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DRAFT
9/29/97
EXHIBIT 1.1
2,000,000 SHARES*
KOFAX IMAGE PRODUCTS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_______________, 1997
▇▇▇▇▇▇▇ & COMPANY, INC.
UNTERBERG HARRIS
As Representatives of the several Underwriters
c/o Needham & Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Kofax Image Products, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell 1,300,000 shares (the "COMPANY FIRM SHARES") of the
Company's Common Stock, $0.001 par value per share (the "COMMON STOCK"), and
certain of the stockholders of the Company named in Schedule II hereto (the
"SELLING STOCKHOLDERS") propose to sell an aggregate of 700,000 shares (the
"SELLING STOCKHOLDER FIRM SHARES") of Common Stock, in each case to you and to
the several other Underwriters named in Schedule I hereto (collectively, the
"UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"). Certain of the Selling Stockholders named in Schedule II
hereto have also agreed to grant to you and the other Underwriters an option
(the "OPTION") to purchase up to an additional 300,000 shares of Common Stock,
on the terms and for the purposes set forth in Section 1(b) (the "OPTION
SHARES"). The Company Firm Shares and the Selling Stockholder Firm Shares are
referred to collectively herein as the "FIRM SHARES," and the Firm Shares and
the Option Shares are referred to collectively herein as the "SHARES."
The Company and each of the Selling Stockholders confirm as follows
their respective agreements with the Representatives and the several other
Underwriters.
1. AGREEMENT TO SELL AND PURCHASE.
(a) On the basis of the representations, warranties and agreements
of the Company and the Selling Stockholders herein contained and subject to all
the terms and conditions of this Agreement,
__________________________________
* Plus an option to purchase up to an additional 300,000 shares to cover
over-allotments.
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(i) the Company agrees to issue and sell the Company Firm Shares to the several
Underwriters, (ii) each Selling Stockholder, severally and not jointly, agrees
to sell to the several Underwriters the respective number of Selling
Stockholder Firm Shares set forth opposite that Selling Stockholders' name on
Schedule II hereto and (iii) each of the Underwriters, severally and not
jointly, agrees to purchase from the Company and the Selling Stockholders the
respective number of Firm Shares set forth opposite that Underwriter's name in
Schedule I hereto, at the purchase price of $____ for each Firm Share. The
number of Firm Shares to be purchased by each Underwriter from the Company and
each Selling Stockholder shall be as nearly as practicable in the same
proportion to the total number of Firm Shares being sold by the Company and
each Selling Stockholder as the number of Firm Shares being purchased by each
Underwriter bears to the total number of Firm Shares to be sold hereunder.
(b) Subject to all the terms and conditions of this Agreement,
certain of the Selling Stockholders grant the Option to the several
Underwriters to purchase, severally and not jointly, up to the maximum number
of Option Shares set forth opposite the names of such Selling Stockholders in
Schedule II hereto at the same price per share as the Underwriters shall pay
for the Firm Shares. The Option may be exercised only to cover over-allotments
in the sale of the Firm Shares by the Underwriters and may be exercised in
whole or in part at any time (but not more than once) on or before the 30th day
after the date of this Agreement upon written notice (the "OPTION SHARES
NOTICE") by the Representatives to the Company and the Selling Stockholders no
later than 12:00 noon, New York City time, at least two and no more than five
business days before the date specified for closing in the Option Shares Notice
(the "OPTION CLOSING DATE"), setting forth the aggregate number of Option
Shares to be purchased and the time and date for such purchase. On the Option
Closing Date, the Selling Stockholders will sell to the Underwriters the number
of Option Shares set forth in the Option Shares Notice, and each Underwriter
will purchase such percentage of the Option Shares as is equal to the
percentage of Firm Shares that such Underwriter is purchasing, as adjusted by
the Representatives in such manner as they deem advisable to avoid fractional
shares.
2. DELIVERY AND PAYMENT. Delivery of the Firm Shares shall be
made to the Representatives for the accounts of the Underwriters against
payment of the purchase price by certified or official bank checks or by wire
transfers payable in same-day funds to the order of the Company for the Company
Firm Shares to be sold by it and to U.S. Stock Transfer Corporation, as
custodian for the Selling Stockholders (the "CUSTODIAN") for the Firm Shares to
be sold by the Selling Stockholders, at the office of ▇▇▇▇▇▇▇ & Company, Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York City time,
on the third (or, if the purchase price set forth in Section 1(b) hereof is
determined after 4:30 p.m., Washington D.C. time, the fourth) business day
following the commencement of the offering contemplated by this Agreement, or
at such time on such other date, not later than seven business days after the
date of this Agreement, as may be agreed upon by the Company and the
Representatives (such date is hereinafter referred to as the "CLOSING DATE").
To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above for the Closing Date at the time and date
(which may be the Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive form and
shall be registered in such names and in such denominations as the
Representatives shall request at least two business days prior to the Closing
Date or the Option Closing Date, as the case may be, by written notice to the
Company.
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For the purpose of expediting the checking and packaging of certificates for
the Shares, the Company agrees to make such certificates available for
inspection at least 24 hours prior to the Closing Date or the Option Closing
Date, as the case may be.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Shares and Option Shares by the Company to
the respective Underwriters shall be borne by the Company. The Company will pay
and save each Underwriter and any subsequent holder of the Shares harmless from
any and all liabilities with respect to or resulting from any failure or delay
in paying Federal and state stamp and other transfer taxes, if any, which may
be payable or determined to be payable in connection with the original issuance
or sale to such Underwriter of the Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents, warrants and covenants to each Underwriter that:
(a) A registration statement (Registration No. 333-34531) on Form
S-1 relating to the Shares, including a preliminary prospectus and such
amendments to such registration statement as may have been required to the date
of this Agreement, has been prepared by the Company under the provisions of the
Securities Act of 1933, as amended (the "ACT"), and the rules and regulations
(collectively referred to as the "RULES AND REGULATIONS") of the Securities and
Exchange Commission (the "COMMISSION") thereunder, and has been filed with the
Commission. The term "PRELIMINARY PROSPECTUS" as used herein means a
preliminary prospectus as contemplated by Rule 430 or Rule 430A of the Rules
and Regulations included at any time as part of the registration statement.
Copies of such registration statement and amendments and of each related
preliminary prospectus have been delivered to the Representatives. If such
registration statement has not become effective, a further amendment to such
registration statement, including a form of final prospectus, necessary to
permit such registration statement to become effective will be filed promptly
by the Company with the Commission. If such registration statement has become
effective, a final prospectus containing information permitted to be omitted at
the time of effectiveness by Rule 430A of the Rules and Regulations will be
filed promptly by the Company with the Commission in accordance with Rule
424(b) of the Rules and Regulations. The term "REGISTRATION STATEMENT" means
the registration statement as amended at the time it becomes or became
effective (the "EFFECTIVE DATE"), including financial statements and all
exhibits and any information deemed to be included by Rule 430A and includes
any registration statement relating to the offering contemplated by this
Agreement and filed pursuant to Rule 462(b) of the Rules and Regulations. The
term "PROSPECTUS" means the prospectus as first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations or, if no such filing is
required, the form of final prospectus included in the Registration Statement
at the Effective Date.
(b) No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission. On the Effective Date, the date
the Prospectus is first filed with the Commission pursuant to Rule 424(b) (if
required), at all times subsequent to and including the Closing Date and, if
later, the Option Closing Date and when any post-effective amendment to the
Registration Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, the Registration Statement and the
Prospectus (as amended or as supplemented if the Company shall have filed with
the Commission any amendment or supplement thereto), including the financial
statements included in the Prospectus, did and will comply with all applicable
provisions of the Act and the Rules and Regulations and will contain all
statements required to be stated therein in
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accordance with the Act and the Rules and Regulations. On the Effective Date
and when any post-effective amendment to the Registration Statement becomes
effective, no part of the Registration Statement, the Prospectus or any such
amendment or supplement did or will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading. At the
Effective Date, the date the Prospectus or any amendment or supplement to the
Prospectus is filed with the Commission and at the Closing Date and, if later,
the Option Closing Date, the Prospectus did not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing representations and warranties in this
Section 3(b) do not apply to any statements or omissions made in reliance on
and in conformity with information relating to any Underwriter furnished in
writing to the Company by the Representatives specifically for inclusion in the
Registration Statement or Prospectus or any amendment or supplement thereto.
The Company acknowledges that the statements set forth under the heading
"Underwriting" in the Prospectus constitute the only information relating to
any Underwriter furnished in writing to the Company by the Representatives
specifically for inclusion in the Registration Statement.
(c) The Company does not own, and at the Closing Date and, if
later, the Option Closing Date, will not own, directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any corporation, firm, partnership,
joint venture, association or other entity, other than Kofax Foreign Sales
Corp., a wholly-owned subsidiary of the Company organized under the laws of the
Virgin Islands (the "SUBSIDIARY"). Each of the Company and the Subsidiary is,
and at the Closing Date and, if later, the Option Closing Date, will be, a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation. Each of the Company and the
Subsidiary has, and at the Closing Date and, if later, the Option Closing Date,
will have, full power and authority to conduct all the activities conducted by
it, to own or lease all the assets owned or leased by it and to conduct its
business as described in the Registration Statement and the Prospectus. Each of
the Company and the Subsidiary is, and at the Closing Date and, if later, the
Option Closing Date, will be, duly licensed or qualified to do business and in
good standing as a foreign corporation in all jurisdictions in which the nature
of the activities conducted by it or the character of the assets owned or
leased by it makes such license or qualification necessary, except to the
extent that the failure to be so qualified or be in good standing would not
materially and adversely affect the Company or its business, properties,
business prospects, condition (financial or other) or results of operations.
All of the outstanding shares of capital stock of the Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable, and owned
by the Company free and clear of all claims, liens, charges and encumbrances;
there are no securities outstanding that are convertible into or exercisable or
exchangeable for capital stock of the Subsidiary. The Company is not, and at
the Closing Date and, if later, the Option Closing Date, will not be, engaged
in any discussions or a party to any agreement or understanding, written or
oral, regarding the acquisition of an interest in any corporation, firm,
partnership, joint venture, association or other entity where such discussions,
agreements or understandings would require amendment to the Registration
Statement pursuant to applicable securities laws. Complete and correct copies
of the certificate of incorporation and by-laws of the Company and of the
memorandum of association and articles of association of the Subsidiary and all
amendments thereto have been delivered to the Representatives, and no changes
therein will be made subsequent to the date hereof and prior to the Closing
Date or, if later, the Option Closing Date.
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(d) All of the outstanding shares of capital stock of the Company
(including the Selling Stockholder Firm Shares and the Option Shares) have been
duly authorized, validly issued and are fully paid and nonassessable and were
issued in compliance with all applicable state and federal securities laws; the
Company Firm Shares have been duly authorized and when issued and paid for as
contemplated herein will be validly issued, fully paid and nonassessable; no
preemptive or other similar rights exist with respect to any of the Shares or
the issue and sale thereof. The description of the capital stock of the Company
in the Registration Statement and the Prospectus is, and at the Closing Date
and, if later, the Option Closing Date, will be, complete and accurate in all
material respects. Except as set forth in the Prospectus, the Company does not
have outstanding, and at the Closing Date and, if later, the Option Closing
Date, will not have outstanding, any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible into,
or any contracts or commitments to issue or sell, any shares of capital stock,
or any such warrants, convertible securities or obligations. No further
approval or authority of stockholders or the Board of Directors of the Company
will be required for the transfer and sale of the Selling Stockholder Firm
Shares or the Option Shares or the issuance and sale of the Company Firm Shares
as contemplated herein.
(e) The financial statements and schedules included in the
Registration Statement or the Prospectus present fairly the financial condition
of the Company and its consolidated Subsidiary as of the respective dates
thereof and the results of operations and cash flows of the Company and its
consolidated Subsidiary for the respective periods covered thereby, all in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as otherwise
disclosed in the Prospectus. No other financial statements or schedules of the
Company are required by the Act to be included in the Registration Statement or
the Prospectus. Deloitte & Touche LLP (the "ACCOUNTANTS"), who have reported
on such financial statements and schedules, are independent accountants with
respect to the Company as required by the Act and the Rules and Regulations.
The summary consolidated financial and statistical data included in the
Registration Statement present fairly the information shown therein and have
been compiled on a basis consistent with the financial statements presented
therein.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date and, if later, the Option Closing Date, except as set forth in or
contemplated by the Registration Statement and the Prospectus, (i) there has
not been and will not have been any change in the capitalization of the Company
(other than in connection with the exercise of options to purchase the
Company's Common Stock granted pursuant to the Company's stock option plans
from the shares reserved therefor as described in the Registration Statement),
or any material adverse change in the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company and
the Subsidiary, taken as a whole, arising for any reason whatsoever, (ii)
neither the Company nor the Subsidiary has incurred nor will either of them
incur, except in the ordinary course of business as described in the
Prospectus, any material liabilities or obligations, direct or contingent, nor
has the Company or the Subsidiary entered into nor will either of them enter
into, except in the ordinary course of business as described in the Prospectus,
any material transactions other than pursuant to this Agreement and the
transactions referred to herein and (iii) the Company has not and will not have
paid or declared any dividends or other distributions of any kind on any class
of its capital stock.
(g) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its business
in a manner that would cause it to become, an
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"INVESTMENT COMPANY" or an "AFFILIATED PERSON" of, or "PROMOTER" or "PRINCIPAL
UNDERWRITER" for, an "INVESTMENT COMPANY," as such terms are defined in the
Investment Company Act of 1940, as amended.
(h) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or the
Subsidiary or any of their officers in their capacity as such, nor any basis
therefor, before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding might materially and adversely
affect the Company and the Subsidiary, taken as a whole, or the business,
properties, business prospects, condition (financial or otherwise) or results
of operations of the Company and the Subsidiary, taken as a whole.
(i) Each of the Company and the Subsidiary has, and at the Closing
Date and, if later, the Option Closing Date, will have, performed all the
obligations required to be performed by it, and is not, and at the Closing
Date, and, if later, the Option Closing Date, will not be, in default, under
any contract or other instrument to which it is a party or by which its
property is bound or affected, which default might reasonably be expected to
materially and adversely affect the Company or the business, properties,
business prospects, condition (financial or other) or results of operations of
the Company and the Subsidiary, taken as a whole. To the best knowledge of the
Company, no other party under any contract or other instrument to which it or
the Subsidiary is a party is in default in any respect thereunder, which
default might reasonably be expected to materially and adversely affect the
Company and the Subsidiary, taken as a whole, or the business, properties,
business prospects, condition (financial or other) or results of operations of
the Company and the Subsidiary, taken as a whole. Neither the Company nor the
Subsidiary is, and at the Closing Date and, if later, the Option Closing Date,
will be, in violation of any provision of its certificate of incorporation or
by-laws or other organizational documents, as applicable.
(j) No consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body is required for
the consummation by the Company of the transactions on its part contemplated
herein, except such as have been obtained under the Act or the Rules and
Regulations and such as may be required under state securities or Blue Sky laws
or the by-laws and rules of the National Association of Securities Dealers,
Inc. (the "NASD") in connection with the purchase and distribution by the
Underwriters of the Shares.
(k) The Company has full corporate power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with the terms hereof.
The performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company pursuant to the
terms or provisions of, or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or give any party a right to
terminate any of its obligations under, or result in the acceleration of any
obligation under, the certificate or articles of incorporation or by-laws of
the Company or the Subsidiary, any indenture, mortgage, deed of trust, voting
trust agreement, loan agreement, bond, debenture, note agreement or other
evidence of indebtedness, lease, contract or other agreement or instrument to
which the Company or the Subsidiary is a party or by which the Company, the
Subsidiary or any of the properties of either
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of them is bound or affected, or violate or conflict with any judgment, ruling,
decree, order, statute, rule or regulation of any court or other governmental
agency or body applicable to the business or properties of the Company or the
Subsidiary, except to the extent that any such imposition, breach, violation or
right of acceleration would not have a material adverse effect on the Company
and the Subsidiary, taken as a whole.
(l) Each of the Company and the Subsidiary has good and marketable
title to all properties and assets described in the Prospectus as owned by
them, free and clear of all liens, charges, encumbrances or restrictions,
except such as are described in the Prospectus or are not material to the
business of the Company and the Subsidiary, taken as a whole. Each of the
Company and the Subsidiary has valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by it. Each of the Company and
the Subsidiary owns or leases all such properties as are necessary to its
operations as now conducted or as proposed to be conducted, except where the
failure to so own or lease would not materially and adversely affect the
business, properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and the Subsidiary, taken as a whole.
(m) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. All such contracts to which the Company or the Subsidiary is a party
have been duly authorized, executed and delivered by the Company or the
Subsidiary, constitute valid and binding agreements of the Company or the
Subsidiary and are enforceable against and by the Company or the Subsidiary in
accordance with the terms thereof.
(n) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or document required by
Section 6 of this Agreement to be delivered to the Representatives was or will
be, when made, inaccurate, untrue or incorrect.
(o) Neither the Company nor, to the best of the Company's
knowledge after reasonable inquiry, any of its directors, officers or
controlling persons has taken, directly or indirectly, any action designed, or
which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.
(p) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement, which rights have not been waived by the holder thereof
as of the date hereof.
(q) The Company has filed a registration statement pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), to register the Common Stock and has filed an application to list the
Shares on the Nasdaq National Market ("NNM"). The Company has received
notification that the listing of the Company Firm Shares on the NNM has been
approved, subject to notice of issuance of such Shares and that the Selling
Stockholder Shares and the Option Shares are listed on the NNM.
(r) Except as disclosed in or specifically contemplated by the
Prospectus (i) each of the Company and the Subsidiary has sufficient
trademarks, trade names, patent rights, copyrights, licenses, approvals and
governmental authorizations to conduct its business as now conducted, (ii) the
Company
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has no knowledge of any infringement by it or the Subsidiary of trademarks,
trade name rights, patent rights, copyrights, licenses, trade secrets or other
similar rights of others, where such infringement could have a material adverse
effect on the Company and the Subsidiary, taken as a whole, or the business,
properties, business prospects, condition (financial or otherwise) or results
of operations of the Company and the Subsidiary, taken as a whole, and (iii)
there is no claim pending or threatened against the Company or the Subsidiary,
or to the best of the Company's knowledge, any employee of the Company or the
Subsidiary, regarding trademark, trade name, patent, copyright, license, trade
secret or other infringement which could have a material and adverse effect on
the Company and the Subsidiary, taken as a whole, or the business, properties,
business prospects, condition (financial or otherwise) or results of operations
of the Company and the Subsidiary, taken as a whole.
(s) Each of the Company and the Subsidiary has filed all federal,
state, local and foreign income tax returns which have been required to be
filed and has paid all taxes and assessments received by it to the extent that
such taxes or assessments have become due. Neither the Company nor the
Subsidiary has any tax deficiency which has been or, to the best knowledge of
the Company, might be asserted or threatened against it which could have a
material and adverse effect on the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company and
the Subsidiary, taken as a whole.
(t) The pro forma financial information set forth in the
Registration Statement reflects, subject to the limitations set forth in the
Registration Statement as to such pro forma financial information, the results
of operations of the Company and its consolidated Subsidiary purported to be
shown thereby for the periods indicated and conforms to the requirements of
Regulation S-X of the Rules and Regulations, and management of the Company
believes (i) the assumptions underlying the pro forma adjustments are
reasonable, (ii) that such adjustments have been properly applied to the
historical amounts in the compilation of such statements, and (iii) that such
statements present fairly, with respect to the Company and its consolidated
Subsidiary, the pro forma financial position and results of operations and the
other information purported to be shown therein at the respective dates or for
the respective periods therein specified.
(u) Each of the Company and the Subsidiary owns or possesses all
authorizations, approvals, orders, licenses, registrations, other certificates
and permits of and from all governmental regulatory officials and bodies,
necessary to conduct its business, as contemplated in the Prospectus, except
where the failure to own or possess all such authorizations, approvals, orders,
licenses, registrations, other certificates and permits would not materially
and adversely affect the Company and the Subsidiary, taken as a whole, or the
business, properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and the Subsidiary, taken as a whole.
There is no proceeding pending or threatened (or any basis therefor known to
the Company) which may cause any such authorization, approval, order, license,
registration, certificate or permit to be revoked, withdrawn, canceled,
suspended or not renewed; and each of the Company and the Subsidiary is
conducting its business in compliance with all laws, rules and regulations
applicable thereto (including, without limitation, all applicable federal,
state and local environmental laws and regulations) except where such
noncompliance would not materially and adversely affect the Company and the
Subsidiary, taken as a whole, or the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company and
the Subsidiary, taken as a whole.
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(v) Each of the Company and the Subsidiary maintains insurance of
the types and in the amounts generally deemed adequate for its business,
including, but not limited to, insurance covering real and personal property
owned or leased by the Company and the Subsidiary against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against,
all of which insurance is in full force and effect.
(w) Neither the Company nor the Subsidiary has nor, to the best of
the Company's knowledge, any of its or their respective employees or agents at
any time during the last five years (i) made any unlawful contribution to any
candidate for foreign office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the laws of
the United States or any jurisdiction thereof.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLING
STOCKHOLDERS. Each Selling Stockholder, severally and not jointly, represents,
warrants and covenants to each Underwriter that:
(a) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Stockholder of this Agreement
and the Power-of-Attorney and Custody Agreement (hereinafter referred to as a
"STOCKHOLDERS' AGREEMENT") hereinafter referred to, and for the sale and
delivery of the Selling Stockholder Firm Shares, and, if applicable, the Option
Shares to be sold by such Selling Stockholder hereunder, have been obtained;
and such Selling Stockholder has full right, power and authority to enter into
this Agreement and the Stockholders' Agreement, to make the representations,
warranties and agreements hereunder and thereunder, and to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder.
(b) Certificates in negotiable form representing all of the
Selling Stockholder Firm Shares to be sold by such Selling Stockholder have
been placed in custody under the Stockholders' Agreement, in the form
heretofore furnished to you, duly executed and delivered by such Selling
Stockholder to the Custodian, and such Selling Stockholder has duly executed
and delivered a power-of-attorney, in the form heretofore furnished to you and
included in the Stockholders' Agreement (the "POWER-OF-ATTORNEY"), appointing
▇▇▇▇▇ ▇. Silver and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and each of them, as such Selling
Stockholder's attorney-in-fact (the "ATTORNEYS-IN-FACT") with authority to
execute and deliver this Agreement on behalf of such Selling Stockholder, to
determine (subject to the provisions of the Stockholders' Agreement) the
purchase price to be paid by the Underwriters to the Selling Stockholders as
provided in Section 2 hereof, to authorize the delivery of the Selling
Stockholder Firm Shares to be sold by such Selling Stockholder hereunder and
otherwise to act on behalf of such Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Stockholders' Agreement.
(c) Such Selling Stockholder specifically agrees that the Selling
Stockholder Firm Shares represented by the certificates held in custody for
such Selling Stockholder under the Stockholders' Agreement are for the benefit
of and coupled with and subject to the interests of the Underwriters, the
Custodian, the Attorneys-in-Fact, each other Selling Stockholder and the
Company, that the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power-of-Attorney, are to that extent irrevocable, and
that the obligations of such Selling Stockholder hereunder shall not be
terminated by operation of law,
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whether by the death, disability, incapacity, liquidation or dissolution of any
Selling Stockholder or by the occurrence of any other event. If any individual
Selling Stockholder or any executor or trustee for a Selling Stockholder should
die or become incapacitated, or if any Selling Stockholder that is an estate or
trust should be terminated, or if any Selling Stockholder that is a partnership
or corporation should be dissolved, or if any other such event should occur,
before the delivery of the Selling Stockholder Firm Shares hereunder,
certificates representing the Selling Stockholder Firm Shares shall be
delivered by or on behalf of the Selling Stockholders in accordance with the
terms and conditions of this Agreement and of the Stockholders' Agreement, and
actions taken by the Attorneys-in-Fact pursuant to the Powers-of- Attorney
shall be as valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such death,
incapacity, termination, dissolution or other event.
(d) This Agreement and the Stockholders' Agreement have each been
duly authorized, executed and delivered by such Selling Stockholder and each
such document constitutes a valid and binding obligation of such Selling
Stockholder, enforceable in accordance with its terms.
(e) No consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body is required in
connection with the sale of the Selling Stockholder Firm Shares by such Selling
Stockholder or the consummation by such Selling Stockholder of the transactions
on its part contemplated by this Agreement and the Stockholders' Agreement,
except such as have been obtained under the Act or the Rules and Regulations
and such as may be required under state securities or Blue Sky laws or the
by-laws and rules of the NASD in connection with the purchase and distribution
by the Underwriters of the Shares to be sold by such Selling Stockholder.
(f) The sale of the Selling Stockholder Firm Shares to be sold by
such Selling Stockholder hereunder and the performance by such Selling
Stockholder of this Agreement and the Stockholders' Agreement and the
consummation of the transactions contemplated hereby and thereby will not
result in the creation or imposition of any lien, charge or encumbrance upon
any of the Selling Stockholder Firm Shares or Option Shares of such Selling
Stockholder pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or give any party a right to terminate any of its obligations under, or result
in the acceleration of any obligation under, any indenture, mortgage, deed of
trust, voting trust agreement, loan agreement, bond, debenture, note agreement
or other evidence of indebtedness, lease, contract or other agreement or
instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder or any of its properties is bound or affected, or violate
or conflict with any judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body applicable to such
Selling Stockholder or, if such Selling Stockholder is a corporation,
partnership or other entity, the organizational documents of such Selling
Stockholder.
(g) Such Selling Stockholder has, and at the Closing Date and, if
later, the Option Closing Date, will have, good and marketable title to the
Shares to be sold by such Selling Stockholder hereunder, free and clear of all
liens, encumbrances, equities or claims whatsoever; and, upon delivery of such
Shares and payment therefor pursuant hereto, good and marketable title to such
Shares, free and clear of all liens, encumbrances, equities or claims
whatsoever, will be delivered to the Underwriters.
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(h) On the Closing Date or, if later, the Option Closing Date, all
stock transfer or other taxes (other than income taxes) that are required to be
paid in connection with the sale and transfer of the Shares to be sold by such
Selling Stockholder to the several Underwriters hereunder will be have been
fully paid or provided for by such Selling Stockholder and all laws imposing
such taxes will have been fully complied with.
(i) Other than as permitted by the Act and the Rules and
Regulations, such Selling Stockholder has not distributed and will not
distribute any preliminary prospectus, the Prospectus or any other offering
material in connection with the offering and sale of the Shares. Such Selling
Stockholder has not taken and will not at any time take, directly or
indirectly, any action designed, or which might reasonably be expected, to
cause or result in, or which will constitute, stabilization of the price of
shares of Common Stock to facilitate the sale or resale of any of the Shares.
(j) All information with respect to such Selling Stockholder
contained in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto complied or will comply in
all material respects with all applicable requirements of the Act and the Rules
and Regulations and does not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(k) Such Selling Stockholder has no knowledge of any material fact
or condition not set forth in the Registration Statement or the Prospectus that
has adversely affected, or may adversely affect, the business, properties,
business prospects, condition (financial or otherwise) or results of operations
of the Company and the Subsidiary, taken as a whole, and the sale of the Shares
proposed to be sold by such Selling Stockholder is not prompted by any such
knowledge.
(l) Such Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in Section 3 hereof are
not true and correct.
(m) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder agrees to deliver to you prior to or at
the Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
5. AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. Each
of the Company and the Selling Stockholders , with respect to the specific
covenants of the Selling Stockholders set forth in Sections 5(j) and 5(o),
severally covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by an Underwriter or dealer,
file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Representatives within a reasonable period of time prior to the filing thereof
and the Representatives shall not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the
Registration Statement to become effective, and will notify the Representatives
promptly, and will confirm such advice in writing,
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(i) when the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective, (ii) of any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or the threat
thereof, (iv) of the happening of any event during the period mentioned in the
second sentence of Section 5(e) that in the judgment of the Company makes any
statement made in the Registration Statement or the Prospectus untrue or that
requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein, in the light of the
circumstances in which they are made, not misleading and (v) of receipt by the
Company or any representative or attorney of the Company of any other
communication from the Commission relating to the Company, the Registration
Statement, any preliminary prospectus or the Prospectus. If at any time the
Commission shall issue any order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible moment. If the Company
has omitted any information from the Registration Statement pursuant to Rule
430A of the Rules and Regulations, the Company will comply with the provisions
of and make all requisite filings with the Commission pursuant to said Rule
430A and notify the Representatives promptly of all such filings.
(c) The Company will furnish to each Representative, without
charge, one signed copy of each of the Registration Statement and of any
post-effective amendment thereto, including financial statements and schedules,
and all exhibits thereto and will furnish to the Representatives, without
charge, for transmittal to each of the other Underwriters, a copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules but without exhibits.
(d) The Company will use its best efforts to comply with all the
provisions of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to each of the Underwriters, without charge, as many
copies of the Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by the several Underwriters
and by all dealers to whom the Shares may be sold, both in connection with the
offering or sale of the Shares and for any period of time thereafter during
which the Prospectus is required by law to be delivered in connection
therewith. If during such period of time any event shall occur which in the
judgment of the Company or counsel to the Underwriters should be set forth in
the Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made, not misleading, or if it is necessary to
supplement or amend the Prospectus to comply with law, the Company will
forthwith prepare and duly file with the Commission an appropriate supplement
or amendment thereto, and will deliver to each of the Underwriters, without
charge, such number of copies of such supplement or amendment to the Prospectus
as the Representatives may reasonably request.
(f) Prior to any public offering of the Shares, the Company will
cooperate with the Representatives and counsel to the Underwriters in
connection with the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably request; provided, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject.
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(g) The Company will, so long as required under the Rules and
Regulations, furnish to its stockholders as soon as practicable after the end
of each fiscal year an annual report (including a balance sheet and statements
of income, stockholders' equity and cash flow of the Company and its
consolidated Subsidiary, if any, certified by independent public accountants)
and, as soon as practicable after the end of each of the first three quarters
of each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary financial
information of the Company and the Subsidiary, if any, for such quarter in
reasonable detail.
(h) During the period of five years commencing on the Effective
Date, the Company will furnish to the Representatives and each other
Underwriter who may so request copies of such financial statements and other
periodic and special reports as the Company may from time to time distribute
generally to the holders of any class of its capital stock, and will furnish to
the Representatives and each other Underwriter who may so request a copy of
each annual or other report it shall be required to file with the Commission.
(i) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the last
day of the 15th full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement (which need not be audited but
shall be in reasonable detail) for a period of 12 months ended commencing after
the Effective Date, and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 of the Rules and Regulations).
(j) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company will pay or
reimburse if paid by the Representatives, in such proportions as they may agree
among themselves, all costs and expenses incident to the performance of the
obligations of the Company and the Selling Stockholders under this Agreement
and in connection with the transactions contemplated hereby, including but not
limited to costs and expenses of or relating to (i) the preparation, printing
and filing of the Registration Statement and exhibits to it, each preliminary
prospectus, Prospectus and any amendment or supplement to the Registration
Statement or Prospectus, (ii) the preparation and delivery of certificates
representing the Shares, (iii) the printing or duplication of this Agreement,
the Agreement Among Underwriters, any Selected Dealer Agreements, any
Underwriters' Questionnaires, the Stockholders' Agreements, any Underwriters'
Powers of Attorney, and any invitation letters to prospective Underwriters,
(iv) furnishing (including costs of shipping and mailing) such copies of the
Registration Statement, the Prospectus and any preliminary prospectus, and all
amendments and supplements thereto, as may reasonably be requested for use in
connection with the offering and sale of the Shares by the Underwriters or by
dealers to whom Shares may be sold, (v) the listing of the Shares on the NNM,
(vi) any filings required to be made by the Underwriters with the NASD, and the
filing fees in connection therewith, (vii) the registration or qualification of
the Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated pursuant to Section 5(f), including the fees,
disbursements and other reasonable charges of counsel to the Underwriters in
connection therewith, and the preparation and printing of preliminary,
supplemental and final Blue Sky memoranda, (viii) fees, disbursements and other
charges of counsel to the Company (but not those of counsel for the
Underwriters, except as otherwise provided herein) and (ix) the transfer agent
for the Shares. The Selling Stockholders will pay (directly or by
reimbursement) all fees and expenses incident to the performance of their
obligations under this Agreement that are not otherwise specifically provided
for herein, including but not limited to any fees and expenses of any counsel
for such Selling Stockholders, any fees and expenses of the Attorneys-in-Fact
and the Custodian, and all expenses and taxes incident
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to the sale and delivery of the Shares to be sold by such Selling Stockholders
to the Underwriters hereunder.
(k) The Company will not at any time, directly or indirectly, take
any action designed or which might reasonably be expected to cause or result
in, or which will constitute, stabilization of the price of the shares of
Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and
sale of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds" and shall file such reports with the
Commission with respect to the sale of the Shares and the application of the
proceeds therefrom as may be required in accordance with Rule 463 under the
Act.
(m) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
without the prior written consent of ▇▇▇▇▇▇▇ & Company, Inc., the Company will
not offer, sell, contract to sell, grant options to purchase or otherwise
dispose of any of the Company's equity securities of the Company or any other
securities convertible into or exchangeable with its Common Stock or other
equity security (other than the sale of Shares hereunder or pursuant to
employee stock option or stock purchase plans or the conversion of convertible
securities or the exercise of warrants or options outstanding on the date of
this Agreement).
(n) During the period of 180 days after the date of the
Prospectus, the Company will not, without the prior written consent of ▇▇▇▇▇▇▇
& Company, Inc., grant options to purchase shares of Common Stock at a price
less than the fair market value of the shares. During the period of 180 days
after the date of the Prospectus, the Company will not file with the Commission
or cause to become effective any registration statement relating to any
securities of the Company without the prior written consent of ▇▇▇▇▇▇▇ &
Company, Inc., except for the registration of shares issued or issuable under
employee stock option or stock purchase plans registered on Form S-8 or any
successor form thereto.
(o) The Selling Stockholders will have, and the Company will have
caused each of its officers, directors and certain stockholders designated by
the Representatives to, enter into lock-up agreements with the Representatives
to the effect that they will not, without the prior written consent of ▇▇▇▇▇▇▇
& Company, Inc., sell, contract to sell or otherwise dispose of any shares of
Common Stock or rights to acquire such shares according to the terms set forth
in Schedule III hereto.
(p) The Company will not file with the Commission any registration
statement on Form S-8 relating to shares of its Common Stock prior to 90 days
after the effective date of the Registration Statement.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of each Underwriter hereunder are subject to the following
conditions:
(a) Notification that the Registration Statement has become
effective shall be received by the Representatives not later than 5:00 p.m.,
New York City time, on the date of this Agreement or at such later date and
time as shall be consented to in writing by the Representatives and all filings
required by Rule 424 and Rule 430A of the Rules and Regulations shall have been
made within the time period required by such Rules and Regulations.
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(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the
Commission or such authorities and (iv) after the date hereof no amendment or
supplement to the Registration Statement or the Prospectus shall have been
filed unless a copy thereof was first submitted to the Representatives and the
Representatives do not object thereto in good faith, and the Representatives
shall have received certificates, dated the Closing Date and, if later, the
Option Closing Date and signed by the Chief Executive Officer and the Chief
Financial Officer of the Company (who may, as to proceedings threatened, rely
upon the best of their information and belief), to the effect of clauses (i),
(ii) and (iii) of this paragraph.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there shall not have been a
material adverse change in the general affairs, business, business prospects,
properties, management, condition (financial or otherwise) or results of
operations of the Company and the Subsidiary, taken as a whole, whether or not
arising from transactions in the ordinary course of business, in each case
other than as described in or contemplated by the Registration Statement and
the Prospectus, and (ii) the Company shall not have sustained any material loss
or interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental action, order or decree,
which is not described in the Registration Statement and the Prospectus, if in
the reasonable judgment of the Representatives any such development makes it
impracticable or inadvisable to consummate the sale and delivery of the Shares
by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company, the Subsidiary,
or any of their officers or directors in their capacities as such, before or by
any Federal, state or local court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, in which litigation or
proceeding an unfavorable ruling, decision or finding would, in the reasonable
judgment of the Representatives, materially and adversely affect the business,
properties, business prospects, condition (financial or otherwise) or results
of operations of the Company and the Subsidiary, taken as a whole.
(e) Each of the representations and warranties of the Company and
the Selling Stockholders contained herein shall be true and correct in all
material respects at the Closing Date and, with respect to the Option Shares,
at the Option Closing Date, and all covenants and agreements contained herein
to be performed on the part of the Company or the Selling Stockholders and all
conditions contained herein to be fulfilled or complied with by the Company or
the Selling Stockholders at or prior to the Closing Date and, with respect to
the Option Shares, at or prior to the Option Closing Date, shall have been duly
performed, fulfilled or complied with.
(f) The Representatives shall have received an opinion, dated the
Closing Date and, with respect to the Option Shares, the Option Closing Date,
reasonably satisfactory in form and substance to
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the Representatives and counsel for the Underwriters from Stradling, Yocca,
▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company and the Selling Stockholders, with
respect to the following matters:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation; has full corporate power and authority to conduct all the
activities conducted by it, to own or lease all the assets owed or leased by it
and to conduct its business as described in the Registration Statement and
Prospectus; and is duly licensed or qualified to do business and is in good
standing as a foreign corporation in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets owned or leased
by it makes such license or qualification necessary and where the failure to be
licensed or qualified would have a material and adverse effect on the business
or financial condition of the Company and the Subsidiary, taken as a whole.
(ii) All of the outstanding shares of capital stock of the
Company (including the Selling Stockholder Shares and the Option Shares) have
been duly authorized, validly issued and are fully paid and nonassessable, to
such counsel's knowledge, were issued pursuant to exemptions from the
registration and qualification requirements of federal and applicable state
securities laws, and were not issued in violation of or subject to any
preemptive or, to such counsel's knowledge, similar rights.
(iii) The specimen certificate evidencing the Common Stock
filed as an exhibit to the Registration Statement is in due and proper form
under Delaware law, the Shares to be sold by the Company hereunder have been
duly authorized and, when issued and paid for as contemplated by this
Agreement, will be validly issued, fully paid and nonassessable; and no
preemptive or similar rights exist with respect to any of the Shares or the
issue and sale thereof.
(iv) To such counsel's knowledge, other than the ownership
of Shares of Stock of the Subsidiary, the Company does not own or control,
directly or indirectly, any shares of stock or any other equity or long-term
debt securities of any corporation or have any equity interest in any
corporation, firm, partnership, joint venture, association or other entity. All
of the outstanding shares of capital stock of the Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable, and owned
by the Company free and clear of all claims, liens, charges and encumbrances
other than on restrictions on transfer under applicable securities laws; to
such counsel's knowledge, there are no securities outstanding that are
convertible into or exercisable or exchangeable for capital stock of the
Subsidiary.
(v) As of June 30, 1997, the authorized and outstanding
capital stock of the Company was as set forth in the Registration Statement and
the Prospectus in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to this
Agreement or pursuant to reservations, agreements, employee benefit plans or
the exercise of convertible securities, options or warrants referred to in the
Prospectus). To such counsel's knowledge, except as disclosed in or
specifically contemplated by the Prospectus, there are no outstanding options,
warrants of other rights calling for the issuance of, and no commitments, plans
or arrangements to issue, any shares of capital stock of the Company or any
security convertible into or exchangeable or exercisable for capital stock of
the Company. The description of the capital stock of the Company in the
Registration Statement and the Prospectus conforms in all material respects to
the terms thereof.
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(vi) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the Company or the
Subsidiary is a party or to which any of their respective properties is
subject.
(vii) No consent, approval, authorization or order of, or
any filing or declaration with, any court or governmental agency or body is
required for the consummation by the Company of the transactions on its part
contemplated under this Agreement, except such as have been obtained or made
under the Act or the Rules and Regulations and such as may be required under
state securities or Blue Sky laws or the by- laws and rules of the NASD in
connection with the purchase and distribution by the Underwriters of the
Shares.
(viii) The Company has full corporate power and authority to
enter into this Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(ix) The execution and delivery of this Agreement, the
compliance by the Company with all of the terms hereof and the consummation of
the transactions contemplated hereby does not contravene any provision of the
certificate of incorporation or by-laws of the Company, and to the best of such
counsel's knowledge will not result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company pursuant to the
terms and provisions of, result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any party a right to
terminate any of its obligations under, or result in the acceleration of any
obligation under any agreement or instrument filed as an exhibit to the
Registration Statement, or violate or conflict with (i) any judgment, ruling,
decree or order known to such counsel or (ii) any California or federal
statute, rule or regulation of any court or other California or federal
governmental agency or body that such counsel has, in the exercise of customary
professional diligence, recognized as applicable to the business or properties
of the Company or to the transactions of the type contemplated by the
Agreement.
(x) To such counsel's knowledge, there is no document or
contract of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required, and each description of such
contracts and documents that is contained in the Registration Statement and
Prospectus fairly presents in all material respects the information required
under the Act and the Rules and Regulations.
(xi) The statements under the captions "Risk Factors -3/4
Shares Eligible for Future Sale; Registration Rights," "Risk Factors -3/4
Potential Effect of Anti-Takeover Provisions," "Management -3/4 Stock Benefit
Plans," "Management-3/4Limitation of Liability and Indemnification Matters, "
"Description of Capital Stock" and "Shares Eligible for Future Sale" in the
Prospectus, insofar as the statements constitute a summary of documents
referred to therein or matters of law, are accurate summaries and fairly and
correctly present, in all material respects, the information called for with
respect to such documents and matters (provided, however, that such counsel may
rely on representations of the Company with respect to the factual matters
contained in such statements, and provided further that such counsel shall
state that nothing has come to the attention of such counsel which leads them
to believe that such representations are not true and correct in all material
respects).
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(xii) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act
of 1940, as amended.
(xiii) The Selling Stockholder Shares are duly listed on the
NNM and the Company Shares have been duly authorized for listing on the NNM,
subject to notice of issuance.
(xiv) To such counsel's knowledge, no holder of securities
of the Company has rights, which have not been waived or satisfied, to require
the registration with the Commission of shares of Common Stock or other
securities, as part of the offering contemplated hereby.
(xv) The Registration Statement has become effective under
the Act, and to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or is pending, threatened or
contemplated.
(xvi) The Registration Statement and the Prospectus comply
as to form in all material respects with the requirement of the Act and the
Rules and Regulations (other than the financial statements, notes to financial
statements, schedules and other financial or statistical data contained in the
Registration Statement or the Prospectus, as to which such counsel need express
no opinion).
(xvii) This Agreement and the Stockholders' Agreement have
each been duly executed and delivered by or on behalf of each Selling
Stockholder; the Stockholders' Agreement constitutes a valid and binding
agreement of such Selling Stockholder in accordance with its terms, except as
enforceability may be limited by the application of bankruptcy, insolvency or
other laws affecting creditors' rights generally or by general principles of
equity; the Attorneys-in-Fact and the Custodian have been duly authorized by
such Selling Stockholder to deliver the Shares on behalf of such Selling
Stockholder in accordance with the terms of this Agreement.
(xviii) To the best of such counsel's knowledge, no consent,
approval, authorization or order of, or any filing or declaration with, any
court or governmental agency or body is required for the consummation by the
Selling Stockholders of the transactions on their part contemplated by this
Agreement, except such as have been obtained or made under the Act or the Rules
and Regulations and such as may be required under state securities or Blue Sky
laws or the by-laws and rules of the NASD in connection with the purchase and
distribution by the Underwriters of the Shares.
(xix) Each Selling Stockholder has full legal right, power
and authority to enter into this Agreement and the Stockholders' Agreement and
to sell, assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder and, upon payment for such Shares and assuming that the
Underwriters are purchasing such Shares in good faith and without notice of any
other adverse claim within the meaning of the Uniform Commercial Code, the
Underwriters will have acquired all rights of such Selling Stockholder in such
Shares free of any adverse claim, any lien in favor of the Company and any
restrictions on transfer imposed by the Company.
In addition, such counsel shall state that such counsel has
participated in the preparation of the Registration Statement and Prospectus
and has no reason to believe that, as of the Effective Date, the Registration
Statement, or any amendment or supplement thereto, (other than the
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financial statements, schedules and other financial or statistical data
contained therein, as to which such counsel need express no comment) contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, or any amendment or supplement thereto, as
of its date and the Closing Date and, if later, the Option Closing Date,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (other
than the financial statements, notes to financial statements, schedules and
other financial or statistical data contained therein, as to which such counsel
need express no comment).
In rendering the opinions in subparagraphs (xvii) - (xix), such
counsel may rely upon opinions of other counsel retained by the Selling
Stockholders reasonably acceptable to the Representatives and as to matters of
fact on certificates of the Selling Stockholders, officers of the Company and
governmental officials and the representations and warranties of the Company
and the Selling Stockholders contained in this Agreement and the Stockholders'
Agreement, provided that the opinion of counsel to the Company and Selling
Stockholders shall state that they are doing so, that they have no reason to
believe that they and the Underwriters are not entitled to rely on such
opinions or certificates and that copies of such opinions or certificates are
to be attached to the opinion.
(g) The representatives shall have received an opinion, dated the
Closing Date and the Option Closing Date, from McCutchen, Doyle, ▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, with respect to the Registration
Statement, the Prospectus and this Agreement, which opinion shall be
satisfactory in all respects to the Representatives.
(h) Concurrently with the execution and delivery of this
Agreement, the Accountants shall have furnished to the Representatives a
letter, dated the date of its delivery, addressed to the Representatives and in
form and substance reasonably satisfactory to the Representatives, confirming
that they are independent accountants with respect to the Company and the
Subsidiary as required by the Act and the Rules and Regulations and with
respect to certain financial and other statistical and numerical information
contained in the Registration Statement. At the Closing Date and, as to the
Option Shares, the Option Closing Date, the Accountants shall have furnished to
the Representatives a letter, dated the date of its delivery, which shall
confirm, on the basis of a review in accordance with the procedures set forth
in the letter from the Accountants, that nothing has come to their attention
during the period from the date of the letter referred to in the prior sentence
to a date (specified in the letter) not more than five days prior to the
Closing Date and the Option Closing Date, as the case may be, which would
require any change in their letter dated the date hereof if it were required to
be dated and delivered at the Closing Date and the Option Closing Date.
(i) Concurrently with the execution and delivery of this Agreement
and at the Closing Date and, as to the Option Shares, the Option Closing Date,
there shall be furnished to the Representatives a certificate, dated the date
of its delivery, signed by each of the Chief Executive Officer and the Chief
Financial Officer of the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each signer of such certificate has carefully
examined the Registration Statement and the Prospectus and (A) as of the date
of such certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be stated therein
or
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necessary in order to make the statements therein not untrue or misleading and
(B) in the case of the certificate delivered at the Closing Date and the Option
Closing Date, since the Effective Date no event has occurred as a result of
which it is necessary to amend or supplement the Prospectus in order to make
the statements therein not untrue or misleading.
(ii) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made, and are, at the
time such certificate is delivered, true and correct.
(iii) Each of the covenants required to be performed by the
Company herein on or prior to the date of such certificate has been duly,
timely and fully performed and each condition herein required to be satisfied
or fulfilled on or prior to the date of such certificate has been duly, timely
and fully satisfied or fulfilled.
(j) Concurrently with the execution and delivery of this Agreement
and at the Closing Date and, as to the Option Shares, the Option Closing Date,
there shall be furnished to the Representatives a certificate, dated the date
of its delivery, signed by the Selling Stockholders (or the Attorneys-in-Fact
on their behalf), in form and substance satisfactory to the Representatives, to
the effect that the representations and warranties of the Selling Stockholders
contained herein are true and correct in all material respects on and as of the
date of such certificate as if made on and as of the date of such certificate,
and each of the covenants and conditions required herein to be performed or
complied with by the Selling Stockholders on or prior to the date of such
certificate has been duly, timely and fully performed or complied with.
(k) On or prior to the Closing Date, the Representatives shall
have received the executed agreements referred to in Section 5(o).
(l) The Shares shall be qualified for sale in such jurisdictions
as the Representatives may reasonably request and each such qualification shall
be in effect and not subject to any stop order or other proceeding on the
Closing Date or the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly
authorized for listing on the NNM upon official notice of issuance.
(n) The Company and the Selling Stockholders shall have furnished
to the Representatives such certificates, in addition to those specifically
mentioned herein, as the Representatives may have reasonably requested as to
the accuracy and completeness at the Closing Date and the Option Closing Date
of any statement in the Registration Statement or the Prospectus, as to the
accuracy at the Closing Date and the Option Closing Date of the representations
and warranties of the Company and the Selling Stockholders herein, as to the
performance by the Company and the Selling Stockholders of its and their
respective obligations hereunder, or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the Representatives.
7. INDEMNIFICATION.
(a) The Company and each of the Selling Stockholders, jointly and
severally, will indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person, if any, who
controls each Underwriter within the meaning of Section 15
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of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, liabilities, expenses and damages (including any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based on any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus, or the omission or alleged omission
to state in such document a material fact required to be stated in it or
necessary to make the statements in it not misleading in the light of the
circumstances in which they were made, or arise out of or are based in whole or
in part on any inaccuracy in the representations and warranties of the Company
or the Selling Stockholders contained herein or any failure of the Company or
the Selling Stockholders to perform its or their obligations hereunder or under
law in connection with the transactions contemplated hereby; provided, however,
that (i) the Company and the Selling Stockholders will not be liable to the
extent that such loss, claim, liability, expense or damage arises from the sale
of the Shares in the public offering to any person by an Underwriter and is
based on an untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Representatives, on
behalf of any Underwriter, expressly for inclusion in the Registration
Statement, the preliminary prospectus or the Prospectus; (ii) the Company and
the Selling Stockholders will not be liable to any Underwriter, the directors,
officers, employees or agents of such Underwriter or any person controlling
such Underwriter with respect to any loss, claim, liability, expense, or damage
arising out of or based on any untrue statement or omission or alleged untrue
statement or omission or alleged omission to state a material fact in the
preliminary prospectus which is corrected in the Prospectus if the person
asserting any such loss, claim, liability, charge or damage purchased Shares
from such Underwriter but was not sent or given a copy of the Prospectus at or
prior to the written confirmation of the sale of such Shares to such person;
(iii) the liability of each Selling Stockholder under this Section 7(a) shall
not exceed the product of the purchase price for each Share set forth in
Section 1(a) hereof multiplied by the number of Shares sold by such Selling
Stockholder hereunder; and (iv) the liability of each Selling Stockholder under
this Section 7(a) shall not exceed such Selling Stockholder's pro rata share of
the aggregate liability paid by all Selling Stockholders, based upon the number
of Shares sold by Selling Stockholders. The Company and the Selling
Stockholders acknowledge that the statements set forth under the heading
"Underwriting" in the preliminary prospectus and the Prospectus constitute the
only information relating to any Underwriter furnished in writing to the
Company by the Representatives on behalf of the Underwriters expressly for
inclusion in the Registration Statement, the preliminary prospectus or the
Prospectus. This indemnity agreement will be in addition to any liability that
the Company and the Selling Stockholders might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company,
each director of the Company, each officer of the Company who signs the
Registration Statement, each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
each Selling Stockholder to the same extent as the foregoing indemnity from the
Company and each Selling Stockholder to each Underwriter, as set forth in
Section 7(a), but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company by
the Representatives, on behalf of such Underwriter, expressly for use in the
Registration Statement, the preliminary prospectus or the
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Prospectus. The Company and the Selling Stockholders acknowledge that the
statements set forth under the heading "Underwriting" in the preliminary
prospectus and the Prospectus constitute the only information relating to any
Underwriter furnished in writing to the Company by the Representatives on
behalf of the Underwriters expressly for inclusion in the Registration
Statement, the preliminary prospectus or the Prospectus. This indemnity will be
in addition to any liability that each Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 shall, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify each such
indemnifying party in writing of the commencement of such action, enclosing
with such notice a copy of all papers served, but the omission so to notify
such indemnifying party will not relieve it from any liability that it may have
to any indemnified party under the foregoing provisions of this Section 7
unless, and only to the extent that, such omission results in the loss of
substantive rights or defenses by the indemnifying party. If any such action is
brought against any indemnified party and it notifies the indemnifying party of
its commencement, the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the commencement of the
action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified
party in connection with the defense. The indemnified party will have the right
to employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(i) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of
the indemnified party) or (iii) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted
to practice in such jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges will be reimbursed
by the indemnifying party promptly as they are incurred. Any indemnifying party
will not be liable for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably withheld).
(d) If the indemnification provided for in this Section 7 is
applicable in accordance with its terms but for any reason is held to be
unavailable to or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) and (c) of this Section 7 in respect of any losses, claims,
liabilities, expenses and damages referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable (including any investigative, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted, but
after deducting any contribution
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received by the Company or the Selling Stockholders from persons other than the
Underwriters, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and
directors of the Company, who also may be liable for contribution) by such
indemnified party as a result of such losses, claims, liabilities, expenses and
damages in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders, on the one hand,
and the Underwriters, on the other hand. The relative benefits received by the
Company and the Selling Stockholders, on the one hand, and the Underwriters, on
the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence
but also the relative fault of the Company and the Selling Stockholders, on the
one hand, and the Underwriters, on the other hand, with respect to the
statements or omissions which resulted in such loss, claim, liability, expense
or damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Stockholders or the Representatives on behalf of the Underwriters, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss claim, liability,
expense or damage, or action in respect thereof, referred to above in this
Section 7(d) shall be deemed to include, for purposes of this Section 7(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts
received by it and no Selling Stockholder shall be required to contribute any
amount in excess of the net proceeds from the offering received by such Selling
Stockholder and no person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) will be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 7(d) are
several in proportion to their respective underwriting obligations and not
joint. For purposes of this Section 7(d), any person who controls a party to
this Agreement within the meaning of the Act will have the same rights to
contribution as that party, and each officer of the Company who signed the
Registration Statement will have the same rights to contribution as the
Company, subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against any such party in respect of which a claim for contribution may be made
under this Section 7(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 7(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
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(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company and the Selling
Stockholders contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of
the Underwriters, (ii) acceptance of any of the Shares and payment therefor or
(iii) any termination of this Agreement.
8. REIMBURSEMENT OF CERTAIN EXPENSES. In addition to its other
obligations under Section 7(a) of this Agreement, the Company hereby agrees to
reimburse on a quarterly basis the Underwriters for all reasonable legal and
other expenses incurred in connection with investigating or defending any
claim, action, investigation, inquiry or other proceeding arising out of or
based upon, in whole or in part, any statement or omission or alleged statement
or omission, or any inaccuracy in the representations and warranties of the
Company or the Selling Stockholders contained herein or failure of the Company
or the Selling Stockholders to perform its or their respective obligations
hereunder or under law, all as described in Section 7(a), notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the obligations under this Section 8 and the possibility that such payment
might later be held to be improper; provided, however, that, to the extent any
such payment is ultimately held to be improper, the persons receiving such
payments shall promptly refund them.
9. TERMINATION. The obligations of the several Underwriters under
this Agreement may be terminated at any time on or prior to the Closing Date
(or, with respect to the Option Shares, on or prior to the Option Closing
Date), by notice to the Company and the Selling Stockholders from the
Representatives, without liability on the part of any Underwriter to the
Company if, prior to delivery and payment for the Firm Shares or Option Shares,
as the case may be, in the reasonable judgment of the Representatives, (i)
trading in any of the equity securities of the Company shall have been
suspended by the Commission or by The Nasdaq Stock Market, (ii) trading in
securities generally on The Nasdaq Stock Market shall have been suspended or
limited or minimum or maximum prices shall have been generally established on
such exchange, or additional material governmental restrictions, not in force
on the date of this Agreement, shall have been imposed upon trading in
securities generally by such exchange, by order of the Commission or any court
or other governmental authority, or by The Nasdaq Stock Market, (iii) a general
banking moratorium shall have been declared by Federal or New York State or
California authorities or (iv) any material adverse change in the financial or
securities markets in the United States or in political, financial or economic
conditions in the United States or any outbreak or material escalation of
hostilities or other calamity or crisis shall have occurred, the effect of
which is such as to make it, in the reasonable judgment of the Representatives,
impracticable or inadvisable to proceed with completion of the public offering
or the delivery of and payment for the Shares.
If this Agreement is terminated pursuant to Section 9 or 10 hereof,
neither the Company nor any Selling Stockholder shall be under any liability to
any Underwriter except as provided in Sections 5(j), 7 and 8 hereof.
10. SUBSTITUTION OF UNDERWRITERS. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Firm Shares which it
or they have agreed to purchase hereunder, and the aggregate number of Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate number of Firm
Shares, the other Underwriters shall be obligated, severally, to purchase the
Firm Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase, in the proportions which the
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number of Firm Shares which they have respectively agreed to purchase pursuant
to Section 1 bears to the aggregate number of Firm Shares which all such
non-defaulting Underwriters have so agreed to purchase, or in such other
proportions as the Representatives may specify; provided that in no event shall
the maximum number of Firm Shares which any Underwriter has become obligated to
purchase pursuant to Section 1 be increased pursuant to this Section 10 by more
than one-ninth of such number of Firm Shares without the prior written consent
of such Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase any Firm Shares and the aggregate number of Firm Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
exceeds one-tenth of the aggregate number of the Firm Shares and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Firm Shares are not made within 48 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Stockholders for the purchase or sale of any Shares
under this Agreement. In any such case either the Representatives or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Any action taken pursuant to this Section 10
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
11. MISCELLANEOUS.
(a) Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (i) if to the Company or the Selling Stockholders, at the office
of the Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇, with a copy to ▇.▇. ▇▇▇▇▇▇, Esq., Stradling, Yocca, ▇▇▇▇▇▇▇ & ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or (ii)
if to the Underwriters, to the Representatives at the offices of ▇▇▇▇▇▇▇ &
Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Finance Department, with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., McCutchen, Doyle, ▇▇▇▇▇
& Enersen, LLP, One Embarcadero Center, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇. Any such notice shall be effective only upon receipt. Any notice
under such Section 9 or 10 may be made by telex or telephone, but if so made
shall be subsequently confirmed in writing.
(b) This Agreement has been and is made solely for the benefit of
the several Underwriters, the Company, the Selling Stockholders and the
controlling persons, directors and officers referred to in Section 7, and their
respective successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. The term "successors and
assigns" as used in this Agreement shall not include a purchaser, as such
purchaser, of Shares from any of the several Underwriters.
(c) Any action required or permitted to be made by the
Representatives under this Agreement may be taken by them jointly or by ▇▇▇▇▇▇▇
& Company, Inc.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts
made and to be performed entirely within such State.
(e) This Agreement may be signed in two or more counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
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(f) In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(g) The Company and the Underwriters each hereby waive any right
they may have to a trial by jury in respect of any claim based upon or arising
out of this Agreement or the transactions contemplated hereby.
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Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
KOFAX IMAGE PRODUCTS, INC.
By:
--------------------------
Title:
-----------------------
SELLING STOCKHOLDERS
(named in Schedule II hereto)
By:
-------------------------
Attorney-in-Fact
Confirmed as of the date first
above mentioned:
▇▇▇▇▇▇▇ & COMPANY, INC.
Acting on behalf of themselves and as the
Representatives of the other several
Underwriters named in Schedule I hereto.
By: ▇▇▇▇▇▇▇ & Company, Inc.
By:
----------------------------------
Title:
------------------------------
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SCHEDULE I
UNDERWRITERS
NUMBER OF
FIRM
SHARES
UNDERWRITERS TO BE PURCHASED
------------ ---------------
▇▇▇▇▇▇▇ & Company, Inc.
Unterberg Harris
________
Total 2,000,000
=========
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SCHEDULE II
TOTAL NUMBER TOTAL NUMBER OF
OF FIRM SHARES OPTION SHARES
TO BE SOLD TO BE SOLD
---------- ----------
Kofax Image Products, Inc. 1,300,000
Aspen Venture Partners, L.P. 285,479 __________
Sigma Partners 175,230 __________
Sigma Associates 13,100 __________
Southern California Ventures 165,304 __________
▇▇▇▇▇▇▇ Family Trust 26,667 __________
▇▇▇▇▇ Trust 12,110 __________
Overland Enterprises, Ltd. 12,110 __________
TOTALS 2,000,000 300,000
========= =======
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SCHEDULE III
FORM OF LOCK-UP AGREEMENT
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