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EXHIBIT 1.1
HMT TECHNOLOGY CORPORATION
10,000,000 SHARES
COMMON STOCK
($0.001 PAR VALUE)
U.S. UNDERWRITING AGREEMENT
New York, New York
August , 1997
Salomon Brothers Inc
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx & Xxxxx LLC
Xxxxxxxxx, Xxxxxxxx & Company LLC
As Representatives of the several Underwriters,
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
HMT Technology Corporation, a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule I hereto (the
U.S. "Underwriters"), for whom you (the "Representatives") are acting as
representatives, 850,000 shares of Common Stock, $0.001 par value ("Common
Stock") of the Company, and the persons named in Schedule II hereto (the
"Selling Stockholders"), propose to sell to the Underwriters 7,650,000 shares of
Common Stock (said shares to be issued and sold by the Company and shares to be
sold by the Selling Stockholders collectively being hereinafter called the "U.S.
Underwritten Securities"). The Company and the Selling Stockholders also propose
to grant to the Underwriters an option to purchase up to 1,275,000 additional
shares of Common Stock (the "Option Securities"; the U.S. Option Securities,
together with the U.S. Underwritten Securities, being hereinafter called the
"U.S. Securities"), which U.S. Option Securities shall be allocated among the
Company and the Selling Stockholders, on a pro rata basis, based on the
proportion of U.S. Underwritten Securities sold by each of them. It is
understood that the Company and Selling Stockholders are concurrently entering
into an International Underwriting Agreement dated the date hereof (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Stockholders of an aggregate of 1,500,000 shares of Common Stock
(said
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shares to be sold by the Company and the Selling Stockholders being hereinafter
called the "International Underwritten Securities"), outside the United States
and Canada with certain underwriters outside the United States and Canada (the
"International Underwriters"), for whom Salomon Brothers International Limited,
Alex. Xxxxx & Sons International, Xxxxxxxxx & Xxxxx LLC and Xxxxxxxxx, Xxxxxxxx
& Company are acting as representatives (the "International Representatives"),
and providing for the grant to the International Underwriters for an option to
purchase from the Company and the Selling Stockholders up to 225,000 additional
shares of Common Stock (the "International Option Securities"; the International
Option Securities, together with the International Underwritten Securities,
being hereinafter called the "International Securities" and the U.S. Securities,
together with the International Securities, being hereinafter called the
"Securities." It is further understood and agreed that the U.S. Underwriters and
the International Underwriters have entered into an Agreement Between U.S.
Underwriters and International Underwriters dated the date hereof (the
"Agreement Between U.S. Underwriters and International Underwriters"), pursuant
to which, among other things, the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to the International Underwriting Agreement and the International
Underwriters may purchase from the U.S. Underwriters a portion of the U.S.
Securities to be sold pursuant to the U.S. Underwriting Agreement. To the extent
there are no additional Underwriters listed on Schedule I other than you, the
term Representatives as used herein shall mean you, as U.S. Underwriters, and
the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. Any reference herein to the Registration
Statement, a Preliminary Prospectus or a Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the Effective Date of the Registration
Statement or the issue date of such Preliminary Prospectus or Prospectus, as the
case may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the Registration
Statement, or the issue date of any Preliminary Prospectus or Prospectus, as the
case may be, deemed to be incorporated therein by reference.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
U.S. Underwriter as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in Section 17 hereof.
(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act") and has filed with
the Securities
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and Exchange Commission (the "Commission") a registration statement
(file number 333-32025) on such Form, including related preliminary
prospectuses, for the registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more
amendments thereto, including related preliminary prospectuses, each of
which has previously been furnished to you. The Company will next file
with the Commission one of the following: (A) prior to the Effective
Date of such registration statement, a further amendment to such
registration statement, including the form of final prospectus, or (B)
after the effective date of such registration statement, final
prospectuses in accordance with Rules 430A and 424(b)(1) or (4). In the
case of clause (B), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to
be included in such registration statement and the Prospectuses. As
filed, such amendment and form of final prospectus, or such final
prospectus, shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
It is understood that two forms of prospectus are to be used in
connection with the offering and sale of the Securities: one form of prospectus
relating to the U.S. Securities, which are to be offered and sold to United
States and Canadian Persons, and one form of prospectus relating to the
International Securities, which are to be offered and sold to persons other than
United States and Canadian Persons. The two forms of prospectus are identical
except for the outside front cover page, the discussion under the heading
"Underwriting" and the outside back cover page. Such form of prospectus relating
to the U.S. Securities as first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is made, such form of
prospectus included in the Registration Statement the Effective Date, is
hereinafter called the "U.S. Prospectus"; such form of prospectus relating to
the International Securities as first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is made, such form of
prospectus included in the Registration Statement at the Effective Date, is
hereinafter called the "International Prospectus"; and the U.S. Prospectus and
the International Prospectus are hereinafter collectively called the
"Prospectuses."
(ii) On the Effective Date, the Registration Statement did or
will, and when the Prospectuses are first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which shares sold in respect of the U.S.
Underwriters' over-allotment option are purchased, if such date
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is not the Closing Date (a "Settlement Date") each Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date, each Prospectus, if
not filed pursuant to Rule 424(b), did or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date and any
Settlement Date, each Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact neces sary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectuses (or any
supplement thereto) in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Prospectuses (or any supplement
thereto).
(iii) Each of the Company and its subsidiary, HMT Barbados FSC
Ltd., a Barbados West Indies Company (the "Subsidiary") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction wherein it owns or leases
material properties or conducts material business and where the failure
to be so qualified would, individually or in the aggregate, have a
material adverse change in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiary, taken as a whole, whether or not arising from transactions
in the ordinary course of business; to the best of the Company's
knowledge, no proceeding has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification; each of the Company
and the Subsidiary is in possession of and operating in compliance with
all authorizations, licenses, certificates, consents, orders and permits
from state, federal and other regulatory authorities which are material
to its business, all of which are valid and in full force and effect;
neither the Company nor the Subsidiary is in violation of its respective
charter or bylaws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
material bond, debenture, note or other evidence of indebtedness, or in
any material lease,
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contract, indenture, mortgage, deed of trust, loan agreement, joint
venture or other agreement or instrument to which the Company or the
Subsidiary is a party or by which either of them or any of their
properties may be bound; and neither the Company nor the Subsidiary is
in material violation of any law, order, rule, regulation, writ,
injunction, judgment or decree of any court, government or governmental
agency or body, domestic or foreign, having jurisdiction over the
Company or any of its properties. The Company does not own or control,
directly or indirectly, any corporation, asso ciation or other entities
other than the Subsidiary, which is not a "Significant Subsidiary" (as
such term is defined in Regulation S-X of the Act).;
(iv) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Prospectuses, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(v) The Company's authorized equity capitalization is as set
forth in the Prospectuses; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectuses; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities being sold hereunder have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the
certificates for the Securities are in valid and sufficient form; the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Securities;
and, except as set forth in the Prospectuses, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding. The description of the Company's stock option, stock bonus
and other stock plans or arrangements, and the options or other rights
granted and exercised thereunder, set forth in the Final Memorandum,
accurately and fairly presents the information required to be shown with
respect to such plans, arrangements, options and rights.
(vi) There is no pending or, to the knowledge of the Company,
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or the Subsidiary or either of their property of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectuses, and there is no
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franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectuses, or to be filed
as an exhibit thereto, which is not described or filed as required."
(vii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms.
(viii) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectuses, will not be an "investment
company" as defined in the Investment Company Act;
(ix) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with
the transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the U.S. Underwriters in the manner contemplated herein
and in the Prospectuses;
(x) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or the Subsidiary pursuant
to, (i) the charter or by-laws of the Company or the Subsidiary or (ii)
the terms of any material indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or the Subsidiary
is a party or bound or to which its or their property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or the Subsidiary of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or the Subsidiary or any
of their properties.
(xi) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement, except
as have been waived in writing.
(xii) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Prospectuses
and the Registration Statement present fairly in all material respects
the financial condition, results of operations and cash flows of the
Company as of the dates and for the periods
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indicated, comply as to form with the applicable accounting requirements
of the Act and the rules and regulations thereunder and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth under
the caption "Selected Consolidated Financial Data" in the Prospectuses
and Registration Statement fairly present, on the basis stated in the
Prospectuses and the Registration Statement, the information included
therein.
(xiii) The Company owns or has obtained licenses for the patents,
patent applications, trade and service marks, trade secrets and other
intellectual properties referenced or described in the Prospectuses as
being owned by or licensed to it (collectively, the "Intellectual
Property"). Except as set forth in the Prospectuses under the caption
"Risk Factors - Intellectual Property and Proprietary Rights," (a) to
the Company's knowledge, there are no rights of third parties to any
such Intellectual Property; (b) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (c) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (d) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by
others that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any other fact which would form a
reasonable basis for any such claim; (e) to the Company's knowledge,
there is no U.S. patent or published U.S. patent application which
contains claims that dominate or may dominate any Intellectual Property
described in the Prospectus as being owned by or licensed to the Company
or that interferes with the issued or pending claims of any such
Intellectual Property; and (f) there is no prior art of which the
Company is aware that may render any U.S. patent held by the Company
invalid or any U.S. patent application held by the Company unpatentable
which has not been disclosed to the U.S. Patent and Trademark Office.
Each of the Company and the Subsidiary owns the Intellectual Property or
has the rights to the Intellectual Property that is necessary to conduct
its business as described in the Prospectuses.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the U.S. Underwriters in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Company, as to matters covered thereby, to each U.S.
Underwriter.
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(b) Each Selling Stockholder, severally and not jointly,
represents and warrants to, and agrees with, each Underwriter that:
(i) Such Selling Stockholder is the lawful owner of the
Securities to be sold by such Selling Stockholder hereunder and upon
sale and delivery of, and payment for, such U.S. Securities, as provided
herein, such Selling Stockholder will convey good and valid title to
such U.S. Securities, free and clear of all liens, encumbrances,
equities and claims whatsoever.
(ii) Such Selling Stockholder has not taken and will not take,
directly or in directly, any action designed to or which has constituted
or which might reasonably be expected to cause or result, under the
Exchange Act or otherwise, in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
U.S. Securities and since July 30, 1997, has not effected any sales of
shares of Common Stock which, if effected by the issuer, would be
required to be disclosed in response to Item 701 of Regulation S-K.
(iii) Certificates in negotiable form for such Selling
Stockholder's U.S. Securities have been placed in custody, for delivery
pursuant to the terms of this Agreement, under a Custody Agreement duly
authorized, executed and delivered by such Selling Stockholder, in the
form heretofore furnished to you (the "Custody Agreement"), with Boston
EquiServe Limited Partnership, as Custodian (the "Custodian"); the U.S.
Securities represented by the certificates so held in custody U.S. for
such Selling Stockholder are subject to the interests hereunder of the
Underwriters, the Company and the other Selling Stockholders; the
arrangements for custody and delivery of such certificates, made by such
Selling Stockholder hereunder and under the Custody Agreement, are not
subject to termination by any acts of such Selling Stockholder, or by
operation of law, whether by the death or incapacity of such Selling
Stockholder or the occurrence of any other event; and if any such death,
incapacity or any other such event shall occur before the delivery of
such U.S. Securities hereunder, certificates for the U.S. Securities
will be delivered by the Custodian in accordance with the terms and
conditions of this Agreement and the Custody Agreement as if such death,
incapacity or other event had not occurred, regardless of whether or not
the Custodian shall have received notice of such death, incapacity or
other event.
(iv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated herein, except such
as may have been obtained under the Act and such as may be required
under the blue sky laws of any
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jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been
obtained.
(v) Neither the sale of the U.S. Securities being sold by such
Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by such Selling Stockholder or the
fulfillment of the terms hereof by such Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law or, where applicable, the charter or by-laws of
such Selling Stockholder or the terms of any material indenture or other
agreement or instrument to which such Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
applicable to such Selling Stockholder or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder or any of
its subsidiaries.
In respect of any statements in or omissions from the
Registration Statement or the Prospectuses or any supplement thereto made in
reliance upon and in conformity with information furnished in writing to the
Company by any Selling Stockholder specifically for use in connection with the
preparation thereof, such Selling Stockholder hereby makes the same
representations and warranties to each Underwriter as the Company makes to such
Underwriter under paragraph (a)(ii) of this Section.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company and the Selling Stockholders (collectively, the "Sellers" and
individually, a "Seller") agree, severally and not jointly, to sell to each U.S.
Underwriter, and each U.S. Underwriter agrees, severally and not jointly, to
purchase from the Sellers, at a purchase price of $_____ per share, the amount
of the U.S. Securities set forth opposite such U.S. Underwriter's name in
Schedule I hereto. The amount of U.S. Securities to be purchased by each U.S.
Underwriter from each Seller shall be as nearly as practicable in the same
proportion to the total amount of U.S. Underwritten Securities to be purchased
by such U.S. Underwriter as the total amount of U.S. Underwritten Securities to
be sold by each Seller bears to the total amount of U.S.
Underwritten Securities to be sold pursuant hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company and the Selling
Stockholders hereby grant an option to the several U.S. Underwriters to
purchase, severally and not jointly, up to 1,275,000 shares of U.S. Option
Securities at the same purchase price per share as the U.S. Underwriters shall
pay for the U.S. Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the U.S. Underwritten Securities by the
U.S. Underwriters. Said option may be exercised in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the
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Prospectuses upon written or telegraphic notice by the Representatives to the
Company and the Selling Stockholders setting forth the number of shares of the
U.S. Option Securities as to which the several U.S. Underwriters are exercising
the option and the Settlement Date. Delivery of certificates for the shares of
Option Securities, and payment therefor, shall be made as provided in Section 3
hereof. The maximum number of shares of the U.S. Option Securities to be
purchased by each U.S. Underwriter shall be the same percentage of the total
number of shares of the U.S. Option Securities to be purchased by the several
U.S. Underwriters as such Underwriter is purchasing of the U.S. Underwritten
Securities, subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the U.S.
Underwritten Securities and the U.S. Option Securities (if the option provided
for in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made at 7:00 AM, California
time, on August __, 1997, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives and the
International Representatives shall designate, which date and time may be
postponed by agreement among the Representatives, the International
Representatives, the Company and the Selling Stockholders or as provided in
Section 9 hereof (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the U.S. Securities shall
be made to the Representatives for the respective accounts of the several U.S.
Underwriters against payment by the several U.S. Underwriters through the
Representatives of the respective aggregate purchase prices of the U.S.
Securities being sold by the Company and each of the Selling Stockholders to or
upon the order of the Company and the Selling Stockholders by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the U.S. Underwritten Securities and the U.S. Option Securities shall be made
through the facilities of The Depository Trust Company unless the U.S.
Representatives shall otherwise instruct.
Each Selling Stockholder will pay all applicable state transfer
taxes, if any, involved in the transfer to the several U.S. Underwriters of the
U.S. Securities to be urchased by them from such Selling Stockholder and the
respective U.S. Underwriters will pay any additional stock transfer taxes
involved in further transfers.
If the option provided for in Section 2(b) hereof is exercised
after the third business day prior to the Closing Date, the Company and the
Selling Stockholders will deliver the U.S. Option Securities (at the expense of
the Company) to the Representatives on the date specified by the Representatives
(which shall be within three Business Days after exercise of said option)
against payment of the purchase price thereof to or upon the order of the
Company and the Selling Stockholders by wire transfer payable in same-day funds
to an account specified by each of the Company and the Selling Stockholders. If
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settlement for the U.S. Option Securities occurs after the Closing Date, the
Company and such Selling Stockholders will deliver to the Representatives on the
Settlement Date for the Option Securities, and the obligation of the
Underwriters to purchase the U.S. Option Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 6 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the International Underwriting
Agreement, and that the Settlement Date, if any, shall occur simultaneously with
the "Settlement Date" under the International Underwriting Agreement.
4. Offering by Underwriters. It is understood that the several
U.S. Underwriters propose to offer the U.S. Securities for sale to the public as
set forth in the U.S. Prospectus.
5. Agreements. (a) The Company agrees with the several U.S.
Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Pros pectuses or any
Rule 462(b) Registration Statement unless the Company has furnished you
a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectuses
is otherwise required under Rule 424(b), the Company will cause the
Prospectuses, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. The Company will promptly
advise the Representatives (A) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (B) when
the Prospectuses, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(C) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (D) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Prospectuses or of any
additional information, (E) of the issuance by the Commission of any
stop
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order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (F) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance
of any such stop order or the suspension of any such qualification and,
if issued, to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which either of the Pro spectuses as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement either of
the Prospectuses to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (A) prepare and
file with the Commission, subject to the second sentence of paragraph
(a)(i) of this Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance and (B) supply any
supplemented Prospectuses to you in such quantities as you may
reasonably request.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and the Subsidiary which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(iv) The Company will furnish to the Representatives and counsel
for the U.S. Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
U.S. Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by a U.S. Underwriter
or dealer may be required by the Act or otherwise required, as many
copies of each U.S. Preliminary Prospectus and the U.S. Prospectus and
any supplement thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing or other production of all
documents relating to the offering.
(v) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will pay any fee of the National Association of Secu rities Dealers,
Inc., in connection with its review of the offering; provided that in no
event shall the Company be obligated to qualify to do business in any
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jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(vi) The Company will not, for a period of 90 days following the
Execution Time, without the prior written consent of Salomon Brothers
Inc (which consent shall not be unreasonably withheld), offer, sell or
contract to sell, pledge or otherwise dispose of, or file a registration
statement with the Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act with
respect to, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock,
or publicly announce an intention to effect any such transaction (except
for the shares offered hereby); provided, however, that the Company may
grant options and other rights and issue and sell Common Stock pursuant
to any employee stock option plan, stock ownership plan or dividend
reinvestment plan of the Company in effect at the Execution Time and the
Company may issue Common Stock issuable upon the conversion of
securities or the exercise of warrants outstanding at the Execution
Time.
(b) Each Selling Stockholder agrees with the several U.S.
Underwriters that such Selling Stockholder will not during the period of 90 days
following the Execution Time, without the prior written consent of the Salomon
Brothers Inc, offer, sell or contract to sell, pledge or otherwise dispose of,
or file a registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act with respect to,
any shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction (except for the shares offered hereby),
subject to certain limitations as set forth in the "Lockup Agreement" attached
as Exhibit A.
(c) Each U.S. Underwriter agrees that (i) it is not purchasing
any of the U.S. Securities for the account of anyone other than a United States
or Canadian Person, (ii) it has not offered or sold, and will not offer or sell,
directly or indirectly, any of the U.S. Securities or distribute any U.S.
Prospectus to any person outside the United States or Canada, or to anyone other
than a United States or Canadian Person, and (iii) any dealer to whom it may
sell any of the U.S. Securities will represent that it is not purchasing for the
account of anyone other than a United States or Canadian Person and agree that
it will not offer or resell, directly or indirectly, any of the U.S. Securities
outside the United States or Canada, or to anyone other than a United States or
Canadian Person or to any other dealer who does
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not so represent and agree; provided, however, that the foregoing shall not
restrict (A) purchases and sales between the U.S. Underwriters on the one hand
and the International Underwriters on the other hand pursuant to the Agreement
Between U.S. Underwriters and International Underwriters, (B) stabilization
transactions contemplated under the Agreement Between U.S. Underwriters and
International Underwriters, conducted through Salomon Brothers Inc (or through
the Representatives and International Representatives) as part of the
distribution of the Securities, and (C) sales to or through (or distributions of
U.S. Prospectuses or U.S. Preliminary Prospectuses to) persons who are United
States or Canadian Persons who are investment advisors, or who otherwise
exercise investment discretion, and who are purchasing for the account of anyone
other than a United States or Canadian Person.
(d) The agreements of the U.S. Underwriters set forth in
paragraph (c) of this Section 5 shall terminate upon the earlier of the
following events:
(i) a mutual agreement of the Representatives and the
International Representatives to terminate the selling restrictions set
forth in paragraph (c) of this Section 5 and in Section 5(b) of the
International Underwriting Agreement; or
(ii) the expiration of a period of 30 days after the Closing
Date, unless (A) the U.S. Representatives shall have given notice to the
Company and the Representatives that the distribution of the U.S.
Securities by the U.S. Underwriters has not yet been completed, or (B)
the Representatives shall have given notice to the Company and the U.S.
Underwriters that the distribution of the International Securities by
the International Underwriters has not yet been completed. If such
notice by the Representatives or the International Representatives is
given, the agreements set forth in such paragraph (b) shall survive
until the earlier of (1) the event referred to in clause (i) of this
subsection (c) or (2) the expiration of an additional period of 30 days
from the date of any such notice.
6. Conditions to the Obligations of the Underwriters. The
obligations of the U.S. Underwriters to purchase the U.S. Underwritten
Securities and the Option Securities, as the case may be, shall be subject to
the accuracy of the representations and warranties on the part of the Company
and the Selling Stockholders contained herein as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company and the Selling Stockholders made in
any certificates pursuant to the provisions hereof, to the performance by the
Company and the Selling Stock holders of their respective obligations hereunder
and to the following additional conditions:
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(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement shall have become effective not
later than (i) 3:00 PM California time, on the date of determination of
the public offering price, if such determination occurred at or prior to
12:00 Noon California time on such date or (ii) 6:30 AM on the Business
Day following the day on which the public offering price was determined,
if such determination occurred after 12:00 Noon California time on such
date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to the applicable paragraph of Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Xxxxxx Godward LLP, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties
and conduct its business as described in the Prospectuses, and,
to the best of such counsel's knowledge, is duly qualified to do
business as a foreign corporation and is in good standing under
the laws of each jurisdiction wherein it owns or leases material
properties or conducts material business, except where the
failure to be so qualified would not have a material adverse
effect on the financial condition, earnings, operations or
business of the Company and the Subsidiary, taken as a whole;
(ii) all the outstanding shares of capital stock of the
Subsidiary has been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectuses, all outstanding shares of capital
stock of the Subsidiary are owned of record by the Company free
and clear of, to the knowledge of such counsel, any security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is
as set forth in the Prospectuses under the caption
"Capitalization"; the capital stock of the Company conforms in
all material respects to the description thereof contained in
the Prospectuses under the caption "Description of Capital
Stock"; the outstanding shares of Common Stock (including the
Securities
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being sold hereunder by the Selling Stockholders) have been duly
and validly authorized and issued and are fully paid and
nonassessable; the Securities being sold hereunder by the
Company have been duly and validly authorized, and, when issued
and delivered to and paid for by the U.S. Underwriters pursuant
to this Agreement and by the International Underwriters pursuant
to the International Underwriting Agreement, will be fully paid
and nonassessable; the Securities being sold hereunder are duly
authorized for listing, subject to official notice of issuance
and evidence of satisfactory distri bution; the certificates for
the "Common Stock" in the form filed as an exhibit to the
Company's Registration Statement on Form 8-A filed with the
Commission in January 19, 1996 are in valid and sufficient form;
and the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or, to the best of such
counsel's knowledge, other rights to sub scribe for the
Securities; and, except as set forth in the Prospectuses, to the
best of such counsel's knowledge, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any
securities for, shares of capital stock of the Company are
outstanding;
(iv) to the knowledge of such counsel, (a) there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator to which the Company or the Subsidiary is a party of
a character required to be described in the Registration
Statement under the Act and the rules and regulations of the
Commission thereunder (the "Rules") which is not adequately
described in the Prospectuses, and (b) there is no franchise,
contract or other document of a character required to be
described in the Registration Statement or Prospectuses under
the Act and the Rules, or to be filed as an exhibit thereto,
which is not described or filed as required; and the statements
in the Prospectuses under the heading "Risk Factors -
Intellectual Property and Proprietary Rights," insofar as such
statements constitute a summary of legal matters, documents or
proceedings referred to therein, fairly summarize such legal
matters, documents and proceedings, to the extent required by
the Act and the Rules;
(v) the Registration Statement has become effective
under the Act; any required filing of the Prospectuses, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened
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and the Registration Statement and the Prospectuses (other than
the financial and statistical 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
thereunder;
(vi) this Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by
the Company;
(vii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectuses, will not be
an "investment company" as defined in the Investment Company Act
of 1940, as amended;
(viii) no consent, approval, authorization, filing with
or order of any court or governmental agency or body is required
by the Company in connection with the transactions contemplated
herein, except such as have been obtained under the Act and such
as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in
this Agreement and the International Underwriting Agreement and
in the Prospectuses and such other approvals (specified in such
opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein or in
the International Underwriting Agreement contemplated nor the
fulfillment of the terms hereof or thereof conflict with, result
in a breach or violation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the
Subsidiary pursuant to, (i) the charter or by-laws of the
Company or the Subsidiary or (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or the Subsidiary is a party or
bound or to which its property is subject and that would be
required to be filed with the Commission in connection with a
registration statement of the Company on Form S-1 if filed as of
the date hereof, or (iii) any statute, law, rule or regulation
(except that such counsel need not opine as to requirements
under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters), or, to the knowledge of such counsel, any
judgment, order or decree applicable to the Company or the
Subsidiary of any court, regulatory body, administrative agency,
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governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its or their properties;
and
(x) to the knowledge of such counsel, no holders of
securities of the Company have rights to the registration of
such securities under the Registration Statement, except for
such rights of persons identified in such opinion, which have
been effectively waived.
In addition, such opinion shall state that in connection with the
preparation of the Registration Statement and the Prospectuses, such
counsel has participated in conferences with officials and other
representatives of the Company, the Representatives, Underwriters'
counsel and the independent certified public accountants of the Company,
at which such conference the contents of the Registration Statement and
Prospectuses and related matters were discussed and, although they have
not verified the accuracy of completeness of the statements contained in
the Registration Statement or the Prospectuses, nothing has come to
their attention which leads them to believe that on the Effective Date,
the Registration Statement (other than the financial statements,
including supporting schedules and other financial and statistical
information contained therein, as to which they make no comment)
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, the Prospectuses as of their date or
as of the Closing Date (other than the financial statements, including
supporting schedules and other financial and statistical information
contained therein, as to which they make no comment), contained or
contains any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of California, the Delaware General Corporation Law or the Federal
laws of the United States, to the extent they deem proper and specified
in such opinion, upon the opinion of other counsel of good standing whom
they believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials. References to the Prospectuses in this paragraph (b)
include any supplements thereto at the Closing Date.
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(c) Each of the Selling Stockholders shall have furnished to the
Representatives the opinion of counsel for such Selling Stockholder
acceptable to the Representatives, dated the Closing Date, to the effect
that:
(i) this Agreement, the International Underwriting
Agreement, the Custody Agreement and the Power-of-Attorney have
been duly authorized, executed and delivered by or on behalf of
such Selling Stockholders, the Custody Agreement is valid and
binding on such Selling Stockholders, subject to applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium
or other similar laws affecting creditors' rights, and subject to
general principles of equity and to limitations or availability
of equitable relief, including specific performance; and each
Selling Stockholder that is an entity, has full power and
authority under its organizational documents, to sell, transfer
and deliver in the manner provided in this Agreement, the
International Underwriting Agreement, and the Custody Agreement,
the Securities being sold by such Selling Stockholder hereunder;
(ii) the delivery by such Selling Stockholder to the
several U.S. Underwriters of certificates for the Securities
being sold hereunder with due endorsement for transfer by such
Selling Stockholder against payment therefor as provided herein,
will pass valid title to such Securities to the several U.S.
Underwriters, free and clear of all liens, encumbrances, equities
and claims whatsoever;
(iii) to the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental
agency or body is required for the consummation by such Selling
Stockholder of the transactions contemplated herein, except such
as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities
by the U.S. Underwriters and such other approvals (specified in
such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by such
Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by such Selling Stockholder or
the fulfillment of the terms hereof by such Selling Stockholder
will conflict with, result in a breach or violation of, or
constitute a default under any law (except that such counsel need
not opine as to requirements under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters) or, where applicable, the
organizational documents of such Selling Stockholder or the terms
of any indenture or
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other agreement or instrument known to such counsel and to which
such Selling Stockholder or any of its subsidiaries is a party
or bound, or any judgment, order or decree known to such counsel
to be applicable to such Selling Stockholder or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
such Selling Stockholder or any of its subsidiaries.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than those
in which such counsel is expert (which jurisdictions shall be disclosed
in such opinion) to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters, and (B) as to matters of fact, to the extent they deem
proper and where applicable, on certificates of responsible officers of
the Selling Stockholders and public officials.
(d) The Representatives shall have received from Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the U.S.
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectuses (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and
the Company and each Selling Stockholder shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectuses, any supplements to the Prospectuses and this Agreement and
that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
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(iii) since the date of the most recent financial
statements included in the Prospectuses (exclusive of any
supplement thereto), there has been no material adverse change in
the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiary, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement
thereto).
(f) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed by or on behalf of such Selling
Stockholder or, where applicable, the Chairman of the Board or the
President and the principal financial or accounting officer of such
Selling Stockholder, dated the Closing Date, to the effect that the
representations and warranties of such Selling Stockholder in this
Agreement are true and correct in all material respects on and as of the
Closing Date to the same effect as if made on the Closing Date.
(g) At the Execution Time and at the Closing Date, Coopers &
Xxxxxxx L.L.P. shall have furnished to the Representatives letters,
dated respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and
the Exchange Act and the respective applicable published rules and
regulations thereunder and that they have performed a review of the
unaudited interim financial information of the Company for the six-month
period ended June 30, 1997 and as at June 30, 1997, in accordance with
Statement on Accounting Standards No. 71 and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Registration Statement and the Prospectuses and reported on
by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Ex change
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and the
Subsidiary; their review, in accordance with standards
established under Statement on Auditing Standards No. 71, of the
unaudited interim financial information as indicated in their
reports incorporated in the Registration Statement and the
Prospectus; carrying out certain specified procedures (but not
an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and executive, finance and audit
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committees of the Company and the Subsidiaries; and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and the
Subsidiary as to transactions and events subsequent to June 30,
1997, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the
Prospectuses do not comply in form in all material
respects with applicable accounting requirements and with
the published rules and regulations of the Commission with
respect to financial statements included or incorporated
in quarterly reports on Form 10-Q under the Exchange Act;
and said unaudited financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of
the audited financial statements included or incorporated
in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to June
30, 1997, there were any changes, at a specified date not
more than five days prior to the date of the letter, in
the long-term liabilities of the Company and the
Subsidiary or capital of the Company or decreases in the
stockholders' equity of the Company or decreases in
working capital of the Company and the Subsidiary as
compared with the amounts shown on the June 30, 1997
consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectuses, or for the
period from July 1, 1997 to such specified date there were
any decreases, as compared with the six-month period ended
June 30, 1996 in net sales or income or in total or per
share amounts of net income of the Company and the
Subsidiary, or in income (loss) before income taxes
provision (benefit) and extraordinary debt extinguishment
costs, income tax provision (benefit), net income (loss)
before extraordinary debt extinguishment costs, or in
extraordinary debt extinguishment costs, net of income
taxes, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall
be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives;
(3) if the information included in the Registration
Statement and Prospectus in response to Regulation S-K,
Item 301 (Selected
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Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation) and Item
503(d) (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements
of Regulation S-K; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and the Subsidiary) set forth in the Registration
Statement and the Prospectuses, including the information set
forth under the captions "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business" in
the Prospectuses, the information included or incorporated in
Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form
10-K (or incorporated by reference therein), incorporated in the
Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Prospectus,
agrees with the accounting records of the Company and the
Subsidiary, excluding any questions of legal interpretation.
References to the Prospectuses in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectuses (exclusive of any
supplement thereto), there shall not have been (i) any change specified
in the letter or letters referred to in paragraph (g) of this Section 6
or (ii) any change, or any development involving a prospective change,
in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and the Subsidiary, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Prospectuses (exclusive of any supplement
thereto).
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(i) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto from each executive officer and director of the Company and
certain stockholders of the Company addressed to the Representatives, in
which each such person agrees not to offer, sell, contract to sell,
pledge or otherwise dispose of, or file a registration statement with
the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act with respect to, any shares of
capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce
an intention to effect any such transaction (except the shares offered
hereby and by the International Underwriting Agreement), for a period of
90 days after the Execution Time, other than as set forth therein.
(j) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(k) The Company shall have caused the Securities to be eligible
for trading on the Nasdaq National Market upon issuance.
(l) Prior to the Closing Date, the Company and each Selling
Stockholder shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
(m) The closing of the purchase of the International Underwritten
Securities to be issued and sold by the Company and sold by the Selling
Stockholders pursuant to the International Underwriting Agreement shall
occur concurrently with the closing described herein.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
U.S. Underwriters, this Agreement and all obligations of the U.S. Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company and
each Selling Stockholder in writing or by telephone or facsimile confirmed in
writing.
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The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxxx Godward LLP, counsel for the Company, at Five
Palo Alto Square, 3000 El Camino Real, Palo Alto, California, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the U.S. Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company or any Selling
Stockholder to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the U.S. Underwriters, the Company
will reimburse the U.S. Underwriters severally through Salomon Brothers Inc on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities. If the Company is
required to make any payments to the U.S. Underwriters under this Section 7
because any Selling Stockholder's refusal, inability or failure to satisfy any
condition to the obligations of the U.S. Underwriters set forth in Section 6,
the Selling Stockholders pro rata in proportion to the percentage of Securities
to be sold by each shall reimburse the Company on demand for all amounts so
paid.
8. Indemnification and Contribution. (a) The Company, jointly and
severally, and each of Summit Ventures III, L.P., Summit Ventures IV, L.P.,
Summit Investors II. L.P. and Summit Subordinated Debt Fund (collectively,
"Summit") severally, agrees to indemnify and hold harmless each U.S.
Underwriter, the directors, officers, employees and agents of each U.S.
Underwriter and each person who controls any U.S. Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectuses, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action (provided that Summit shall not be liable
under such indemnity for any untrue statement or alleged untrue statement or any
omission or alleged omission in the Preliminary Prospectus if Summit provided
corrected information in writing to the Company or its counsel for inclusion in
the final Prospectuses and the corrected information was not so included or such
final Prospectuses were not properly
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delivered by the Company and/or the U.S. Underwriters); provided, however, that
the Company and Summit 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
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any U.S. Underwriter
through the Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company or Summit may
otherwise have. Notwithstanding the foregoing, each U.S. Underwriter agrees that
it shall not make demand on Summit for indemnification hereunder until, and
except to the extent that, such Underwriter shall have made demand on the
Company for indemnification hereunder and the Company shall not have paid the
same within 30 days after such demand.
(b) Each Selling Stockholder other than Summit severally and not
jointly agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, each U.S.
Underwriter, the directors, officers, employees and agents of each U.S.
Underwriter and each person who controls the Company or any U.S. Underwriter
within the meaning of either the Act or the Exchange Act and each other Selling
Stockholder to the same extent as the foregoing indemnity from the Company to
each U.S. Underwriter, but only with reference to written information furnished
to the Company by or on behalf of such Selling Stockholder specifically for use
in the preparation of the documents referred to in the foregoing indemnity
(provided that no Selling Stockholder shall be liable under such indemnity for
any untrue statement or alleged untrue statement or any omission or alleged
omission in the Preliminary Prospectus if such Selling Stockholder provided
corrected information in writing to the Company or its counsel for inclusion in
the final Prospectuses and the corrected information was not so included or such
final Prospectuses were not properly delivered by the Company and/or the U.S.
Underwriters). This indemnity agreement will be in addition to any liability
which any Selling Stockholder may otherwise have.
(c) Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act and each Selling Stockholder and
each person who controls such Selling Stockholder, to the same extent as the
foregoing indemnity from the Company to each U.S. Underwriter, but only with
reference to written information relating to such U.S. Underwriter furnished to
the Company by or on behalf of such U.S. Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any U.S. Underwriter may otherwise have. The Company and each Selling
Stockholder acknowledge that the statements set forth in the paragraph of the
cover page regarding delivery of the Securities, the stabilization legend in
block capital letters on page 2 and,
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under the heading "Underwriting", (i) the sentences related to concessions and
reallowances and (ii) the paragraph related to stabilization in any U.S. or
International Preliminary Prospectus and the Prospectuses constitute the only
information furnished in writing by or on behalf of the several U.S.
Underwriters for inclusion in any U.S. or International Preliminary Prospectus
or the Prospectuses.
(d) Promptly after receipt by an indemnified party under this
Section 8 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 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a), (b) or (c) above unless
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a), (b) or (c) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnify ing party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. It is understood, however, that the Company
shall, in connection with any one such 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 reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such U.S. Underwriters and controlling persons,
which firm shall be designated in writing by Salomon Brothers Inc. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment
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with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company, the Selling Stockholders and
the U.S. Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the Company, one or more of the Selling Stockholders and one or more of
the U.S. Under writers may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the Selling
Stockholders, on the one hand, and by the U.S. Underwriters, on the other, from
the offering of the U.S. Securities; provided, however, that in no case shall
any U.S. Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the U.S. Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable to
the Securities purchased by such U.S. Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company, the Selling Stockholders and the U.S. Underwriters shall contribute
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, of the Selling Stockholders and of
the U.S. Underwriters in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and by the Selling Stockholders shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) received by each of them, and benefits received by the U.S.
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Prospectuses.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company, the Selling Stockholders on the one hand or the U.S. Underwriters on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Selling Stockholders and the U.S. Underwriters agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (e), 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. For purposes
of this Section 8, each person who controls a U.S. Underwriter within the
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meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and provisions of this paragraph (e).
(f) The liability of each Selling Stockholder (other than Summit) under
such Selling Stockholder's representations and warranties contained in Section 1
hereof and under the indemnity and contribution agreements contained in this
Section 8 shall be limited to an amount equal to the net initial public offering
price of the U.S. Securities sold by such Selling Stockholders to the U.S.
Underwriters (before deducting expenses). The liability of Summit under its
representations and warranties contained in Section 1 hereof and under the
indemnity and contribution agreements contained in this Section 8 shall be
limited to the lesser of (i) an amount equal to the net initial public offering
price of the U.S. Securities sold by Summit to the U.S. Underwriter (before
deducting expenses), and (ii) Summit's proportionate share of the aggregate
liability, based on the number of shares sold by it. The Company and the Selling
Stockholders may agree, as among themselves, and without limiting the rights of
the U.S. Underwriters, under this Agreement, as to the respective amounts of
such liability for which they each shall be responsible.
9. Default by an Underwriter. If any one or more U.S.
Underwriters shall fail to purchase and pay for any of the U.S. Securities
agreed to be purchased by such U.S. Underwriter or U.S. Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining U.S. Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of U.S. Securities set forth opposite their names
in Schedule I hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining U.S. Underwriters) the U.S. Securities
which the defaulting U.S. Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of U.S.
Securities which the defaulting U.S. Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of U.S. Securities
set forth in Schedule I hereto, the remaining U.S. Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the U.S. Securities, and if such nondefaulting U.S. Underwriters do not purchase
all the U.S. Securities, this Agreement will terminate without liability to any
nondefaulting U.S. Underwriter, the Selling Stockholders or the Company. In the
event of a default by any U.S. Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectuses or in any other documents or
arrangements may be effected. Nothing contained in this
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Agreement shall relieve any defaulting U.S. Underwriter of its liability, if
any, to the Company, the Selling Stockholders and any nondefaulting U.S.
Underwriter for damages occasioned by its default hereunder.
10. Effective Date of Agreement and Termination. This Agreement
shall become effective at such time (after notification of the effectiveness of
the Registration Statement has been released by the Commission) as the
Underwriters, the Selling Stockholders and the Company shall agree on the
initial public offering price and underwriting discount per share, unless prior
to such time such of the Underwriters as have agreed to purchase in the
aggregate 50% or more of the Securities shall have given notice to the Company
that such Underwriters elect that this Agreement and the International
Underwriting Agreement shall not become effective; provided, however, that the
provisions of this Section 10 and of Section 8 hereof shall at all times be
effective. If this Agreement shall not have become effective prior to 2:00 PM,
California time, on the seventh full business day after the Effective Date, this
Agreement shall not thereafter become effective unless such period is extended
by agreement among the Underwriters, the Selling Stockholders and the Company.
This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to
delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's 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 the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or National Market, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the reasonable judgment of
the Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Stockholder and of the U.S.
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
U.S. Underwriter, any Selling Stockholder or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the U.S. Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
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12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Salomon Brothers Inc General Counsel (fax no.:
(000) 000-0000) and confirmed to the General Counsel, care of Salomon Brothers
Inc, at Seven Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
(000) 000-0000 and confirmed to it at 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
00000, attention of Xxxxx X. Xxxxxx, Chief Financial Officer, with a copy to
Xxxxx X. Xxxxx, Esq., Cooley Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (fax no.: (000) 000-0000); or if sent to the
Selling Stockholders, will be mailed, delivered or telegraphed and confirmed to
them at the addresses set forth in Schedule II hereto.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City
or the State of California.
"Effective Date" shall mean each date and time that the
Registration State ment, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
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"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as so
amended or such Rule 462(b) Registration Statement, as the case may be.
Such term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 424," "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration statement.
"U.S. Preliminary Prospectus" and the "International Preliminary
Prospectus," respectively, shall mean any preliminary prospectus with
respect to the offering of the U.S. Securities and the International
Securities, as the case may be, referred to in the first paragraph set
forth above and any preliminary prospectus with respect to the offering
of the U.S. Securities and the International Securities, as the case may
be, included in the Registration Statement at the Effective Date that
omits Rule 430A Information; and the U.S. Preliminary Prospectus and the
International Preliminary Prospectus are hereinafter collectively called
the "Preliminary Prospectuses."
"United States or Canadian Person" shall mean any person who is
a national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws
of the United States or Canada or of any political subdivision thereof,
or any estate or trust the income of which is subject to United States
or Canadian Federal income taxation, regardless of its source (other
than any non-United States or non-Canadian branch of any United States
or Canadian Person), and shall include any United States or Canadian
branch of a person other than a United States or Canadian Person. "U.S."
or "United
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States" shall mean the United States of America (including the states
thereof and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
HMT Technology Corporation
By:_____________________
[Title]
Selling Stockholders
By:_____________________
Attorney-in-Fact
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx & Xxxxx LLC
Xxxxxxxxx, Xxxxxxxx & Company LLC
By: Salomon Brothers Inc
By: _______________________
[Title]
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
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SCHEDULE I
NUMBER OF SHARES
TO BE
UNDERWRITERS PURCHASED
------------ ---------
Salomon Brothers Inc . . . . . . .
Alex. Xxxxx & Sons Incorporated
Xxxxxxxxx & Xxxxx LLC
Xxxxxxxxx, Xxxxxxxx & Company LLC
---------
Total . . . . . . . . . 8,500,000
=========
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SCHEDULE II
NUMBER OF UNDERWRITTEN
SECURITIES TO BE
SELLING STOCKHOLDERS/ADDRESSES SOLD
------------------------------ ----------------------
Summit Ventures III, L.P.
[Address]
Summit Ventures IV, L.P.
[Address]
Summit Investors II. L.P.
[Address]
Summit Subordinated Debt Fund L.P.
[Address]
Hitachi Metals, Ltd.
[Address]
Xxxxxx X. Xxxxxxx
[Address]
Xxxxxxx X. Xxxxxx
[Address]
Xxxxxx X. Xxxx
[Address]
Xxxxxx X. Xxxxxxx
[Address]
Xxxxx X. Xxxxxx
[Address]
Crossroads SF Limited Partnership
[Address]
Xxxxxx X. Xxxxxxx
[Address]
Crossroads Capital II Limited Partnership
[Address]
Xxxxx X. Xxxxxxx
[Address]
Crossroads DPT Limited Partnership
[Address]
--------------
Total . . . . . . . . .
==============
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EXHIBIT A
[Lockup Agreement]
37
