriter through you
expressly for use therein; PROVIDED, HOWEVER, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter who failed to deliver a Prospectus, as then
amended or supplemented, (so long as the Prospectus and any amendments or
supplements thereto was provided by the Company to the several Underwriters
in the requisite quantity and on a timely basis to permit proper delivery on
or prior to the written confirmation of sale) to the person asserting any
losses, claims, damages, liabilities or judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in such
preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, if such material misstatement or
omission or alleged material misstatement or omission was cured in the
Prospectus, as so amended or supplemented, and such Prospectus was required
by law to be delivered at or prior to the written confirmation of sale to
such person.
(b) The Company agrees to indemnify and hold harmless DLJ and each
person, if any, who controls DLJ within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act ("DLJ Entities"), from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
16
defending or investigating any such action or claim) (i) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
prospectus wrapper material prepared by or with the consent of the Company for
distribution in foreign jurisdictions in connection with the Directed Share
Program attached to the Prospectus or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement therein, when considered in
conjunction with the Prospectus or any applicable preliminary prospectus, not
misleading; (ii) caused by the failure of any Participant to pay for and accept
delivery of the shares which immediately following the effectiveness of the
Registration Statement, were subject to a properly confirmed agreement to
purchase; or (iii) related to, arising out of, or in connection with the
Directed Share Program, provided that, the Company shall not be responsible
under this subparagraph (iii) for any losses, claim, damages or liabilities (or
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of DLJ Entities.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign 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, to the same extent
as the foregoing indemnity from the Company to such Underwriter but only with
reference to information relating to such Underwriter furnished in writing to
the Company by or on behalf of such Underwriter through you expressly for use in
the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(d) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 7(a), 7(b) or 7(c) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both (X) both Sections 7(a) and 7(c), or (Y) both Sections 7(a) and 7(b), any
Underwriter shall not be required to assume the defense of such action pursuant
to this Section 7(d), but may employ separate counsel and participate in the
defense thereof, but the fees and expenses of such counsel, except as provided
below, shall be at the expense of such Underwriter). Any indemnified party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel shall
have
17
been specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by DLJ, in the case of parties indemnified
pursuant to Section 7(a) and 7(b), and by the Company, in the case of parties
indemnified pursuant to Section 7(c). The indemnifying party shall indemnify and
hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
Notwithstanding anything contained herein to the contrary, if indemnity may be
sough pursuant to Section 7(b) hereof in respect of such action or proceeding,
then in addition to such separate firm for the identified parties, the
indemnifying party shall be liable for the reasonable fees and expenses of not
more than one separate firm (in addition to any local counsel) for DLJ for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control DLJ within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act.
18
(e) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause 7(e)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 7(e)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions, but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Shares, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
19
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7(e) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint.
(f) The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Firm Shares under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this
Agreement shall be true and correct on the Closing Date with the same force and
effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., New York City time, on the
date of this Agreement; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by Xxxx Xxxxxxxx and Xxxxxx X. Xxxxxx, in their respective
capacities as Chief Executive Officer and Chief Financial Officer of the
Company, confirming the matters set forth in Sections 6(t), 8(a) and 8(b) and
that the Company has complied with all of the agreements and satisfied all of
the conditions herein contained and required to be complied with or satisfied by
the Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and the U.S. Subsidiary, taken
as a whole, (ii) there shall not have been any change or any development
involving a prospective change in the share capital or capital stock, as the
case may be, of the Company or the U.S. Subsidiary or in the long-term debt of
the Company or the U.S. Subsidiary and (iii) neither the Company nor the U.S.
Subsidiary shall have incurred any liability or obligation, direct or
contingent, the effect of which, in
20
any such case described in clause 8(d)(i), 8(d)(ii) or 8(d)(iii), in your
judgment, is material and adverse and, in your judgment, makes it impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
(e) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. counsel for the Company substantially in
the form of Exhibit B attached hereto. In giving such opinion, such counsel may,
as to matters of fact, rely on certificates of the Company or of public
officials.
The opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
described in EXHIBIT B shall be rendered to you at the request of the Company
and shall so state therein.
(f) You shall have received on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of Sharir, Shiv,
Xxxxxxxx & Co., Law Offices, Israeli counsel for the Company, substantially in
the form of Exhibit C attached hereto.
The opinion of Sharir, Shiv, Xxxxxxxx & Co., Law Offices, Israel described
in EXHIBIT C hereto shall be rendered to you at the request of the Company and
shall so state therein.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, from each of (i)Xxxxxxx, Procter & Xxxx LLP and (ii) Yigal, Arnon
& Co., counsel for the Underwriters in form and substance reasonably
satisfactory to you.
(h) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Luboshitz Kasierer, a member firm
of Xxxxxx Xxxxxxxx LLP, independent public accountants, containing the
information and statements of the type ordinarily included in accountants'
"comfort letters" to Underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
21
(i) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(j) The Shares shall have been duly listed for quotation on the Nasdaq
National Market.
(k) The Company shall not have failed on or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Company on or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
valid existence of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 9. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and the
U.S. Subsidiary, taken as a whole, (v) the declaration of a banking moratorium
by either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
22
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion which
the number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to you
and the Company for purchase of such Firm Shares are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter and the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased on such
date, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase such Additional Shares or (ii) purchase
not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
SECTION 10. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to Radview
Software, Ltd., 7 New England Executive Park, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
23
and (ii) if to any Underwriter or to you, to you c/x Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Shares and payment for them hereunder and (iii) termination of
this Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(i) hereof. The Company also agrees to reimburse the
several Underwriters, their directors and officers and any persons controlling
any of the Underwriters for any and all fees and expenses (including, without
limitation, the fees disbursements of counsel) incurred by them in connection
with enforcing their rights hereunder (including, without limitation, pursuant
to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriters, the
Underwriters' directors and officers, any controlling persons referred to
herein, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Shares from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York. The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in the
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company has appointed CT
Corporation System, 000 0xx Xxxxxx, Xxx Xxxx, XX 00000, as its authorized agent
in the Borough of Manhattan in the City of New York upon which process may be
served in any such suit of proceeding, and agrees that service of process
24
upon such agent, and written notice of said service to the Company by the person
serving the same to the address provided above in this Section 10, shall be
deemed in every respect effective service of process upon the Company in any
such suit or proceeding. The Company further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such agent
in full force and effect for a period of five years from the date of this
Agreement.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
RADVIEW SOFTWARE, LTD.
By:___________________
Name:_______________
Title:______________
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
U.S. BANCORP XXXXX XXXXXXX INC.
WIT SOUNDVIEW CORPORATION
DLJdirect INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By_______DONALDSON, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:______________________________________________________
Name:_______________________________________________
Title:______________________________________________
26
SCHEDULE I
Underwriters Number of Firm Shares
to be Purchased
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES
CORPORATION
U.S. BANCORP XXXXX XXXXXXX INC.
WIT SOUNDVIEW CORPORATION
DLJdirect INC.
[OTHERS]
Total
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