1
EXHIBIT 1.1
2,800,000 SHARES
SKILLSOFT CORPORATION
COMMON STOCK, PAR VALUE $.001 PER SHARE
UNDERWRITING AGREEMENT
July __, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
BANC OF AMERICA SECURITIES LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. SkillSoft Corporation, a Delaware corporation
("COMPANY"), proposes to issue and sell 2,000,000 shares of its Common Stock,
par value $.001 per share ("SECURITIES"), and the stockholders listed in
Schedule A hereto ("FIRM SELLING STOCKHOLDERS") propose to sell an aggregate of
800,000 outstanding shares of the Securities (such 2,800,000 shares of
Securities being hereinafter referred to as the "FIRM SECURITIES"). The Company
also proposes to issue and sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 365,000 additional shares of its
Securities and the stockholders listed in Schedule B hereto ("OPTIONAL SELLING
STOCKHOLDERS" and with the Firm Selling Stockholders, the "SELLING
STOCKHOLDERS") also propose to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 55,000 additional outstanding shares
of Securities, as set forth below (such 420,000 additional shares of Securities
being hereinafter referred to as the "OPTIONAL SECURITIES"). The Firm Securities
and the Optional Securities are herein collectively called the "OFFERED
SECURITIES." The Company and the Selling Stockholders hereby agree with the
several Underwriters named in Schedule C hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
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(i) A registration statement (No. 333-61626) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and either (A) has been
declared effective under the Securities Act of 1933 ("ACT") and is not
proposed to be amended or (B) is proposed to be amended by amendment or
post-effective amendment. If such registration statement ("INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement ("ADDITIONAL REGISTRATION STATEMENT")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the Act
or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and delivery of
this Agreement, the additional registration statement means (A) if the
Company has advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission. If
an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with respect
to such additional registration statement means the date and time as of
which such registration statement is filed and becomes effective pursuant
to Rule 462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all material incorporated by
reference therein, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration
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statement pursuant to the General Instructions of the Form on which it is
filed and including all information (if any) deemed to be a part of the
initial registration statement as of its Effective Time pursuant to Rule
430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as the
"INITIAL REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including all
information (if any) deemed to be a part of the additional registration
statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter
referred to as the "ADDITIONAL REGISTRATION STATEMENT". The Initial
Registration Statement and the Additional Registration Statement are herein
referred to collectively as the "REGISTRATION STATEMENTS" and individually
as a "REGISTRATION STATEMENT". The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no such
filing is required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission ("RULES AND REGULATIONS")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the requirements of
the Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or will
not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (C) on the date
of this Agreement, the Initial Registration Statement and, if the Effective
Time of the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. If the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit
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to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification (except where the
failure to be so qualified would not have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT")).
(iv) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction
of its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
have a Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock
of each subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company, including the Offered Securities to
be delivered by the Selling Stockholders, are, and, when the Offered
Securities to be delivered by the Company have been delivered and paid for
in accordance with this Agreement on each Closing Date (as defined below),
such Offered Securities to be delivered by the Company will have been,
validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Offered
Securities.
(vi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
this offering.
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(vii) Except as described in the Prospectus, and except for rights
with respect to this offering which have been validly waived, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act.
(viii) The Offered Securities to be delivered by the Selling
Stockholders are listed on the Nasdaq Stock Market's National Market. The
Company has filed with the Nasdaq Stock Market's National Market a Nasdaq
Notification for the Listing of Additional Shares covering the Offered
Securities to be delivered by the Company.
(ix) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and such
as may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement, and
the issuance and sale of the Offered Securities, will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or any
such subsidiary is subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full power and authority to authorize,
issue and sell the Offered Securities to be delivered by the Company as
contemplated by this Agreement.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and,
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
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(xiii) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xv) Except as disclosed in the Prospectus, the Company and its
subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the
business now operated by them and have not received any notice of
infringement of or conflict with asserted rights of others with respect to
any intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or proceedings
are threatened or, to the Company's knowledge, contemplated.
(xvii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis.
(xviii) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole; and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
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(xix) Except as described in the Prospectus (or as outstanding under
stock option plans described in the Prospectus), there are no outstanding
(A) securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (B) warrants, rights or
options to subscribe for or purchase from the Company any such capital
stock or any such convertible or exchangeable securities or obligations or
(C) obligations of the Company to issue any such capital stock, convertible
or exchangeable securities or obligations, or warrants, rights or
obligations.
(xx) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient in all material respects for purposes of the
prevention or detection of errors or irregularities in amounts that could
be expected to be material to the Company's financial statements and the
recording of transactions so as to permit the preparation of such financial
statements in conformity with generally accepted accounting principles.
(xxi) Neither the Company nor any of its subsidiaries is in violation
of (A) its charter or by-laws or (B) except as described in the Prospectus,
any statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company or
any such subsidiary or any of their respective properties; and no event of
default (or event which with the giving of notice or the lapse of time, or
both, would constitute an event of defaults) exists under any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, except, in
each case, for violations or events of default that, individually or in the
aggregate, do not have, and are reasonably likely not to have, a Material
Adverse Effect.
(xxii) The Company and its subsidiaries carry or are entitled to the
benefits of insurance in such amounts and covering such risks as the
Company believes are generally maintained by companies of established
repute engaged in the same or a similar business, and all such insurance is
in full force and effect.
(xxiii) The Company has not taken and will not take, directly or
indirectly, any action designed to or that could cause or result in the
stabilization or manipulation of the price of the Offered Securities to
facilitate the sale or resale of the Offered Securities.
(xxiv) The Company is not and, after giving effect to the offering and
sale of the Offered Securities of the Company and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
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(i) Such Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered Securities
to be delivered by such Selling Stockholder on such Closing Date and full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date hereunder; and upon the delivery
of and payment for the Offered Securities on each Closing Date hereunder
the several Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act
and the Rules and Regulations and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all material respects
to the requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of material fact and did
not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
(C) on the date of this Agreement, the Initial Registration Statement and,
if the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the Effective
Date of the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and the Rules and
Regulations and does not include, or will not include, any untrue statement
of a material fact or does not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (D) the materials incorporated by
reference in the Registration Statement, as of their respective filing
dates, complied as to form in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder. If the Effective Time
of the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will not include any untrue statement of a material fact or will
not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. With respect to
Warburg, ▇▇▇▇▇▇ Ventures, L.P. ("WARBURG PINCUS"), one of the Firm Selling
Stockholders, the two preceding sentences apply only to the extent that any
statements in or omissions from a Registration Statement or the Prospectus
are based upon information relating to Warburg Pincus (A) with respect to
the litigation among the Company, Warburg Pincus, National Education
Training Group, Inc. and certain executive
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officers and employees of the Company that appears under the captions "Risk
Factors" and "Business-- Legal Proceedings" or (B) that appears under the
caption "Principal and Selling Stockholders" (the "WARBURG PINCUS
INFORMATION"). With respect to all other Selling Stockholders (the "INSIDE
SELLING STOCKHOLDERS"), such two sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(c) hereof.
(iii) This Agreement has been duly authorized (with respect to Warburg
Pincus and the Inside Selling Stockholders that are trusts), executed and
delivered by such Selling Stockholder.
(iv) Except as described in the Prospectus, no consent, approval,
authorization or order of, or filing with, any governmental agency or body
or any court is required to be obtained or made for the consummation by
such Selling Stockholder of the transactions contemplated by this
Agreement, except such as have been or will be obtained or made prior to
the First Closing Date.
(v) The execution, delivery and performance by such Selling
Stockholder of this Agreement, the sale of the Offered Securities to be
sold by such Selling Stockholder and the consummation by such Selling
Stockholder of any of the other transactions herein contemplated, do not
and will not conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute or will constitute a default (or an
event which with the giving of notice or the lapse of time or both would
constitute a default) under, or result in the creation or imposition of any
lien, charge or encumbrance upon the Offered Securities under (A) the trust
agreement (if such Selling Stockholder is a trust) or partnership agreement
(with respect to Warburg Pincus) of such Selling Stockholder, (B) except as
described in the Prospectus, any statute, rule, regulation, requirement,
order or decree of any governmental agency or body of any court having
jurisdiction over such Selling Stockholder or any of its properties, assets
or operations or (C) any indenture, mortgage, loan or credit agreement,
note, lease, permit, license or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder is
bound or to which any of the properties, assets or operations of such
Selling Stockholder is subject, except in the case of clauses (B) and (C),
any such event that does not adversely affect the ability of such Selling
Stockholder to consummate the transactions contemplated hereunder.
(vi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling
Stockholder or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
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(vii) Except for the distribution of preliminary prospectuses that are
a part of the Registration Statements, such Selling Stockholder has not
taken and will not take, directly or indirectly, any action designed to or
that could cause or result in the stabilization or manipulation of the
price of the Offered Securities to facilitate the sale or resale of the
Offered Securities.
(c) Each Inside Selling Stockholder severally represents and warrants to,
and agrees with, the several Underwriters that:
(i) The execution, delivery and performance by such Selling
Stockholder of the Power of Attorney appointing certain individuals as such
Inside Selling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the
extent set forth therein with respect to the transactions therein
contemplated (the "POWER OF ATTORNEY") and the Custody Agreement between
such Inside Selling Stockholder and SkillSoft Corporation, as Custodian
("CUSTODIAN"), relating to the deposit of Offered Securities to be sold by
such Inside Selling Stockholder (the "CUSTODY AGREEMENT"), the sale of the
Offered Securities to be sold by such Inside Selling Stockholder and the
consummation by such Selling Stockholder of any of the other transactions
herein contemplated, do not and will not conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute or
will constitute a default (or an event which with the giving of notice or
the lapse of time or both would constitute a default) under, or result in
the creation or imposition of any lien, charge or encumbrance upon the
Offered Securities under (A) the trust agreement of such Inside Selling
Stockholder (if such Inside Selling Stockholder is a trust), (B) except as
described in the Prospectus, any statute, rule, regulation, requirement,
order or decree of any governmental agency or body of any court having
jurisdiction over such Inside Selling Stockholder or any of its properties,
assets or operations or (C) any indenture, mortgage, loan or credit
agreement, note, lease, permit, license or other agreement or instrument to
which such Inside Selling Stockholder is a party or by which such Inside
Selling Stockholder is bound or to which any of the properties, assets or
operations of such Inside Selling Stockholder is subject, except in the
case of clauses (B) and (C), any such event that does not adversely affect
the ability of such Inside Selling Stockholder to consummate the
transactions contemplated hereunder.
(ii) The Power of Attorney and related Custody Agreement with respect
to such Inside Selling Stockholder has been duly authorized (with respect
to Inside Selling Stockholders that are trusts), executed and delivered by
such Inside Selling Stockholder and constitute valid and legally binding
obligations of such Inside Selling Stockholder enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar law of general applicability
relating to or affecting creditors' rights and to general equity
principles.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and each Firm Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to
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purchase from the Company and each Firm Selling Stockholder, at a purchase price
of $_____ per share that number of Firm Securities (rounded up or down, as
determined by Credit Suisse First Boston Corporation ("CSFBC") in its
discretion, in order to avoid fractions) obtained by multiplying 2,000,000 Firm
Securities in the case of the Company and the number of Firm Securities set
forth opposite the name of such Firm Selling Stockholder in Schedule A hereto,
in the case of a Firm Selling Stockholder, in each case by a fraction the
numerator of which is the number of Firm Securities set forth opposite the name
of such Underwriter in Schedule C hereto and the denominator of which is the
total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by
the Inside Selling Stockholders hereunder have been placed in custody, for
delivery under this Agreement, under Custody Agreements made with the Custodian.
Each Inside Selling Stockholder agrees that the shares represented by the
certificates held in custody for such Inside Selling Stockholder under such
Custody Agreement are subject to the interests of the Underwriters hereunder,
that the arrangements made by such Inside Selling Stockholder for such custody
are to that extent irrevocable, and that the obligations of the such Inside
Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the death of any individual Inside Selling Stockholder or the
occurrence of any other event, or in the case of a trust, by the death of any
trustee or trustees or the termination of such trust. If any individual Inside
Selling Stockholder or any such trustee or trustees should die, or if any other
such event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had
not occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
The Company, Warburg Pincus and the Custodian will deliver the Firm
Securities to the Representatives for the accounts of the Underwriters against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of (i) the Company in the case of the 2,000,000 shares of Firm
Securities to be delivered by the Company, (ii) Warburg Pincus in the case of
the 600,000 shares of Firm Securities to be delivered by Warburg Pincus and
(iii) the Custodian in the case of the 200,000 shares of Firm Securities to be
delivered by the Inside Selling Stockholders at the office of ▇▇▇▇ and ▇▇▇▇ LLP,
at 9:00 A.M., New York time, on ________, 2001 or at such other time not later
than seven full business days thereafter as CSFBC and the Company determine,
such time being herein referred to as the "FIRST CLOSING DATE". For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, the First Closing Date
(if later than the otherwise applicable settlement date) shall be the settlement
date for payment of funds and delivery of securities for all the Offered
Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the above office of ▇▇▇▇ and ▇▇▇▇ LLP at least 24
hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and the
Optional Selling Stockholders from time to time not more than 30 days subsequent
to the date of the Prospectus, the Underwriters may purchase all or less than
all of the Optional Securities at the
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purchase price per Security to be paid for the Firm Securities. The Company and
the Optional Selling Stockholders agree, severally and not jointly, to sell to
the Underwriters the respective number of shares of Optional Securities obtained
by multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is 365,000 in the case of the Company and the
number of shares set forth opposite the names of such Optional Selling
Stockholders in Schedule B hereto in the case of the Optional Selling
Stockholders and the denominator of which is the total number of Optional
Securities being purchased by the Underwriters (subject to adjustment by CSFBC
to eliminate fractions). Such Optional Securities shall be purchased from the
Company and each Optional Selling Stockholder for the account of each
Underwriter in the same proportion as the number of shares of Firm Securities
set forth opposite such Underwriter's name bears to the total number of shares
of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Company and the Optional
Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company and the Custodian
will deliver the Optional Securities being purchased on each Optional Closing
Date to the Representatives for the accounts of the several Underwriters,
against payment of the purchase price therefor in Federal (same day) funds by
official bank check or checks or wire transfer to an account at a bank
acceptable to CSFBC drawn to the order of the Company in the case of the up to
365,000 shares of Optional Securities to be delivered by the Company and the
Custodian in the case of the up to 55,000 shares of Optional Securities to be
delivered by the Optional Selling Stockholders, at the above office of ▇▇▇▇ and
▇▇▇▇ LLP. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office of ▇▇▇▇ and ▇▇▇▇ LLP at a reasonable time in advance of such
Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders.
The Company agrees with the several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (i) the
second business day following the execution and delivery of this Agreement
or
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(ii) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as
of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b)
on or prior to 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later date
as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as filed
or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent; and the
Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
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(e) The Company will furnish to the Representatives copies of each
Registration Statement (four of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as CSFBC may reasonably request.
(h) The Company will pay all expenses incident to the performance of
the obligations of the Company and the Selling Stockholders under this
Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as CSFBC
designates and the printing of memoranda relating thereto, for the filing
fee incident to the review by the National Association of Securities
Dealers, Inc. of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters, but excluding any transfer taxes
on the sale by the Selling Stockholders of the Offered Securities to the
Underwriters.
(i) For a period of 90 days after the date of the public offering of
the Firm Securities, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any
additional shares of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of CSFBC; provided that the
Company may (i) issue shares of the Securities, and grant options for the
purchase of Securities, pursuant to its stock option plans and employee
stock purchase plan in effect on the date hereof, and (ii) file
registration statements on Form S-8 with the Commission registering the
shares of the
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Securities issuable under its stock option plans and employee stock
purchase plan in effect on the date hereof.
Each Selling Stockholder agrees, for a period of 90 days after the date of
the public offering of the Firm Securities, not to (i) offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
any additional shares of the Securities or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge
or other arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge, or disposition, or enter
into any such transaction, swap, hedge or other arrangement, without, in
each case, the prior written consent of CSFBC, or (ii) make any demand for,
or exercise any right with respect to, the registration of any Securities
or any security convertible into or exercisable or exchangeable for the
Securities; provided, however, that such transfer restrictions shall not
apply to (i) any Securities acquired by a Selling Stockholder in the open
market or (ii) a transfer of Securities by a Selling Stockholder to a
family member or trust or a bona fide gift by a Selling Stockholder of
Securities to a third party as long as the transferee or donee, as the case
may be, agrees to be bound in writing by the terms of this paragraph. Each
Selling Stockholder also agrees to pay any transfer taxes on the sale by
such Selling Stockholder of the Offered Securities to the Underwriters.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
(i) in their opinion the financial statements and schedules
included in the Registration Statements comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial
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information as described in Statement of Auditing Standards No. 71,
Interim Financial Information, on the unaudited financial statements
included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited and audited financial statements included
in the Registration Statements do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations or any
material modifications should be made to such unaudited and
audited financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of such letter, there
was any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets, as compared with amounts shown
on the latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year, in consolidated revenue or in the
total or per share amounts of net loss, except in all cases set
forth in clauses (B) and (C) above for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
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For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall mean
the Initial Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"PROSPECTUS" shall mean the prospectus included in the Registration Statements.
All financial statements included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statements for purposes
of this subsection.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by CSFBC. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company, any Selling Stockholder or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgement of a majority in interest of the
Underwriters, including the Representatives, is material and adverse and makes
it impractical or inadvisable to proceed with completion of the public offering
or the sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any material
suspension or material limitation of trading in securities generally on the New
York Stock Exchange or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or escalation of
major
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hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgement of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
(d) The Representatives shall have received an opinion, dated such Closing
Date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in New Hampshire
and Texas, which, to such counsel's knowledge, are the only U.S.
jurisdictions in which the Company owns or leases real property;
(ii) The Offered Securities delivered on such Closing Date and all
other outstanding shares of the Common Stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the
Offered Securities under the Delaware General Corporation Law statute, the
Company's Certificate of Incorporation or By-laws or, to such counsel's
knowledge, any agreement to which the Company is a party;
(iii) Except as described in the Prospectus, and except for rights
with respect to this offering which have been validly waived, there are no
contracts, agreements or understandings known to such counsel between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act;
(iv) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(v) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Company for the consummation of the transactions contemplated
by this Agreement in connection with the issuance or sale of the Offered
Securities, except such as have been obtained and made under the Act and
such as may be required under state securities laws;
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(vi) The execution, delivery and performance of this Agreement by the
Company and the issuance and sale of the Offered Securities by the Company
will not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, (a) any statute, rule or regulation, (b)
any order of any governmental agency or body or any court specifically
naming the Company or any subsidiary of the Company or any of their
properties of which such counsel has knowledge, (c) any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject and (1) which
is listed, or of which such counsel has knowledge that was required to be
filed, as an exhibit to the Registration Statement or to any document or
report incorporated by reference therein or (2) of which such counsel has
knowledge that is related to indebtedness, including any guarantees of the
indebtedness of a third party, or the issuance of equity or debt securities
of the Company or (d) the charter or by-laws of the Company or any such
subsidiary, and the Company has full corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement;
(vii) The Initial Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the Additional
Registration Statement (if any) was filed and became effective under the
Act as of the date and time (if determinable) specified in such opinion,
the Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date specified
therein or was included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and, to the best of
the knowledge of such counsel, no stop order suspending the effectiveness
of a Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened under the Act, each Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of their respective effective
or issue dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations and the materials
incorporated by reference in the Registration Statement, as of their
respective filing dates, complied as to form in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder; the
descriptions in the Registration Statements and Prospectus of statutes and
contracts, agreements and other instruments to which the Company is a party
or otherwise bound are accurate and fairly present the information required
to be shown; and such counsel do not know of any legal or governmental
proceedings required to be described in a Registration Statement or the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in a Registration
Statement or the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration Statements
or the Prospectus; and
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(viii) This Agreement has been duly authorized, executed and delivered
by the Company.
Such counsel shall also include a statement in its opinion to the effect
that, based on its participation in conferences with officers and
representatives of the Company, special litigation counsel to the Company,
counsel for the Underwriters and the independent accountants of the Company, no
facts have come to its attention which have caused it to believe that the
Registration Statement, as of its Effective Date (but after giving effect to
changes incorporated pursuant to Rule 430A under the Act), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading (except that such counsel need express no such view with respect to
the financial statements, including the notes and schedules thereto, or any
other financial or accounting data included therein), or that the Prospectus, as
of the date it was filed with the Commission pursuant to Rule 424(b) under the
Act or as of the Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (except that such counsel need express no such view with respect to
the financial statements, including the notes and schedules thereto, or any
other financial or accounting data included therein).
(e) The Representatives shall have received:
(i) an opinion, dated such Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bass +
Green, special litigation counsel to the Company, to the effect that the
descriptions in the Registration Statements and Prospectus under the
headings "Risk Factors - We and several of our executives, three of our key
employees and our largest investors are defendants in litigation with NETg
which alleges, among other things, misappropriation of trade secrets; this
litigation will continue to be costly and divert the efforts of our
management and may ultimately restrict our ability to do business" and
"Business - Legal Proceedings" that relate to the lawsuit brought by
National Education Training Group, Inc. ("NETg") against the Company,
several of its executives, three of its key employees and Warburg Pincus
are accurate and fairly present the information related to the litigation
described therein required to be included pursuant to Regulation S-K, Item
103, and such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement or
Prospectus which are not described.
(ii) an opinion, dated such Closing Date, of Jenner & Block, special
litigation counsel to the Company, to the effect that the descriptions in
the Registration Statements and Prospectus that relate to the NETg patent
litigation that are contained under the headings "Risk Factors - We and
several of our executives, three of our key employees and our largest
investors are defendants in litigation with NETg which alleges, among other
things, misappropriation of trade secrets; this litigation will continue to
be costly and divert the efforts of our management and may ultimately
restrict our ability to do business" and "Business - Legal Proceedings" are
accurate and fairly present the information related to the
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NETg patent litigation described therein required to be included pursuant
to Regulation S-K, Item 103, and such counsel does not know of any legal or
governmental proceedings required to be described in the Registration
Statement or Prospectus which are not described.
(f) The Representatives shall have received (1) a letter, dated the
date of this Agreement, from each of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for
Warburg Pincus, and ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Inside Selling
Stockholders, to the effect that such counsel will deliver to the
Representatives on such Closing Date the opinion described in the following
clause (2) and (2) an opinion, dated the date of such Closing Date, of each
of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for Warburg Pincus, and ▇▇▇▇ and ▇▇▇▇
LLP, counsel for the Inside Selling Stockholders, to the effect that:
(i) Each Selling Stockholder has the legal right, power and
authority to sell, assign, transfer and deliver the Offered Securities
delivered by such Selling Stockholder on such Closing Date hereunder,
and upon the Underwriters obtaining control of such Offered Securities
and assuming the Underwriters have no notice of any adverse claim to
the Offered Securities within the meaning of the applicable Uniform
Commercial Code and are otherwise protected purchasers for purposes of
such Uniform Commercial Code, the several Underwriters will acquire on
such Closing Date all the rights of such Selling Stockholder in the
Offered Securities free of any adverse claims, any liens in favor of
the Company and any restrictions on transfer imposed by the Company.
(ii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by any Selling Stockholder for the consummation of
the transactions contemplated by the Custody Agreement or this
Agreement in connection with the sale of the Offered Securities sold
by the Selling Stockholders, except such as have been obtained and
made under the Act and such as may be required under state securities
laws;
(iii) The execution, delivery and performance by the Selling
Stockholders of the Custody Agreement (in the case of the Inside
Selling Stockholders) and this Agreement and the consummation by the
Selling Stockholders of the transactions therein and herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (A) any
statute, rule or regulation, (B) any order of any governmental agency
or body or any court specifically naming any Selling Stockholder or
their Offered Securities of which such counsel has knowledge, (C) to
such counsel's knowledge, any agreement or instrument to which any
Selling Stockholder is a party or by which any Selling Stockholder is
bound or to which any of the properties of any Selling Stockholder is
subject, or (D) the trust agreement or partnership agreement of any
Selling Stockholder if it is a trust or partnership;
(iv) The Power of Attorney and related Custody Agreement with
respect to each Inside Selling Stockholder has been duly authorized,
executed and delivered by such Inside Selling Stockholder and
constitute valid and binding
-21-
22
obligations of such Inside Selling Stockholder enforceable against
such Inside Selling Stockholder in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
(v) This Agreement has been duly authorized, executed and
delivered by each Selling Stockholder.
In rendering such opinion, such counsel shall be entitled to rely, as to
all factual matters, on a certificate executed by or on behalf of such
Selling Stockholder.
(g) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ Zavis,
counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the Representatives
may require, and the Company and the Selling Stockholders shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state on
behalf of the Company that: the representations and warranties of the
Company in this Agreement are true and correct; the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date; no stop
order suspending the effectiveness of any Registration Statement has been
issued and, to their knowledge, no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b),
including payment of the applicable filing fee in accordance with Rule
111(a) or (b) under the Act, prior to the time the Prospectus was printed
and distributed to any Underwriter; and, subsequent to the dates of the
most recent financial statements in the Prospectus, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(i) The Representatives shall have received a letter, dated such
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection..
(j) The Custodian will agree to deliver to CSFBC, attention:
Transactions Advisory Group, on the Closing Date a letter stating that they
will deliver to each Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or
-22-
23
statement specified by the United States Treasury Department regulations in
lieu thereof) on or before January 31 of the year following the date of
this Agreement.
The Company and the Selling Stockholders will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter,
its partners, directors and officers and each person, if any, who controls
such Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, 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, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company 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 an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in subsection (c) below; and provided, further, that with respect to any
untrue statement or alleged untrue statement in or omission or alleged
omission from any preliminary prospectus the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that
a prospectus relating to such Offered Securities was required to be
delivered by such Underwriter under the Act in connection with such
purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at
or prior to the written confirmation of the sale of such Offered Securities
to such person, a copy of the Prospectus if the Company had previously
furnished copies thereof to such Underwriter.
(b) The Selling Stockholders, jointly and severally, will indemnify
and hold harmless each Underwriter, its partners, directors and officers
and each person, if any, who controls such Underwriter within the meaning
of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue
-23-
24
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Selling
Stockholders 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 an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (c) below; provided,
further, that Warburg Pincus shall only be subject to such liability to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission is based upon the Warburg Pincus Information or contained
in a representation or warranty given by Warburg Pincus in this Agreement;
provided, further, that the aggregate liability under this subsection and
for any breach of the representations contained in Section 2(b)(ii) of each
Selling Stockholder shall be limited to an amount equal to the aggregate
net proceeds (before deducting expenses) to such Selling Stockholder from
the sale of Offered Securities sold by such Selling Stockholder hereunder;
and provided, further, that with respect to any untrue statement or alleged
untrue statement in or omission or alleged omission from any preliminary
prospectus the indemnity agreement contained in this subsection (b) shall
not inure to the benefit of any Underwriter (or any person) from whom the
person asserting any such losses, claims, damages or liabilities purchased
the Offered Securities concerned, to the extent that a prospectus relating
to such Offered Securities was required to be delivered by such Underwriter
under the Act in connection with such purchases and any such loss, claim,
damage or liability of such Underwriter results from the fact that there
was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy
of the Prospectus if the Company had previously furnished copies thereof to
such Underwriter.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act,
and each Selling Stockholder against any losses, claims, damages or
liabilities to which the Company or such Selling Stockholder may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information
-24-
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furnished to the Company by such Underwriter through the Representatives
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company and each Selling Stockholder in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists
of (i) the following information in the Prospectus furnished on behalf of
each Underwriter: the concession and reallowance figures appearing in the
fourth paragraph under the caption "Underwriting" and the information
contained in the tenth and eleventh paragraphs under the caption
"Underwriting" and (ii) the following information in the Prospectus
furnished on behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC: the sixth paragraph
under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this Section
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 subsection (a), (b) or (c) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a), (b) or (c) above. In
case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying or indemnified party shall, without the
prior written consent of the other party, effect any settlement of any
pending or threatened action in respect of which such other party is or
could have been at the time of such settlement a party and indemnity could
have been sought hereunder by such other party, unless such settlement (i)
includes an unconditional release of such other party from all liability on
any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of such other party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions
-25-
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which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (e). Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters
under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of
the Company who has signed a Registration Statement and to each person, if
any, who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholders
selling Offered Securities on such Closing Date for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
-26-
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Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC, the
Company and the Selling Stockholders for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Stockholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers, the Selling Stockholders and the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company, any Selling Stockholder or
any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company, the Selling Stockholders and the Underwriters pursuant to Section 7
shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(c),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President,
or, if sent to the Inside Selling Stockholders or any of them, will be mailed,
delivered or telegraphed and confirmed to the Custodian at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President, or if sent to Warburg Pincus
will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and
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directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters. The Attorneys will act for the Inside Selling
Stockholders in connection with such transactions, and any action under or in
respect of this Agreement taken by the Attorneys will be binding upon all the
Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company and the Selling Stockholders hereby submit to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company, the
Selling Stockholders and the several Underwriters in accordance with its terms.
Very truly yours,
SKILLSOFT CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Executive Officer and
Chairman
THE INSIDE SELLING STOCKHOLDERS NAMED IN
SCHEDULES A AND B HERETO, SEVERALLY
By:
-----------------------------------
Name:_________________________________
Attorney-in-fact:_____________________
WARBURG, ▇▇▇▇▇▇ VENTURES, L.P.
By: Warburg, ▇▇▇▇▇▇ & Co., its General Partner
By:
-----------------------------------
Name:_________________________________
Title:________________________________
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
BANC OF AMERICA SECURITIES LLC
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
----------------------------------------
Name:
Title:
1263768
30
SCHEDULE A
NUMBER OF
FIRM SECURITIES
FIRM SELLING STOCKHOLDER TO BE SOLD
------------------------ ----------
Warburg, ▇▇▇▇▇▇ Ventures, L.P. 600,000
-------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 60,000
-------
▇▇▇▇▇▇ ▇. Nine 50,000
-------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 40,000
-------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 50,000
-------
Total 800,000
=======
31
SCHEDULE B
NUMBER OF
OPTIONAL
SECURITIES
OPTIONAL SELLING STOCKHOLDER TO BE SOLD
---------------------------- ----------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 15,000
------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust 10,000
------
▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust 10,000
------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust 10,000
------
▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust 10,000
------
Total 55,000
======
32
SCHEDULE C
NUMBER OF
FIRM SECURITIES TO
UNDERWRITER BE PURCHASED
----------- ------------------
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
Banc of America Securities LLC
---------
Total 2,800,000
=========
1263768