EXHIBIT 1
Draft of March 12, 1999
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_____SHARES/1/
LINKAGE SOLUTIONS, INC.
COMMON STOCK
PURCHASE AGREEMENT
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_____________________, 1999
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
BANCBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
As Representatives of the several
Underwriters named in Schedule II hereto
c/o U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Linkage Solutions, Inc., a Delaware corporation (the "Company"), and the
stockholders of the Company listed in Schedule I hereto (the "Selling
Stockholders") severally propose to sell to the several Underwriters named in
Schedule II hereto (the "Underwriters") an aggregate of __________ shares (the
"Firm Shares") of Common Stock, $.01 par value per share (the "Common Stock"),
of the Company. The Firm Shares consist of ________ authorized but unissued
shares of Common Stock to be issued and sold by the Company and ______
outstanding shares of Common Stock to be sold by the Selling Stockholders. The
Company has also granted to the several Underwriters an option to purchase up to
_______ additional shares of Common Stock on the terms and for the purposes set
forth in Section 3 hereof (the "Option Shares"). The Firm Shares and any Option
Shares purchased pursuant to this Purchase Agreement are herein collectively
called the "Securities."
The Company and the Selling Stockholders hereby confirm their agreement
with respect to the sale of the Securities to the several Underwriters, for whom
you are acting as Representatives (the "Representatives") as follows:
__________________
/1/ Plus an option to purchase up to _______ additional shares to cover
over-allotments.
1. Registration Statement and Prospectus. A registration statement on
-------------------------------------
Form S-1 (File No. 333-___________ ) with respect to the Securities, including a
preliminary form of prospectus, has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") promulgated thereunder and has been filed
with the Commission; one or more amendments to such registration statement have
also been so prepared and have been, or will be, so filed; and, if the Company
has elected to rely upon Rule 462(b) of the Rules and Regulations to increase
the size of the offering registered under the Act, the Company will prepare and
file with the Commission a registration statement with respect to such increase
pursuant to Rule 462(b). Copies of such registration statement(s) and
amendments and each related preliminary prospectus have been delivered to you.
If the Company has elected not to rely upon Rule 430A of the Rules and
Regulations, the Company has prepared and will promptly file an amendment to the
registration statement and an amended prospectus (including a term sheet meeting
the requirements of Rule 434 of the Rules and Regulations). If the Company has
elected to rely upon Rule 430A of the Rules and Regulations, it will prepare and
file a prospectus (or a term sheet meeting the requirements of Rule 434)
pursuant to Rule 424(b) that discloses the information previously omitted from
the prospectus in reliance upon Rule 430A. Such registration statement as
amended at the time it is or was declared effective by the Commission, and, in
the event of any amendment thereto after the effective date and prior to the
First Closing Date (as defined below), such registration statement as so amended
(but only from and after the effectiveness of such amendment), including a
registration statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the Act and
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rules 430A(b) or 434(d) of the Rules and
Regulations, is hereinafter called the "Registration Statement." The prospectus
included in the Registration Statement at the time it is or was declared
effective by the Commission is hereinafter called the "Prospectus," except that
if any prospectus (including any term sheet meeting the requirements of Rule 434
of the Rules and Regulations provided by the Company for use with a prospectus
subject to completion within the meaning of Rule 434 in order to meet the
requirements of Section 10(a) of the Rules and Regulations) filed by the Company
with the Commission pursuant to Rule 424(b) (and Rule 434, if applicable) of the
Rules and Regulations or any other such prospectus provided to the Underwriters
by the Company for use in connection with the offering of the Securities
(whether or not required to be filed by the Company with the Commission pursuant
to Rule 424(b) of the Rules and Regulations) differs from the prospectus on file
at the time the Registration Statement is or was declared effective by the
Commission, the term "Prospectus" shall refer to such differing prospectus
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) from and after the earlier of the time such prospectus is filed
with the Commission or transmitted to the Commission for filing pursuant to such
Rule 424(b) (and Rule 434, if applicable) and the time it is first provided to
the Underwriters by the Company for such use. The term "Preliminary Prospectus"
as used herein means any preliminary prospectus included in the Registration
Statement prior to the time it
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becomes or became effective under the Act and any prospectus subject to
completion as described in Rule 430A or 434 of the Rules and Regulations.
2. Representations and Warranties of the Company and the Selling
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Stockholders.
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(a) The Company represents and warrants to, and agrees with, the
several Underwriters as follows:
(i) No order preventing or suspending the use of any
Preliminary Prospectus issued by the Commission is in effect.
(ii) As of the time the Registration Statement (or any post-
effective amendment thereto, including a registration statement (if any)
filed pursuant to Rule 462(b) of the Rules and Regulations increasing the
size of the offering registered under the Act) is or was declared effective
by the Commission, upon the filing or first delivery to the Underwriters of
the Prospectus (or any supplement to the Prospectus (including any term
sheet meeting the requirements of Rule 434 of the Rules and Regulations))
and at the First Closing Date and Second Closing Date (as hereinafter
defined), (A) the Registration Statement and Prospectus (in each case, as
amended and/or supplemented) conformed or will conform in all material
respects to the requirements of the Act and the Rules and Regulations, (B)
the Registration Statement (as amended) did not or will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (C) the Prospectus (as amended or supplemented) did not
or will not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are or were
made, not misleading; except that the foregoing shall not apply to
statements in or omissions from any such document in reliance upon, and in
conformity with, written information furnished to the Company by you, or by
any Underwriter through you, specifically for use in the preparation
thereof. If the Registration Statement has been declared effective by the
Commission, no stop order suspending the effectiveness of the Registration
Statement is in effect, and, to the Company's knowledge, no proceeding for
that purpose has been initiated or threatened by the Commission.
(iii) The consolidated financial statements of the Company,
together with the notes thereto, set forth in the Registration Statement
and Prospectus comply in all material respects with the requirements of the
Act and fairly present, in all material respects, the consolidated
financial condition of the Company and its subsidiaries as of the dates
indicated and the results of their operations and changes in cash flows for
the periods therein specified in conformity with generally accepted
accounting principles consistently applied throughout the periods involved
(except as otherwise stated therein); and the supporting schedules included
in the Registration Statement present fairly the information required to be
stated therein. No other financial statements or schedules are
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required to be included in the Registration Statement or Prospectus.
Deloitte & Touche LLP, which has expressed its opinion with respect to the
financial statements and schedules filed as a part of the Registration
Statement and included in the Registration Statement and the Prospectus,
are independent public accountants as required by the Act and the Rules and
Regulations.
(iv) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation. Each of the Company and its
subsidiaries has corporate power and authority to own its properties and
conduct its business as described in the Registration Statement and the
Prospectus, and is duly qualified to do business as a foreign corporation
in good standing in each jurisdiction in which it owns or leases real
property or in which the conduct of its business makes such qualification
necessary, except, in either such case, where the failure to so qualify
would not result in a material adverse change in the business, financial
condition, property or consolidated results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Change").
(v) Except as otherwise disclosed in or contemplated by the
Registration Statement or Prospectus (as it may be amended or
supplemented), subsequent to the respective dates as of which information
is given in the Prospectus, (A) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability or
obligation, direct or contingent, not in the ordinary course of business,
or entered into any material transactions not in the ordinary course of
business; (B) there has been no dividend or distribution of any kind
declared or paid with respect to the Company's capital stock; and (C) there
has not been any change in the capital stock (other than a change in the
number of outstanding shares of Common Stock due to the issuance of shares
upon the exercise of outstanding options or warrants), or any material
change in the short-term or long-term debt, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital
stock, of the Company or any of its subsidiaries, or any Material Adverse
Change, or any development that could reasonably be expected to result in a
prospective Material Adverse Change.
(vi) Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Company, threatened, any action, suit or
proceeding to which the Company or any of its subsidiaries is a party
before or by any court or governmental agency, authority or body, or any
arbitrator, which, if decided adversely, could reasonably be expected to
result in a Material Adverse Change.
(vii) There are no contracts or documents of the Company or any
of its subsidiaries that are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations that have
not been so filed.
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(viii) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as rights to indemnity and contribution hereunder
may be limited by federal or state securities laws and matters of public
policy and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity. The
execution, delivery and performance of this Agreement by the Company and
the consummation by the Company of the transactions herein contemplated
will not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any agreement or instrument
to which the Company is a party or by which it is bound or to which any of
its property is subject, except for such breaches, violations, or defaults
as would not, individually or in the aggregate, result in a Material
Adverse Change, the Company's charter or by-laws, or any order, rule,
regulation or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; no consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of this Agreement or for the consummation by the
Company of the transactions contemplated hereby, including the issuance or
sale of the Securities by the Company, except such as may be required under
the Act or state securities or blue sky laws or by the National Association
of Securities Dealers, Inc. (the "NASD"); and the Company has full power
and authority to enter into this Agreement and to authorize, issue and sell
the Securities to be sold by it as contemplated by this Agreement.
(ix) All of the issued and outstanding shares of capital stock
of the Company, including the outstanding shares of Common Stock, are duly
authorized and validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, were not
issued in violation of any preemptive rights or other rights to subscribe
for or purchase securities; the Securities which may be sold hereunder by
the Company have been duly authorized and, when issued, delivered and paid
for in accordance with the terms hereof, will have been validly issued and
will be fully paid and nonassessable; and the capital stock of the Company,
including the Common Stock, conforms in all material respects to the
description thereof in the Registration Statement and the Prospectus.
Except as otherwise disclosed in or contemplated by the Registration
Statement or Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to the Company's charter,
by-laws or any agreement or other instrument to which the Company is a
party or by which the Company is bound, which, in any such case, will
survive the First Closing Date. Neither the filing of the Registration
Statement nor the offering or sale of the Securities as contemplated by
this Agreement gives rise to any rights for or relating to the registration
of any shares of Common Stock or other securities of the Company. All of
the issued and outstanding shares of capital stock of each of the Company's
subsidiaries have been duly and validly authorized and
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issued and are fully paid and nonassessable, and, except as otherwise
described in the Registration Statement and the Prospectus and except for
any directors' qualifying shares, the Company owns of record and
beneficially, free and clear of any security interests, claims, liens,
proxies, equities or other encumbrances, all of the issued and outstanding
shares of such stock. Except as disclosed in or contemplated by the
Registration Statement or Prospectus, there are no options, warrants,
agreements, contracts or other rights in existence to purchase or acquire
from the Company or any subsidiary of the Company any shares of the capital
stock of the Company or any subsidiary of the Company. The Company has an
authorized and outstanding capitalization as set forth in the Registration
Statement and the Prospectus (other than for subsequent issuances pursuant
to employee stock plans described in the Prospectus or upon exercise of
outstanding options described in the Prospectus).
(x) The Company and each of its subsidiaries holds, and is
operating in compliance with, all franchises, grants, authorizations,
licenses, permits, easements, consents, certificates and orders of any
governmental or self-regulatory body required for the conduct of its
business and all such franchises, grants, authorizations, licenses,
permits, easements, consents, certifications and orders are valid and in
full force and effect, except where the failure to hold, or operate in
compliance with, any such franchises, grants, authorizations, licenses,
permits, easements, consents, certificates or orders or for any of such
items to be valid and in full force and effect would not cause a Material
Adverse Change; and the Company and each of its subsidiaries is in
compliance with all applicable federal, state, local and foreign laws,
regulations, orders and decrees, except where the failure to be in such
compliance would not cause a Material Adverse Change.
(xi) The Company and its subsidiaries own no real property. The
Company and its subsidiaries have good and valid title to all property
described in the Registration Statement and the Prospectus as being owned
by them, in each case free and clear of all liens, claims, security
interests or other encumbrances except such as are disclosed in the
Registration Statement or Prospectus or do not materially and adversely
affect the value of such property or do not materially interfere with the
use made or proposed to be made of such property by the Company and its
subsidiaries; the property held under lease by the Company and its
subsidiaries is held by them under valid and enforceable leases with only
such exceptions with respect to any particular lease as do not interfere in
any material respect with the conduct of the business of the Company or its
subsidiaries; except as disclosed in the Registration Statement or
Prospectus, the Company and each of its subsidiaries owns or possesses
sufficient patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service ▇▇▇▇ registrations, copyrights,
licenses, trade secrets and other similar rights (collectively,
"Intellectual Property Rights") reasonably necessary for the conduct of the
business of the Company and its subsidiaries as currently conducted; except
as disclosed in the Registration Statement or Prospectus, neither the
Company nor any of its subsidiaries has
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received any written notice of infringement or conflict with asserted
Intellectual Property Rights of others, which infringement or conflict, if
the subject of an unfavorable decision, would result in a Material Adverse
Change.
(xii) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in breach of or otherwise
in material default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note, indenture,
loan agreement or any other material contract, lease or other instrument to
which it is subject or by which any of them may be bound, or to which any
of the material property or assets of the Company or any of its
subsidiaries is subject.
(xiii) The Company and its subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns required to be
filed or have requested extensions thereof, except for those returns as to
which the failure to file would not, individually or in the aggregate, give
rise to a Material Adverse Change, and are not in default in the payment of
any taxes which were payable pursuant to said returns or any assessments
with respect thereto, other than any which the Company or any of its
subsidiaries is contesting in good faith.
(xiv) The Company has not distributed and will not distribute
any prospectus or other offering material in connection with the offering
and sale of the Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company.
(xv) The Common Stock has been approved for listing on the
Nasdaq National Market, subject only to official notice of issuance, and,
on the date the Registration Statement became or becomes effective, the
Company's Registration Statement on Form 8-A or other applicable form under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
became or will become effective.
(xvi) Other than the subsidiaries of the Company listed in
Exhibit 21 to the Registration Statement, the Company does not own or
control, directly or indirectly, any corporation, partnership, association,
trust or other entity.
(xvii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions
are executed in accordance with management's general or specific
authorization; (B)transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
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(xviii) Other than as contemplated by this Agreement, the
Company has not incurred any liability for any finder's or broker's fee or
agent's commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(xix) The Company is not, and upon the issuance and sale of the
Securities to be sold by the Company as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(b) Each Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with, the several Underwriters as follows:
(i) Such Selling Stockholder has, and on the First Closing
Date will have, valid and marketable title to the Securities to be sold by
such Selling Stockholder, free and clear of all security interests, claims,
liens, restrictions on transferability, legends, proxies, equities or other
encumbrances (except for restrictions on transfer contained in a
stockholders agreement between such Stockholder and the Company, which
restrictions shall not survive the First Closing Date, and restrictions and
legends imposed under applicable securities laws); and upon the
Underwriters obtaining control of the Securities to be sold by such Selling
Stockholder, and assuming the Underwriters purchased such Securities for
value and without notice of any adverse claim to such Securities within the
meaning of Section 8-102 of the Uniform Commercial Code as in effect in The
Commonwealth of Massachusetts, the several Underwriters will have acquired
all rights of such Selling Stockholders in such Securities free of any
adverse claim, any lien in favor of the Company and any restrictions on
transfer imposed by the Company. Such Selling Stockholder is selling the
Securities to be sold by such Selling Stockholder for such Selling
Stockholder's own account and is not selling such Securities, directly or
indirectly, for the benefit of the Company, and no part of the proceeds of
such sale received by such Selling Stockholder will inure, either directly
or indirectly, to the benefit of the Company other than as described in the
Registration Statement and the Prospectus.
(ii) Such Selling Stockholder has duly executed and delivered
a Custody Agreement ("Custody Agreement"), which Custody Agreement is a
valid and binding obligation of such Selling Stockholder, to Linkage
Solutions, Inc., as Custodian (the "Custodian"); pursuant to the Custody
Agreement the Selling Stockholder has placed in custody with the Custodian,
for delivery under this Agreement, the certificates representing the
Securities to be sold by such Selling Stockholder; such certificates
represent validly issued, fully paid and nonassessable shares of Common
Stock; and such certificates were duly and properly endorsed in blank for
transfer, or were accompanied by all documents duly and properly executed
that are necessary to validate the transfer of title thereto, to the
Underwriters.
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(iii) Such Selling Stockholder has the power and authority to
enter into this Agreement and to sell, transfer and deliver the Securities
to be sold by such Selling Stockholder hereunder; and such Selling
Stockholder has duly authorized, executed and delivered to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇, as attorneys-in-fact (the "Attorneys-in-Fact"),
an irrevocable power of attorney (a "Power of Attorney") authorizing and
directing the Attorneys-in-Fact, or either of them, to effect the sale and
delivery of the Securities being sold by such Selling Stockholder, to enter
into this Agreement and to take action hereunder.
(iv) This Agreement, the Custody Agreement and the Power of
Attorney have each been duly executed and delivered by or on behalf of such
Selling Stockholder and each constitutes a valid and binding agreement of
such Selling Stockholder, enforceable against such Selling Stockholder in
accordance with its terms, except as rights to indemnity or contribution
hereunder or thereunder may be limited by federal or state securities laws
or matters of public policy and except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or laws affecting the
rights of creditors generally and subject to general principles of equity.
The execution and delivery by or on behalf of such Selling Stockholder of
this Agreement, the Custody Agreement and the Power of Attorney and the
performance by or on behalf of such Selling Stockholder of the terms hereof
and thereof and the consummation by or on behalf of such Selling
Stockholder of the transactions herein and therein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder is
bound, or any law, regulation, order or decree applicable to such Selling
Stockholder; no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
execution, delivery and performance by or on behalf of such Selling
Stockholder of this Agreement, the Custody Agreement and the Power of
Attorney or for the consummation by or on behalf of such Selling
Stockholder of the transactions contemplated hereby and thereby, including
the sale of the Securities being sold by such Selling Stockholder, except
such as have been made and as may be required under the Act or state
securities laws or blue sky laws or by the NASD.
(v) Such Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Securities other than any Preliminary Prospectus
or the Prospectus or other materials permitted by the Act to be distributed
by such Selling Stockholder.
(vi) All information about such Selling Stockholder furnished by
or on behalf of such Selling Stockholder for use in the Registration
Statement and the Prospectus is, and on the First Closing Date will be,
true, correct and complete in all material respects and does not, and on
the First Closing Date will not, contain any untrue statement
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of a material fact or omit to state any material fact necessary to make
such information not misleading. Such Selling Stockholder confirms as
accurate the number of shares of Common Stock set forth opposite such
Selling Stockholder's name in the Prospectus under the caption "Principal
and Selling Stockholders" (both prior to and after giving effect to the
sale of the Securities).
(vii) To the knowledge of such Selling Stockholder, the
representations and warranties of the Company contained in paragraph (a) of
this Section 2 are true and correct in all material respects. Any claim for
damages for a breach of the representations and warranties of such Selling
Stockholder set forth in this Section 2(b)(vii) shall be limited to the
amount set forth in the last sentence of Section 6(a) hereof. In no event
shall such Selling Stockholder have any liability for damages under this
Section 2(b)(vii) unless the closing on the First Closing Date shall have
occurred.
(c) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters on the First Closing Date or
the Second Closing Date shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby; any certificate
signed by or on behalf of any Selling Stockholder as such and delivered to you
or to counsel for the Underwriters on the First Closing Date shall be deemed a
representation and warranty by such Selling Stockholder to each Underwriter as
to the matters covered thereby.
3. Purchase, Sale and Delivery of Securities.
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(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell _________ Firm Shares, and each Selling
Stockholder agrees, severally and not jointly, to sell the number of Firm Shares
set forth opposite the name of such Selling Stockholder in Schedule I hereto, to
the several Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholders the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule II
hereto. The purchase price for each Firm Share shall be $____ per share. The
obligation of each Underwriter to each of the Company and the Selling
Stockholders shall be to purchase from each of the Company and the Selling
Stockholders that number of Firm Shares (to be adjusted by the Representatives
to avoid fractional shares) which represents the same proportion of the number
of Firm Shares to be sold by each of the Company and the Selling Stockholders
pursuant to this Agreement as the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto represents to the total number of
Firm Shares to be purchased by all Underwriters pursuant to this Agreement. In
making this Agreement, each Underwriter is contracting severally and not
jointly; except as provided in paragraph (c) of this Section 3 and in Section 8
hereof, the agreement of each Underwriter is to purchase only the respective
number of Firm Shares specified in Schedule II.
The Firm Shares will be delivered by the Company and the Custodian to
you for the accounts of the several Underwriters against payment of the purchase
price therefor by wire transfer of immediately available funds to bank accounts
designated by the Company and the Custodian, as appropriate, at the offices of
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other location as may be mutually
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acceptable, at 9:00 a.m. Central time on the third (or if the Securities are
priced, as contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30
p.m. Eastern time, the fourth) full business day following the date hereof, or
at such other time and date as you and the Company determine pursuant to Rule
15c6-1(a) under the Exchange Act, such time and date of delivery being herein
referred to as the "First Closing Date." If the Representatives so elect,
delivery of the Firm Shares may be made by credit through full fast transfer to
the accounts at The Depository Trust Company designated by the Representatives.
Certificates representing the Firm Shares, in definitive form and in such
denominations and registered in such names as you may request upon at least two
business days' prior notice to the Company and the Custodian, will be made
available for checking and packaging not later than 10:30 a.m., Central time, on
the business day next preceding the First Closing Date at the offices of U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other location as may be mutually acceptable.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company hereby grants to the several Underwriters an option to purchase all or
any portion of the Option Shares at the same purchase price as the Firm Shares,
for use solely in covering any over-allotments made by the Underwriters in the
sale and distribution of the Firm Shares. The option granted hereunder may be
exercised at any time (but not more than once) within 30 days after the
effective date of this Agreement upon notice (confirmed in writing) by the
Representatives to the Company setting forth the aggregate number of Option
Shares as to which the several Underwriters are exercising the option, the names
and denominations in which the certificates for the Option Shares are to be
registered and the date and time, as determined by you, when the Option Shares
are to be delivered, such time and date being herein referred to as the "Second
Closing" and "Second Closing Date", respectively; provided, however, that the
Second Closing Date shall not be earlier than the First Closing Date nor earlier
than the third full business day after delivery of such notice of exercise. The
number of Option Shares to be purchased by each Underwriter shall be the same
percentage of the total number of Option Shares to be purchased by the several
Underwriters as the number of Firm Shares to be purchased by such Underwriter is
of the total number of Firm Shares to be purchased by the several Underwriters,
as adjusted by the Representatives in such manner as the Representatives deem
advisable to avoid fractional shares. No Option Shares shall be sold and
delivered unless the Firm Shares previously have been, or simultaneously are,
sold and delivered.
The Option Shares will be delivered by the Company to you for the
accounts of the several Underwriters against payment of the purchase price
therefor by wire transfer of immediately available funds to a bank account
designated by the Company at the offices of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.,
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such
other location as may be mutually acceptable at 9:00 a.m., Central time, on the
Second Closing Date. If the Representatives so elect, delivery of the Option
Shares may be made by credit through full fast transfer to the accounts at The
Depository Trust Company designated by the Representatives. Certificates
representing the Option Shares in definitive form and in such
-11-
denominations and registered in such names as you have set forth in your notice
of option exercise, will be made available for checking and packaging not later
than 10:30 a.m., Central time, on the business day next preceding the Second
Closing Date at the office of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other location as
may be mutually acceptable.
(c) It is understood that you, individually and not as
Representatives of the several Underwriters, may (but shall not be obligated to)
make payment to the Company or the Selling Stockholders, on behalf of any
Underwriter for the Securities to be purchased by such Underwriter. Any such
payment by you shall not relieve any such Underwriter of any of its obligations
hereunder. Nothing herein contained shall constitute any of the Underwriters an
unincorporated association or partner with the Company or any Selling
Stockholder.
4. Covenants.
---------
(a) The Company covenants and agrees with the several Underwriters as
follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to cause
the Registration Statement and any post-effective amendments thereto to
become effective as promptly as possible; the Company will notify you
promptly of the time when the Registration Statement or any post-effective
amendment to the Registration Statement has become effective or any
supplement to the Prospectus (including any term sheet within the meaning
of Rule 434 of the Rules and Regulations) has been filed and of any request
by the Commission for any amendment or supplement to the Registration
Statement or Prospectus or additional information; if the Company has
elected to rely on Rule 430A of the Rules and Regulations, the Company will
prepare and file a Prospectus (or term sheet within the meaning of Rule 434
of the Rules and Regulations) containing the information omitted therefrom
pursuant to Rule 430A of the Rules and Regulations with the Commission
within the time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules and
Regulations; if the Company has elected to rely upon Rule 462(b) of the
Rules and Regulations to increase the size of the offering registered under
the Act, the Company will prepare and file a registration statement with
respect to such increase with the Commission within the time period
required by, and otherwise in accordance with the provisions of, Rule
462(b); the Company will prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the Registration
Statement or Prospectus (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations) that, in your opinion, may be
reasonably necessary to make any required changes in the description of the
plan of distribution of the Securities set forth therein; and the Company
will not file any amendment or supplement to the Registration Statement or
Prospectus (including any term sheet within the meaning of Rule 434 of the
Rules and Regulations) to which you
-12-
shall reasonably object by notice to the Company after having been
furnished a copy a reasonable time prior to the filing.
(ii) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and the Company will
promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such a stop order should be issued.
(iii) Within the time during which a prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations)
relating to the Securities is required to be delivered under the Act, the
Company will comply as far as it is able with all requirements imposed upon
it by the Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealings in the Securities as contemplated
by the provisions hereof and the Prospectus. If during such period any
event occurs as a result of which the Prospectus would include an 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, or if during such period it is necessary to
amend the Registration Statement or supplement the Prospectus to comply
with the Act, the Company will promptly notify you and will amend the
Registration Statement or supplement the Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such
compliance.
(iv) The Company will cooperate with the Representatives and
counsel for the Underwriters in qualifying the Securities for sale under
the securities laws of such jurisdictions as you reasonably designate and
to continue such qualifications in effect so long as required for the
distribution of the Securities, except that the Company shall not be
required in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(v) The Company will furnish to the Underwriters copies of the
Registration Statement (three of which will be signed and will include all
exhibits), each Preliminary Prospectus, the Prospectus, and all amendments
and supplements (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations) to such documents, in each case as soon as
available and in such quantities as you may from time to time reasonably
request.
(vi) During a period of five years commencing with the date
hereof, the Company will furnish to the Representatives, and to each
Underwriter who may so request in writing, copies of all periodic and
special reports furnished to the stockholders of the
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Company and all information, documents and reports filed with the
Commission, the National Association of Securities Dealers, Inc., the
Nasdaq National Market or any securities exchange.
(vii) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15 months
after the end of the Company's current fiscal quarter, an earnings
statement (which need not be audited) covering a 12-month period beginning
after the effective date of the Registration Statement that shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(viii) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming
effective under the provisions of Section 9(a) hereof or is terminated,
will pay or cause to be paid (A) all expenses (including transfer taxes
allocated to the respective transferees) incurred in connection with the
delivery to the Underwriters of the Securities, (B) all expenses and fees
(including, without limitation, fees and expenses of the Company's
accountants and counsel but, except as otherwise provided below, not
including fees of the Underwriters' counsel) in connection with the
preparation, printing, filing, delivery, and shipping of the Registration
Statement (including the financial statements therein and all amendments,
schedules, and exhibits thereto), the Securities, each Preliminary
Prospectus, the Prospectus, and any amendment thereof or supplement
thereto, and the printing, delivery, and shipping of this Agreement and
other underwriting documents, including Blue Sky Memoranda, (C) all filing
fees and fees and disbursements of the Underwriters' counsel incurred in
connection with the qualification of the Securities for offering and sale
by the Underwriters or by dealers under the securities or blue sky laws of
the states and other jurisdictions which you shall designate in accordance
with Section 4(a)(iv) hereof, (D) the fees and expenses of any transfer
agent or registrar, (E) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with,
any required review by the National Association of Securities Dealers, Inc.
of the terms of the sale of the Securities, (F) listing fees, if any, and
(G) all other costs and expenses incident to the performance of the
Company's obligations hereunder that are not otherwise specifically
provided for herein. If the sale of the Securities provided for herein is
not consummated by reason of action by the Company pursuant to Section 9(a)
hereof which prevents this Agreement from becoming effective, or by reason
of any failure, refusal or inability on the part of the Company or the
Selling Stockholders to perform any agreement on its or their part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company or the Selling
Stockholders is not fulfilled, the Company will reimburse the several
Underwriters for all out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in connection with
their investigation, preparing to market and marketing the Securities or in
contemplation of performing their obligations hereunder. The Company shall
not in
-14-
any event be liable to any of the Underwriters for loss of anticipated
profits from the transactions covered by this Agreement.
(ix) The Company will apply the net proceeds from the sale of
the Securities to be sold by it hereunder for the purposes set forth in the
Prospectus and will file such reports with the Commission with respect to
the sale of the Securities and the application of the proceeds therefrom as
may be required in accordance with Rule 463 of the Rules and Regulations.
(x) During the 180-day period following the date of the
Prospectus, the Company will not, without the prior written consent of U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., offer for sale, sell, contract to sell, grant
any option for the sale of or otherwise issue or dispose of any Common
Stock or any securities convertible into or exchangeable for, or any
options, swaps, collars or other derivatives on or rights to purchase or
acquire, Common Stock, except that the foregoing shall not apply to (i) the
Securities to be sold to the Underwriters pursuant to this Agreement, (ii)
shares of Common Stock issued by the Company upon the exercise of an option
or warrant or the conversion of a security or pursuant to any other
commitment outstanding on the date hereof and referred to in the
Prospectus, (iii) options to purchase Common Stock under any stock option,
stock bonus or other stock plan or arrangement described in the Prospectus,
provided that no such options will become exercisable during such 180-day
period, or (iv) shares of Common Stock issued as payment for all or part of
the purchase price of an acquisition by the Company or any of its
subsidiaries of another company or business, provided that each person or
entity receiving any such shares in connection with such acquisition agrees
in writing with U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. not to sell, offer, dispose
of or otherwise transfer any such share during the remainder of such 180-
day period without the prior written consent of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc.
(xi) The Company either has caused to be delivered to you or
will cause to be delivered to you prior to the effective date of the
Registration Statement a letter in the form of Exhibit A hereto from each
of the persons listed on Schedule III hereto.
(xii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities, and has not effected any sales of Common
Stock which are required to be disclosed in response to Item 701 of
Regulation S-K under the Act which have not been so disclosed in the
Registration Statement.
(xiii) The Company will not incur any liability for any finder's
or broker's fee or agent's commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
-15-
(b) Each Selling Stockholder, severally and not jointly, covenants
and agrees with the several Underwriters as follows:
(i) Except as otherwise agreed to by the Company and the
Selling Stockholder, such Selling Stockholder will pay all taxes, if any,
on the transfer and sale, respectively, of the Securities being sold by
such Selling Stockholder and the fees of such Selling Stockholder's
counsel. In addition, each Selling Stockholder severally agrees to
reimburse the Company for any reimbursement made by the Company to the
Underwriters pursuant to Section 4(a)(viii) hereof to the extent such
reimbursement resulted from the failure or refusal on the part of such
Selling Stockholder to comply under the terms or fulfill any of the
conditions of this Agreement.
(ii) The Securities to be sold by such Selling Stockholder,
represented by the certificates on deposit with the Custodian pursuant to
the Custody Agreement of such Selling Stockholder, are subject to the
interest of the several Underwriters and the other Selling Stockholders;
the arrangements made for such custody are, except as specifically provided
in the Custody Agreement, irrevocable; and the obligations of such Selling
Stockholder hereunder shall not be terminated, except as provided in this
Agreement or in the Custody Agreement, by any act of such Selling
Stockholder, by operation of law, whether by the death of such Selling
Stockholder or by the occurrence of any other event. If any such event
should occur before the delivery of the Securities hereunder, certificates
for the Securities deposited with the Custodian shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement and
the Custody Agreement as if such event had not occurred, whether or not the
Custodian shall have received notice thereof.
(iii) Such Selling Stockholder will not, except to the
Underwriters pursuant to this Agreement, without the prior written consent
of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., directly or indirectly, sell, offer,
contract or grant any option to sell (including without limitation any
short sale), pledge, transfer, establish an open "put equivalent position"
within the meaning of Rule 16a-l(h) under the Securities Exchange Act of
1934, as amended, or otherwise dispose of any shares of Common Stock,
options or warrants to acquire shares of Common Stock, or securities
exchangeable or exercisable for or convertible into shares of Common Stock
currently or hereafter owned either of record or beneficially (as defined
in Rule 13d-3 under Securities Exchange Act of 1934, as amended) by such
Selling Stockholder or publicly announce such Selling Stockholder's
intention to do any of the foregoing, for a period commencing on the date
hereof and continuing through the close of trading on the date one hundred
eighty days after the date of the Prospectus, except with respect to any
transfer (A) to any trust for the direct or indirect benefit of such
Selling Stockholder or the immediate family of such Selling Stockholder or
(B) to any member of the immediate family of such Selling Stockholder,
-16-
provided, that in each case, the transferee agrees to be bound by the
restrictions set forth herein and such transfer does not involve a
disposition for value.
(iv) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
(v) Such Selling Stockholder shall immediately notify you of any
change in information relating to such Selling Stockholder stated in the
Prospectus or any supplement thereto (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), which results in the
Prospectus (as supplemented) including an untrue statement of a material
fact or omitting to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
5. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters hereunder are subject to the accuracy, as of the date
hereof and at each of the First Closing Date and the Second Closing Date (as if
made at such Closing Date), of and compliance with all representations,
warranties and agreements of the Company and the Selling Stockholders contained
herein, to the performance by the Company and the Selling Stockholders of their
respective obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Central time, on the date of this Agreement, or such later time
and date as you, as Representatives of the several Underwriters, shall approve
and all filings required by Rules 424, 430A and 434 of the Rules and Regulations
shall have been timely made; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereof shall be in effect; no
proceedings for the issuance of such an order shall have been initiated or
threatened by the Commission; and any request of the Commission for additional
information (to be included in the Registration Statement or Prospectus or
otherwise) shall have been complied with to your reasonable satisfaction.
(b) Except as disclosed in or contemplated by the Prospectus,
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, (A) the Company and its subsidiaries,
considered as one entity, shall not have incurred any material liability or
obligation, direct or contingent, other than in the ordinary course of business,
or entered into any material transaction not in the ordinary course of business;
(B) there shall not have been any dividend or distribution of any kind declared
or paid with respect to the Company's capital stock; and (C) there shall not
have been any change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding options or warrants), or any material change in the
short-term or long-term debt of the Company, or any issuance of options,
warrants, convertible securities or
-17-
other rights to purchase the capital stock of the Company or any of its
subsidiaries, or any Material Adverse Change, or any development that could
reasonably be expected to result in a prospective Material Adverse Change, the
effect of which, in any such case described in clause (A), (B) or (C), is, in
your judgment, so material and adverse as to make it impractical or inadvisable
to offer or deliver the Securities on the terms and in the manner contemplated
in the Prospectus.
(c) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, the opinion of ▇▇▇▇ and ▇▇▇▇ LLP,
counsel for the Company, dated such Closing Date and addressed to you, to the
effect that:
(i) Each of the Company and Linkage, Inc., a Massachusetts
corporation and a wholly-owned subsidiary of the Company ("Linkage
Massachusetts"), has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and Linkage Massachusetts has corporate
power and authority to own its properties and conduct its business as
currently being carried on and as described in the Registration Statement
and the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction listed on Schedule
A to such opinion, which to such counsel's knowledge are the only
jurisdictions in which the Company owns or leases real property.
(ii) The capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in
the Prospectus under the caption "Description of Capital Stock." All of
the issued and outstanding shares of the capital stock of the Company have
been duly authorized and validly issued and are fully paid and
nonassessable. The Securities to be issued and sold by the Company
hereunder have been duly authorized and, when issued, delivered and paid
for in accordance with the terms of this Agreement, will have been validly
issued and will be fully paid and nonassessable. Except as otherwise
disclosed in the Registration Statement or Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common Stock
pursuant to the Company's charter, by-laws or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company is bound (other than pursuant to provisions of
agreements, which provisions will terminate upon the First Closing Date).
To such counsel's knowledge, neither the filing of the Registration
Statement nor the offering or sale of the Securities as contemplated by
this Agreement gives rise to any rights for or relating to the registration
of any shares of Common Stock or other securities of the Company.
(iii) All of the issued and outstanding shares of capital stock
of Linkage Massachusetts have been duly and validly authorized and issued
and are fully paid and nonassessable, and, to such counsel's knowledge,
except as otherwise described in the Registration Statement or Prospectus
and except for directors' qualifying shares, the
-18-
Company owns of record all of the issued and outstanding shares of such
stock. To such counsel's knowledge, except as described in or contemplated
by the Registration Statement or Prospectus and except for subsequent
issues, if any, pursuant to employee stock plans described in the
Prospectus, there are no options, warrants, agreements, contracts or other
rights in existence to purchase or acquire from the Company or any
subsidiary any shares of the capital stock of the Company or any subsidiary
of the Company.
(iv) The Registration Statement has been declared effective by
the Commission under the Act and, to counsel's knowledge, (A) no stop order
suspending the effectiveness of the Registration Statement has been issued
and (B) no proceeding for that purpose has been instituted or threatened by
the Commission.
(v) The statements (A) in the Prospectus under the captions
"Risk Factors -- Future sales by existing stockholders could depress the
market price of our common stock," "Description of Capital Stock" and
"Shares Eligible for Future Sale" and (B) in Items 14 and 15 of the
Registration Statement, insofar as such statements constitute matters of
law or legal conclusions, have been reviewed by such counsel and are
correct in all material respects; such counsel does not know of any
contracts or documents required by the Act or by the Rules and Regulations
thereunder to be filed as exhibits to the Registration Statement or
described in the Registration Statement or Prospectus which are not so
filed or described as required; and such counsel knows of no legal
proceedings pending or threatened against the Company or any of it
subsidiaries required to be described in the Prospectus which are not
described as required.
(vi) The Company has corporate power and authority to enter into
this Agreement, and this Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions herein contemplated (other than performance by the Company of
its obligations under the indemnification and contribution section of this
Agreement, as to which no opinion need be rendered) will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, (A) any Federal or Massachusetts state statute, rule or
regulation (other than state securities laws), (B) any agreement or
instrument to which the Company is a party and filed as an exhibit to the
Registration Statement, (C) the Company's charter or by-laws, or (D) any
court order or decree known to such counsel and specifically naming the
Company; and no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
Company's execution, delivery and performance of this Agreement or for the
Company's consummation of the transactions contemplated hereby, including
the issuance or sale of the Securities by the Company, except such as may
be required under the Act or state securities laws or by the NASD (as to
which no opinion need be expressed).
(vii) The Registration Statement and the Prospectus and any
amendment
-19-
thereof or supplement thereto (including any term sheet within the meaning
of Rule 434 of the Rules and Regulations, but excluding the financial
statements, including the notes and schedules thereto, and other financial
or accounting data included in the Registration Statement or Prospectus or
any such amendments or supplements thereto, as to which no opinion need be
expressed), when filed and when declared effective, complied as to form in
all material respects with the requirements of the Act and the Rules and
Regulations.
(viii) The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in 1940 Act.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for
the Company and with representatives of and counsel for the Underwriters, at
which conferences such counsel made inquiries of such persons and others and
discussed the contents of the Registration Statement and the Prospectus and any
supplements or amendments thereto. Such counsel shall also state that while the
limitations inherent in the independent verification of factual matters and the
character of determinations involved in the registration process are such that
such counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus, or any supplements or amendments thereto,
subject to and on the basis of such participation, inquiries and discussions, no
facts have come to the attention of such counsel which have caused them to
believe that either the Registration Statement or any amendments thereto, at the
time the Registration Statement or any such amendments became effective,
contained an 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, as of its date or at the First Closing
Date or the Second Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel need
express no belief as to the financial statements, including the notes and
schedules thereto, or any other financial or accounting data included in the
Registration Statement or Prospectus or any such amendments or supplements
thereto).
In rendering such opinion such counsel may (i) state that they render no
opinion as to matters of law other than the General Corporation Law statute of
the State of Delaware, the law of The Commonwealth of Massachusetts and federal
law of the United States and (ii) rely as to matters of fact, to the extent such
counsel deems reasonable, upon certificates of officers of the Company and its
subsidiaries.
(d) On the First Closing Date there shall have been furnished to you,
as Representatives of the several Underwriters, the opinion of ▇▇▇▇ and ▇▇▇▇
LLP, counsel for
-20-
the Selling Stockholders, dated the First Closing Date and addressed to you, to
the effect that:
(i) To such counsel's knowledge, based solely on its review of
the corporate and stock record books of the Company, each of the Selling
Stockholders is the record owner of the Securities to be sold by such
Selling Stockholder and, upon the Underwriters obtaining control of the
Securities to be sold by the Selling Stockholders, and assuming the
Underwriters purchased such Securities for value and without notice of any
adverse claim to such Securities within the meaning of Section 8-102 of the
Uniform Commercial Code as in effect in The Commonwealth of Massachusetts,
the Underwriters will have acquired all the rights of the Selling
Stockholder in such Securities, free and clear of any adverse claim, any
lien in favor of the Company and any restrictions on transfer imposed by
the Company.
(ii) This Agreement, the Custody Agreements and the Powers of
Attorney have been duly and validly executed and delivered by (or by the
Attorneys-in-Fact, or either of them, on behalf of) the Selling
Stockholders and the Custody Agreements and the Powers of Attorney are
valid and binding agreements of the Selling Stockholders, enforceable
against the Selling Stockholders in accordance with their respective terms
(except as rights to indemnity and contribution hereunder or thereunder may
be limited by federal or state securities laws or matters of public policy
and except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and
subject to general principles of equity).
(iii) The execution and delivery by each of the Selling
Stockholders of this Agreement, the Custody Agreement and the Power of
Attorney and the performance by each of the Selling Stockholders of the
terms hereof and thereof and the consummation by each of the Selling
Stockholders of the transactions herein and therein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (A) any Federal or Massachusetts state statute,
rule or regulation or (B) any court order or decree known to such counsel
and specifically naming any such Selling Stockholder; and no consent,
approval, authorization or order of, or filing with, any court or
governmental agency or body is required for such Selling Stockholder's
execution, delivery and performance of this Agreement, the Custody
Agreement and the Power of Attorney or for such Selling Stockholder's
consummation of the transactions contemplated hereby and thereby, including
the sale of the Securities being sold by such Selling Stockholder, except
such as may be required under the Act or state securities laws or blue sky
laws or by the NASD (as to which such counsel need not express any
opinion).
In rendering such opinion such counsel may (i) state that they
render no opinion as to matters of law other than the General Corporation
Law statute of the State of Delaware, the law of The Commonwealth of
Massachusetts and federal law of the United States and (ii) as to matters
of fact, to the extent such counsel deems reasonable upon certificates of
the Selling Stockholders.
-21-
(e) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, such opinion or opinions from Ropes
& ▇▇▇▇, counsel for the several Underwriters, dated such Closing Date and
addressed to you, with respect to the formation of the Company, the validity of
the Securities, the Registration Statement, the Prospectus and other related
matters as you reasonably may request, and such counsel shall have received such
papers and information as they request to enable them to pass upon such matters.
(f) On each Closing Date you, as Representatives of the several
Underwriters, shall have received a letter of Deloitte & Touche LLP, dated such
Closing Date and addressed to you, confirming that they are independent public
accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualifications of accountants under Rule
2-01 of Regulation S-X of the Commission, and stating, as of the date of such
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of such
letter), the conclusions and findings of said firm with respect to the financial
information and other matters covered by its letter delivered to you
concurrently with the execution of this Agreement, and the effect of the letter
so to be delivered on such Closing Date shall be to confirm the conclusions and
findings set forth in such prior letter.
(g) On each Closing Date, there shall have been furnished to you, as
Representatives of the Underwriters, a certificate, dated such Closing Date and
addressed to you, signed by the chief executive officer and by the chief
financial officer of the Company, in their capacity as such, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, in all material respects, as if made at and
as of such Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness
of the Registration Statement or any amendment thereof or the qualification
of the Securities for offering or sale is in effect, and no proceeding for
that purpose, to the best of their knowledge, has been instituted or is
contemplated by the Commission or any state or regulatory body; and
(iii) For the period from and after the date of this Agreement
and prior to such Closing Date, there has not occurred any Material Adverse
Change.
(h) On the First Closing Date there shall have been furnished to you,
as Representatives of the several Underwriters, a certificate or certificates,
dated the First Closing Date and addressed to you, signed by each of the Selling
Stockholders or either of such Selling Stockholder's Attorneys-in-Fact to the
effect that the representations and warranties of such Selling Stockholder
contained in this Agreement are true and correct as if made at and as of such
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Closing Date, and that such Selling Stockholder has complied with all the
agreements and satisfied all the conditions on such Selling Stockholder's part
to be performed or satisfied at or prior to such Closing Date.
(i) The Company shall have furnished to you and counsel for the
Underwriters such additional documents, certificates and evidence as you or they
may reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Securities as contemplated herein, or in order to
evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
(j) The Common Stock shall have been approved for listing on the
Nasdaq National Market, subject only to official notice of issuance.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and counsel for the Underwriters. The
Company will furnish you with such conformed copies of such opinions,
certificates, letters and other documents as you shall reasonably request.
6. Indemnification and Contribution.
--------------------------------
(a) The Company, its subsidiaries and each Selling Stockholder,
jointly and severally, agree to indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, to which such Underwriter
may become subject, under the Act or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Company and/or such Selling Stockholders, as the case may be), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, including the information
deemed to be a part of the Registration Statement at the time of effectiveness
pursuant to Rules 430A and 434(d) of the Rules and Regulations, if applicable,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto (including any term sheet within the meaning of Rule 434 of the Rules
and Regulations), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that (i) none of the Company, its
subsidiaries or any Selling Stockholder shall be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
you, or by or on behalf of any Underwriter through you, specifically for use in
the preparation thereof and (ii) with respect to any Preliminary Prospectus, the
foregoing indemnity and reimbursement arrangement shall not inure to the benefit
of any
-23-
Underwriter from whom the person asserting any loss, claim, damage, liability or
expense purchased Securities, or any person controlling such Underwriter, if
copies of the Prospectus were timely delivered to the Underwriter pursuant to
this Agreement and the copy of the Prospectus (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person at or prior
to the written confirmation of the sale of the Securities to such person, and if
the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or expense; and further
provided, however, that in no event shall any Selling Stockholder be liable
under the provisions of this Section 6, together with any liability for breach
of the representation of such Selling Stockholder contained in Section
2(b)(vii), for any amount in excess of the aggregate amount of proceeds received
by such Selling Stockholder from the sale of the Securities pursuant to this
Agreement.
(b) Each Underwriter will indemnify and hold harmless the Company, its
subsidiaries and each Selling Stockholder against any losses, claims, damages or
liabilities to which the Company, its subsidiaries and the Selling Stockholders
may become subject, under the Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, including the information deemed to be a part of the Registration
Statement at the time of effectiveness pursuant to Rules 430A and 434(d) of the
Rules and Regulations, if applicable, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, any Preliminary Prospectus, the Prospectus, or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of you, or by or on
behalf of such Underwriter through you, specifically for use in the preparation
thereof, and will reimburse the Company, its subsidiaries and the Selling
Stockholders for any legal or other expenses reasonably incurred by the Company,
its subsidiaries or any such Selling Stockholder in connection with
investigating or defending against any such loss, claim, damage, liability or
action. This indemnity agreement shall be in addition to any liabilities which
any such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party, except to the extent the indemnifying
party is prejudiced thereby. In case any such action shall be brought against
any indemnified party, and it shall notify the
-24-
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of the indemnifying
party's election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that if
the indemnified party reasonably determines that there is or may be a conflict
between the positions of the indemnifying party or parties and the indemnified
party in conducting the defense of such action, then counsel for the indemnified
party shall be entitled to conduct the defense to the extent relating to matters
that are subject to such conflict, and in that event the fees and expenses of
such counsel for the indemnified party shall be paid by the indemnifying party
or parties; provided, however, that the indemnifying party or parties shall not
be liable for the fees and expenses of more than one separate firm for all such
indemnified parties. An indemnifying party shall not be obligated under any
settlement agreement relating to any action under this Section 6 to which it has
not agreed in writing. The indemnifying party shall have the right to settle any
action without the consent of any indemnified party, provided that such
settlement includes a complete release of the indemnified party with respect to
the subject matter thereof.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company, its subsidiaries and the Selling Stockholders on the one hand
and the Underwriters on the other from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, its
subsidiaries and the Selling Stockholders on the one hand and the Underwriters
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company, its
subsidiaries and the Selling Stockholders on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholders on
the one hand or the Underwriters on the other and the parties' relevant intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, its subsidiaries, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this
-25-
subsection (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 account of the equitable considerations
referred to in the first sentence of this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against any
action or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), (A) no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, (B) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation and (C) the aggregate liability of the Selling Stockholders
with respect to any claim for contribution shall be limited as provided in
Section 6(a) above. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company, its subsidiaries and the Selling
Stockholders under this Section 6 shall be in addition to any liability which
the Company, its subsidiaries and the Selling Stockholders may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 6 shall be in addition to any liability
that the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company (including any person
who, with his consent, is named in the Registration Statement as about to become
a director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company or
any Selling Stockholder within the meaning of the Act.
7. Representations and Agreements to Survive Delivery. All
--------------------------------------------------
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters, the Company and the Selling Stockholders contained in Section 6
hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
thereof, or the Company or any of its officers, directors, or controlling
persons, or any Selling Stockholders or any controlling person thereof, and
shall survive delivery of, and payment for, the Securities to and by the
Underwriters hereunder.
-26-
8. Substitution of Underwriters.
----------------------------
(a) If any Underwriter or Underwriters shall fail to take up and pay
for the amount of Firm Shares agreed by such Underwriter or Underwriters to be
purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased does not aggregate
more than 10% of the total amount of Firm Shares set forth in Schedule II
hereto, the remaining Underwriters shall be obligated to take up and pay for (in
proportion to their respective underwriting obligations hereunder as set forth
in Schedule II hereto except as may otherwise be determined by you) the Firm
Shares that the withdrawing or defaulting Underwriters agreed but failed to
purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay
for the amount of Firm Shares agreed by such Underwriter or Underwriters to be
purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased aggregates more than
10% of the total amount of Firm Shares set forth in Schedule II hereto, and
arrangements satisfactory to you for the purchase of such Firm Shares by other
persons are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination neither the Company nor any Selling
Stockholder shall be under any liability to any Underwriter (except to the
extent provided in Section 4(a)(viii)and Section 6 hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than for
some reason permitted under this Agreement, to purchase the amount of Firm
Shares agreed by such Underwriter to be purchased hereunder) be under any
liability to the Company or the Selling Stockholders (except to the extent
provided in Section 6 hereof).
If Firm Shares to which a default relates are to be purchased by the
non-defaulting Underwriters or by any other party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. Any action taken under this
Section 8 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 8.
9. Termination of this Agreement.
-----------------------------
(a) You, as Representatives of the several Underwriters, shall have
the right to terminate this Agreement by giving notice as hereinafter specified
at any time prior to the First Closing Date, and the option referred to in
Section 3(b), if exercised, may be canceled at any time prior to the Second
Closing Date, if (i) in the reasonable judgment of the Representatives there
shall have occurred any Material Adverse Change, (ii) trading on the New York
Stock Exchange or the American Stock Exchange shall have been wholly suspended,
(iii) minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, on the New York Stock
Exchange or the American Stock Exchange, by such
-27-
Exchange or by order of the Commission or any other governmental authority
having jurisdiction, (iv) a banking moratorium shall have been declared by
Federal, New York or Minnesota authorities, or (v) there has occurred any
material adverse change in the financial markets in the United States or an
outbreak of major hostilities (or an escalation thereof) in which the United
States is involved, a declaration of war by Congress, any other substantial
national or international calamity or any other event or occurrence of a similar
character shall have occurred since the execution of this Agreement that, in
your judgment, makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities. Any such termination
shall be without liability of any party to any other party except that the
provisions of Section 4(a)(viii) and Section 6 hereof shall at all times be
effective.
(b) If you elect to terminate this Agreement as provided in this
Section, the Company and an Attorney-in-Fact, on behalf of the Selling
Stockholders, shall be notified promptly by you by telephone or telegram,
confirmed by letter, and such action shall be effective only upon such
notification.
10. Default by One or More of the Selling Stockholders or the Company.
-----------------------------------------------------------------
If one or more of the Selling Stockholders shall fail at the First Closing Date
to sell and deliver the number of Securities which such Selling Stockholder or
Selling Stockholders are obligated to sell hereunder, and the remaining Selling
Stockholders do not exercise the right hereby granted to increase, pro rata or
otherwise, the number of Securities to be sold by them hereunder to the total
number of Securities to be sold by all Selling Stockholders as set forth in
Schedule I, then the Underwriters may at your option, by notice from you to the
Company and the non-defaulting Selling Stockholders, either (a) terminate this
Agreement without any liability on the part of any non-defaulting party or (b)
elect to purchase the Securities which the Company and the non-defaulting
Selling Stockholders have agreed to sell hereunder.
In the event of a default by any Selling Stockholder as referred to in this
Section, either you or the Company or, by joint action only, the non-defaulting
Selling Stockholders shall have the right to postpone the First Closing Date for
a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
If the Company shall fail at the First Closing Date to sell and deliver the
number of Securities which it is obligated to sell hereunder, then this
Agreement shall terminate without any liability on the part of any non-
defaulting party. No action taken pursuant to this Section shall relieve the
Company, its subsidiaries or any Selling Stockholders so defaulting from
liability, if any, in respect of such default.
11. Information Furnished by the Underwriters. The statements set forth
-----------------------------------------
in under the caption "Underwriting" in any Preliminary Prospectus and in the
Prospectus constitute the written information furnished by or on behalf of the
Underwriters referred to in Section 2 and Section 6 hereof.
-28-
12. Notices. Except as otherwise provided herein, all communications
-------
hereunder shall be in writing or by telegraph and, if to the Underwriters, shall
be mailed, telegraphed or delivered to the Representatives c/o U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Company, shall be mailed, telegraphed or delivered to
it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇, with a copy to ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.; if to any of the Selling
Stockholders, at the address of the Attorneys-in-Fact as set forth in the Powers
of Attorney with a copy to ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., or in each case to such
other address as the person to be notified may have requested in writing. All
notices given by telegram shall be promptly confirmed by letter. Any party to
this Agreement may change such address for notices by sending to the parties to
this Agreement written notice of a new address for such purpose.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure
----------------------------------------
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
14. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Minnesota.
[Signature Page Follows]
-29-
Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the
Company, the Selling Stockholders and the several Underwriters in accordance
with its terms.
Very truly yours,
Linkage Solutions, Inc.
By ____________________________________
**[Title]
Selling Stockholders
By ____________________________________
Attorney-in-Fact
Confirmed as of the date first
above mentioned, on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ inc.
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
By: U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ inc.
By ______________________________
Managing Director
The undersigned join this letter solely for the purposes of Sections 6, 7,
9 and 10.
Linkage, Inc.
By __________________________________
**[Title]
Linkage International Limited
By __________________________________
**[Title]
High, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc.
By __________________________________
**[Title]
SCHEDULE I
Selling Stockholders
Number of
Name Firm Shares to be Sold
---- ----------------------
_________________
Total________
=================
SCHEDULE II
Underwriter Number of Firm Shares (1)
----------- -------------------------
_______________
Total________
===============
_________________
(1) The Underwriters may purchase up to an additional ______ Option Shares,
to the extent the option described in Section 3(b) of the Agreement is
exercised, in the proportions and in the manner described in the Agreement.
SCHEDULE III
Persons Subject to Lock-up Agreement
------------------------------------
EXHIBIT A
Form of Lock-Up Agreement
-------------------------