EXHIBIT 1.1
[Draft]
UNDERWRITING AGREEMENT
[Date]
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇ & Company, Inc.
Wit SoundView Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Incorporated
as Representatives of the
several Underwriters named in
SCHEDULE I attached hereto
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Ladies and Gentlemen:
Semitool, Inc., a corporation organized and existing under
the laws of the State of Montana (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the several
underwriters named in SCHEDULE I hereto (the "Underwriters") an aggregate of
3,036,000 shares of its common stock, no par value (such class of stock, the
"Common Shares") and the stockholders of the Company named in SCHEDULE II
hereto (collectively, the "Selling Stockholders") severally propose to sell
to the Underwriters an aggregate of 1,064,000 Common Shares. The 2,036,000
Common Shares to be sold by the Company and the 1,064,000 Common Shares to be
sold by the Selling Stockholders are collectively called the "Firm Shares."
In addition, for the sole purpose of covering over-allotments in connection
with the sale of the Firm Shares, the Company has granted to the Underwriters
an option to purchase up to an additional 115,000 Common Shares and the
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Living Trust and the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Living Trust, two
of the Selling Stockholders (the "Option Selling Stockholders"), have
severally granted to the Underwriters an option to purchase up to an
additional 500,000 Common Shares, each selling up to the amount set forth
opposite such Selling Stockholder's name in SCHEDULE II hereto. The
additional 115,000 Common Shares to be sold by the Company and the additional
500,000 Common Shares to be sold by the Option Selling Stockholders pursuant
to such option are collectively called the "Additional Shares." The Firm
Shares and any Additional Shares purchased by the Underwriters are referred
to herein as the "Shares." The Shares are more fully described in the
Registration Statement referred to below.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-39492), which contains a form of prospectus, subject to
completion, to be used in connection with the public offering and sale of the
Shares. Each such prospectus, subject to completion, used in connection with
such public offering is called a
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"preliminary prospectus." Such registration statement, as amended, including
the financial statements, exhibits and schedules thereto, in the form in
which it was declared effective by the Commission under the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Securities Act"), including all documents incorporated or
deemed to be incorporated by reference therein and any information deemed to
be a part thereof at the time of effectiveness pursuant to Rule 430A or Rule
434 under the Securities Act or the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (collectively,
the "Exchange Act"), is called the "Registration Statement." Any registration
statement filed by the Company pursuant to Rule 462(b) under the Securities
Act is called the "Rule 462(b) Registration Statement," and from and after
the date and time of filing of the Rule 462(b) Registration Statement the
term "Registration Statement" shall include the Rule 462(b) Registration
Statement. Such prospectus, in the form first used by the Underwriters to
confirm sales of the Shares, including all documents incorporated or deemed
to be incorporated by reference therein and any information deemed to be a
part thereof at such time of effectiveness pursuant to Rule 430A or Rule 434
under the Securities Act or the Exchange Act is called the "Prospectus." All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a preliminary prospectus, the Prospectus, or any
amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("▇▇▇▇▇").
All references in this Agreement to financial statements
and schedules and other information which is "contained," "included" or
"stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include the filing of any document under the
Exchange Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
The Company and each of the Selling Stockholders hereby
confirm their respective agreements with the Underwriters as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SELLING STOCKHOLDERS.
A REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents, warrants and covenants to each Underwriter as follows:
(a) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Registration
Statement and any Rule 462(b) Registration Statement have been declared
effective by the Commission under the Securities Act. The Company has
complied to the Commission's satisfaction with all requests of the Commission
for additional or supplemental information. No stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement is in effect and no proceedings for such
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purpose have been instituted or are pending or, to the best knowledge of the
Company, are contemplated or threatened by the Commission.
(b) OFFERING MATERIALS FURNISHED TO UNDERWRITERS. The Company
has delivered to the Representatives one complete conformed copy of the
Registration Statement and of each consent and certificate of experts filed
as a part thereof, and conformed copies of the Registration Statement
(without exhibits) and preliminary prospectuses and the Prospectus, as
amended or supplemented, in such quantities and at such places as the
Representatives have reasonably requested for each of the Underwriters.
(c) DISTRIBUTION OF OFFERING MATERIAL BY THE COMPANY. The
Company has not distributed and will not distribute, prior to the later of
the Second Closing Date (as defined below) and the completion of the
Underwriters' distribution of the Shares, any offering material in connection
with the offering and sale of the Shares other than a preliminary prospectus,
the Prospectus or the Registration Statement.
(d) THE UNDERWRITING AGREEMENT. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, except as rights
to indemnification hereunder may be limited by applicable law and except as
the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles.
(e) AUTHORIZATION OF THE SHARES TO BE SOLD BY THE COMPANY. The
Shares to be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale pursuant to this Agreement and, when issued
and delivered by the Company pursuant to this Agreement, will be validly
issued, fully paid and nonassessable.
(f) AUTHORIZATION OF THE SHARES TO BE SOLD BY THE SELLING
STOCKHOLDERS. The Common Shares to be purchased by the Underwriters from the
Selling Stockholders, when issued, were validly issued, fully paid and
nonassessable.
(g) NO APPLICABLE REGISTRATION OR OTHER SIMILAR RIGHTS. There
are no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement or
included in the offering contemplated by this Agreement, other than the
Selling Stockholders with respect to the Shares included in the Registration
Statement, except for such rights as have been duly waived.
(h) INDEPENDENT ACCOUNTANTS. PricewaterhouseCoopers LLP, who
have expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) and
supporting schedules filed with the Commission as a part of the Registration
Statement and included in the Prospectus, are independent public or certified
public accountants as required by the Securities Act and the Exchange Act.
(i) PREPARATION OF THE FINANCIAL STATEMENTS. The financial
statements filed with the Commission as a part of the Registration Statement
and included in the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as of and at the dates indicated
and the results of their operations and cash
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flows for the periods specified. The supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. Such financial statements and supporting schedules have been
prepared in conformity with generally accepted accounting principles as
applied in the United States applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related notes
thereto. No other financial statements or supporting schedules are required
to be included in the Registration Statement. The financial data set forth in
the Prospectus under the captions "Prospectus Summary--Summary Consolidated
Financial Data," "Selected Consolidated Financial Data" and "Capitalization"
fairly present the information set forth therein on a basis consistent with
that of the audited financial statements contained in the Registration
Statement. No pro forma financial information is required to be included in
the Registration Statement pursuant to Regulation S-X.
(j) COMPANY'S ACCOUNTING SYSTEM. The Company and each of its
subsidiaries maintain a system of accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles as applied in the
United States and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(k) SUBSIDIARIES OF THE COMPANY. The Company does not own or
control, directly or indirectly, any corporation, association or other entity
other than the subsidiaries listed in Exhibit 21 to the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1999.
(l) INCORPORATION AND GOOD STANDING OF THE COMPANY AND ITS
SUBSIDIARIES. Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation or limited liability
company, as the case may be, in good standing under the laws of the
jurisdiction in which it is organized with full corporate power and authority
to own its properties and conduct its business as described in the
prospectus, and is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction which requires such
qualification.
(m) CAPITALIZATION OF THE SUBSIDIARIES. All the outstanding
shares of capital stock of each subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of capital
stock of the subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any security interests, claims,
liens or encumbrances.
(n) NO PROHIBITION ON SUBSIDIARIES FROM PAYING DIVIDENDS OR
MAKING OTHER DISTRIBUTIONS. No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's property or assets to
the Company or any other subsidiary of the Company, except as described in or
contemplated by the Prospectus.
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(o) CAPITALIZATION AND OTHER CAPITAL STOCK MATTERS. The
authorized, issued and outstanding capital stock of the Company is as set
forth in the Prospectus under the caption "Capitalization" (other than for
subsequent issuances, if any, pursuant to employee benefit plans described in
the Prospectus or upon exercise of outstanding options or warrants described
in the Prospectus). The Common Shares (including the Shares) conform in all
material respects to the description thereof contained in the Prospectus. All
of the issued and outstanding Common Shares have been duly authorized and
validly issued are fully paid and nonassessable and have been issued in
compliance with federal and state securities laws. None of the outstanding
Common Shares were issued in violation of any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company or any of its subsidiaries other than
those accurately described in the Prospectus. The description of the
Company's stock option, stock bonus and other stock plans or arrangements,
and the options or other rights granted thereunder, set forth in the
Prospectus accurately and fairly describes such plans, arrangements, options
and rights.
(p) STOCK EXCHANGE LISTING. The Shares are registered pursuant
to Section 12(g) of the Exchange Act and are listed on the Nasdaq National
Market, and the Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Common Shares under the
Exchange Act or delisting the Common Shares from the Nasdaq National Market,
nor has the Company received any notification that the Commission or the
National Association of Securities Dealers, Inc. (together with its
regulatory subsidiary NASD Regulation, Inc., the "NASD") is contemplating
terminating such registration or listing.
(q) NO CONSENTS, APPROVALS OR AUTHORIZATIONS REQUIRED. No
consent, approval, authorization, filing with or order of any court or
governmental agency or regulatory body is required in connection with the
transactions contemplated herein, except such as have been obtained or made
under the Securities Act and such as may be required (i) under the blue sky
laws of any jurisdiction in connection with the purchase and distribution of
the Shares by the Underwriters in the manner contemplated here and in the
Prospectus, (ii) by the NASD and (iii) by the federal and provincial laws of
Canada.
(r) NON-CONTRAVENTION OF EXISTING INSTRUMENTS AGREEMENTS.
Neither the issue and sale of the Shares nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms hereof
will conflict with, result in a breach or violation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or
any of its subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which its or their property is
subject or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties.
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(s) NO DEFAULTS OR VIOLATIONS. Neither the Company nor any
subsidiary is in violation or default of (i) any provision of its charter or
by-laws, (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to which
its property is subject or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or such subsidiary or any of its properties, as applicable,
except any such violation or default which would not, singly or in the
aggregate, result in a Material Adverse Change except as otherwise disclosed
in the Prospectus.
(t) NO ACTIONS, SUITS OR PROCEEDINGS. Except as otherwise
disclosed in the Prospectus, No action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property is pending
or, to the best knowledge of the Company, threatened that (i) could
reasonably be expected to have a Material Adverse Effect on the performance
of this Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to result in a Material Adverse
Effect.
(u) ALL NECESSARY PERMITS, ETC. The Company and each subsidiary
possess such valid and current certificates, authorizations or permits issued
by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, and neither the Company nor
any subsidiary has received any notice of proceedings relating to the
revocation or modification of, or non-compliance with, any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, could result in a Material
Adverse Change.
(v) TITLE TO PROPERTIES. The Company and each of its
subsidiaries has good and marketable title to all the properties and assets
reflected as owned in the financial statements referred to in Section 1(A)(i)
above (or elsewhere in the Prospectus), in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities, claims and
other defects, except such as do not materially and adversely affect the
value of such property and do not materially interfere with the use made or
proposed to be made of such property by the Company or such subsidiary. The
real property, improvements, equipment and personal property held under lease
by the Company or any subsidiary are held under valid and enforceable leases,
with such exceptions as are not material and do not materially interfere with
the use made or proposed to be made of such real property, improvements,
equipment or personal property by the Company or such subsidiary.
(w) TAX LAW COMPLIANCE. The Company and its consolidated
subsidiaries have filed all necessary federal, state and foreign income and
franchise tax returns or have properly requested extensions thereof and have
paid all taxes required to be paid by any of them and, if due and payable,
any related or similar assessment, fine or penalty levied against any of
them. The Company has made adequate charges, accruals and reserves in the
applicable financial statements referred to in Section 1(A)(i) above in
respect of all federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company or any of its
consolidated subsidiaries has not been finally determined. The Company is not
aware of any tax deficiency that has been
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or might be asserted or threatened against the Company that could result in a
Material Adverse Change.
(x) INTELLECTUAL PROPERTY RIGHTS. Each of the Company and its
subsidiaries owns or possesses adequate rights to use all patents, patent
rights or licenses, inventions, collaborative research agreements, trade
secrets, know-how, trademarks, service marks, trade names and copyrights
which are necessary to conduct its businesses as described in the
Registration Statement and Prospectus; the expiration of any patents, patent
rights, trade secrets, trademarks, service marks, trade names or copyrights
would not result in a Material Adverse Change that is not otherwise disclosed
in the Prospectus; the Company has not received any notice of, and has no
knowledge of, any infringement of or conflict with asserted rights of the
Company by others with respect to any patent, patent rights, inventions,
trade secrets, know-how, trademarks, service marks, trade names or
copyrights; and the Company has not received any notice of, and has no
knowledge of, any infringement of or conflict with asserted rights of others
with respect to any patent, patent rights, inventions, trade secrets,
know-how, trademarks, service marks, trade names or copyrights which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, might have a Material Adverse Change. There is no claim being made
against the Company regarding patents, patent rights or licenses, inventions,
collaborative research, trade secrets, know-how, trademarks, service marks,
trade names or copyrights. The Company and its subsidiaries do not in the
conduct of their business as now or proposed to be conducted as described in
the Prospectus infringe or conflict with any right or patent of any third
party, or any discovery, invention, product or process which is the subject
of a patent application filed by any third party, known to the Company or any
of its subsidiaries, which such infringement or conflict is reasonably likely
to result in a Material Adverse Change.
(y) YEAR 2000. There are no Year 2000 issues related to the
Company, or any of its subsidiaries, that (i) are of a character required to
be described or referred to in the Registration Statement or Prospectus by
the Securities Act or by the Exchange Act which have not been accurately
described in the Registration Statement or Prospectus or (ii) might
reasonably be expected to result in any Material Adverse Change or that might
materially affect their properties, assets or rights.
(z) NO TRANSFER TAXES OR OTHER FEES. There are no transfer taxes
or other similar fees or charges under Federal law or the laws of any state,
or any political subdivision thereof, required to be paid in connection with
the execution and delivery of this Agreement or the issuance and sale by the
Company of the shares.
(aa) COMPANY NOT AN "INVESTMENT COMPANY." The Company has been
advised of the rules and requirements under the Investment Company Act of
1940, as amended (the "Investment Company Act"). The Company is not, and
after receipt of payment for the Shares will not be, an "investment company"
or an entity "controlled" by an "investment company" within the meaning of
the Investment Company Act and will conduct its business in a manner so that
it will not become subject to the Investment Company Act.
(bb) INSURANCE. Each of the Company and its subsidiaries are
insured by recognized, financially sound and reputable institutions with
policies in such amounts and with such deductibles and covering such risks as
are generally deemed adequate
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and customary for their businesses including, but not limited to, policies
covering real and personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction, acts of vandalism and
earthquakes, general liability and Directors and Officers liability. The
Company has no reason to believe that it or any subsidiary will not be able
(i) to renew its existing insurance coverage as and when such policies expire
or (ii) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a
cost that would not result in a Material Adverse Change. Neither of the
Company nor any subsidiary has been denied any insurance coverage which it
has sought or for which it has applied.
(cc) LABOR MATTERS. To the best of Company's knowledge, no labor
disturbance by the employees of the Company or any of its subsidiaries exists
or is imminent; and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its principal suppliers,
contractors, or distributors that might be expected to result in a Material
Adverse Change.
(dd) NO PRICE STABILIZATION OR MANIPULATION. The Company has not
taken and will not take, directly or indirectly, any action designed to or
that might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Shares to facilitate the sale or
resale of the Shares.
(ee) LOCK-UP AGREEMENTS. Each officer and director of the
company and each beneficial owner of five or more percent of the outstanding
issued share capital of the Company has agreed to sign an agreement
substantially in the form attached hereto as EXHIBIT A (the "Lock-Up
Agreements"). The Company has provided to counsel for the Underwriters a
complete and accurate list of all securityholders of the Company and the
number and type of securities held by each securityholder. The Company has
provided to counsel for the Underwriters true, accurate and complete copies
of all of the Lock-up Agreements presently in effect or effected hereby. The
Company hereby represents and warrants that during the Lock-Up Period (as
defined in EXHIBIT A) it will not (i) release any of its officers, directors
or other stockholders from any Lock-up Agreements currently existing or
hereafter effected or (ii) consent to the removal of any transfer-restrictive
legend from any certificate representing any Common Shares, in each case
without the prior written consent of Bear, ▇▇▇▇▇▇▇ & Co. Inc.
(ff) RELATED PARTY TRANSACTIONS. There are no business
relationships or related-party transactions involving the Company or any
subsidiary or any other person required to be described in the Prospectus
which have not been described as required.
(gg) NO UNLAWFUL CONTRIBUTIONS OR OTHER PAYMENTS. Neither the
Company nor any of its subsidiaries nor, to the best of the Company's
knowledge, any employee or agent of the Company or any subsidiary, has made
any contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law or of the character
required to be disclosed in the Prospectus.
(hh) ENVIRONMENTAL LAWS. The Company (i) is in compliance with
all rules, laws and regulations relating to the use, treatment, storage and
disposal of toxic substances and protection of health or the environment
("Environmental Laws") which are applicable to its business, except where the
failure to comply would not result in a Material Adverse Change, (ii) has
received no notice from any governmental authority
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or third party of an asserted claim under Environmental Laws, which claim is
required to be disclosed in the Registration Statement and the Prospectus,
(iii) is not currently aware that it will be required to make future material
capital expenditures to comply with Environmental Laws and (iv) does not own,
lease or occupy property that has been designated as a Superfund site
pursuant to the Comprehensive Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. Section 9601, ET SEQ.), or otherwise designated
as a contaminated site under applicable state or local law.
(ii) PERIODIC REVIEW OF COSTS OF ENVIRONMENTAL COMPLIANCE. In
the ordinary course of its business, the Company conducts a periodic review
of the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review and the
amount of its established reserves, the Company has reasonably concluded that
such associated costs and liabilities would not, individually or in the
aggregate, result in a Material Adverse Change.
(jj) ERISA COMPLIANCE. Except as otherwise disclosed in the
Prospectus, The Company and its subsidiaries and any "employee benefit plan"
(as defined under the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance
in all material respects with ERISA. "ERISA Affiliate" means, with respect to
the Company or a subsidiary, any member of any group of organizations
described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations
thereunder (the "Code") of which the Company or such subsidiary is a member.
No "reportable event" (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any "employee benefit plan" established or
maintained by the Company, its subsidiaries or any of their ERISA Affiliates.
No "employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, if such "employee benefit
plan" were terminated, would have any "amount of unfunded benefit
liabilities" (as defined under ERISA). Neither the Company, its subsidiaries
nor any of their ERISA Affiliates has incurred or reasonably expects to incur
any liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "employee benefit plan" or (ii) Sections 412, 4971, 4975
or 4980B of the Code. Each "employee benefit plan" established or maintained
by the Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or failure to act, which would cause
the loss of such qualification.
(kk) EXCHANGE ACT COMPLIANCE. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the Exchange Act, and, when
read together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at the
First Closing Date and the Second Closing Date, as the case may be, will not
contain an untrue statement of a material fact or omit to state a
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material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ll) EXCHANGE ACT REPORTS FILED. The Company has filed all
reports required to be filed pursuant to the Securities Act and the
Exchange Act.
(mm) CONDITIONS FOR USE OF FORM S-3. The Company has satisfied
the conditions for the use of Form S-3, as set forth in the general
instructions thereto, with respect to the Registration Statement.
(nn) NO MATERIAL MISSTATEMENTS OR OMISSIONS IN REGISTRATION
STATEMENT OR PROSPECTUS. Each preliminary prospectus and the Prospectus when
filed complied in all material respects with the Securities Act and, if filed
by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted by
Regulation S-T under the Securities Act), was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale
of the Shares. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time
it became effective and at all subsequent times, complied and will comply in
all material respects with the Securities Act and did not and will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. Each preliminary prospectus, as of its date, and the
Prospectus, as amended or supplemented, as of its date and at all subsequent
times through the 30th day after the date hereof, did not and will not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The representations
and warranties set forth in the two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement, any Rule
462(b) Registration Statement, or any post-effective amendment thereto, or
the Prospectus, or any amendments or supplements thereto, made in reliance
upon and in conformity with information relating to any Underwriter furnished
to the Company in writing by the Representatives expressly for use therein.
There are no contracts or other documents required to be described in the
Prospectus or to be filed as exhibits to the Registration Statement which
have not been described or filed as required.
(oo) NO MATERIAL ADVERSE CHANGE. Subsequent to the respective
dates as of which information is given in the Prospectus: (i) there has been
no material adverse change, or any development that could reasonably be
expected to result in a material adverse change, in the condition, financial
or otherwise, or in the earnings, business, operations or prospects, whether
or not arising from transactions in the ordinary course of business, of the
Company and its subsidiaries, considered as one entity (any such change or
effect, where the context so requires, is called a "Material Adverse Change"
or a "Material Adverse Effect"); (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability or
obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of its subsidiaries
on any class of capital stock or repurchase or redemption by the Company or
any of its subsidiaries of any class of capital stock.
10
Any certificate signed by an officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each Underwriter
as to the matters set forth therein.
B. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
Each Selling Stockholder represents, warrants and covenants to each Underwriter
as follows:
(a) THE UNDERWRITING AGREEMENT. This Agreement has been duly
authorized, executed and delivered by or on behalf of such Selling
Stockholder and is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the enforcement
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles.
(b) THE CUSTODY AGREEMENT AND POWER OF ATTORNEY. Each of the (i)
Custody Agreement signed by such Selling Stockholder and [___], as custodian
(the "Custodian"), relating to the deposit of the Shares to be sold by such
Selling Stockholder (the "Custody Agreement") and (ii) Power of Attorney
appointing certain individuals named therein as such Selling Stockholder's
attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set forth
therein relating to the transactions contemplated hereby and by the
Prospectus (the "Power of Attorney"), of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and is a
valid and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms, except as rights to indemnification thereunder may
be limited by applicable law and except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or
by general equitable principles. Each Selling Stockholder agrees that the
Shares to be sold by such Selling Stockholder on deposit with the Custodian
is subject to the interests of the Underwriters, that the arrangements made
for such custody are to that extent irrevocable, and that 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 the
Selling Stockholder, by operation of law, by death or incapacity of such
Selling Stockholder or by the occurrence of any other event. If such Selling
Stockholder should die or become incapacitated, or in any other event should
occur, before the delivery of the Shares to be sold by such Selling
Stockholder hereunder, the documents evidencing the Shares to be sold by such
Selling Stockholder then on deposit with the Custodian shall be delivered by
the Custodian in accordance with the terms and conditions of this Agreement
as if such death, incapacity or other event had not occurred, regardless of
whether or not the Custodian shall have received notice thereof.
(c) TITLE TO SHARES TO BE SOLD. Such Selling Stockholder is the
lawful owner of the Shares to be sold by such Selling Stockholder hereunder
and upon sale and delivery of, and payment for, such Shares, as provided
herein, such Selling Stockholder will convey good and marketable title to
such Shares, free and clear of all liens, encumbrances, equities and claims
whatsoever.
(d) ALL AUTHORIZATIONS OBTAINED. Such Selling Stockholder has,
and on the First Closing Date and the Second Closing Date (as defined below)
will have, good and
11
valid title to all of the Company Shares which may be sold by such Selling
Stockholder pursuant to this Agreement on such date and the legal right and
power, and all authorizations and approvals required by law to enter into
this Agreement and its Custody Agreement and Power of Attorney, to sell,
transfer and deliver all of the Shares which may be sold by such Selling
Stockholder pursuant to this Agreement and to comply with its other
obligations hereunder and thereunder.
(e) NO FURTHER CONSENTS, AUTHORIZATION OR APPROVALS. No consent,
approval, authorization or order of any court or governmental agency or body
is required for the consummation by such Selling Stockholder of the
transactions contemplated herein, except such as may have been obtained under
the Securities Act and such as may be required under the federal and
provincial securities laws of Canada or the blue sky laws or any jurisdiction
in connection with the purchase and distribution of the Shares by the
Underwriters and such other approvals as have been obtained.
(f) NON-CONTRAVENTION. Neither the sale of the Securities being
sold by such Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by such Selling Stockholder or the
fulfillment of the terms hereof by such Selling Stockholder will conflict
with, result in a breach or violation of, or constitute a default under any
law or the terms of any indenture or other agreement or instrument to which
such Selling Stockholder is party or bound, any judgment, order or decree
applicable to such Selling Stockholder or any court or regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over such Selling Stockholder.
(g) NO REGISTRATION OR OTHER SIMILAR RIGHTS. Such Selling
Stockholder does not have any registration or other similar rights to have
any equity or debt securities registered for sale by the Company under the
Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as are described in the Prospectus under
"Shares Eligible for Future Sale."
(h) NO PREEMPTIVE, CO-SALE OR OTHER RIGHTS. Such Selling
Stockholder does not have, or has waived prior to the date hereof, any
preemptive right, co-sale right or right of first refusal or other similar
right to purchase any of the Shares that are to be sold by the Company or any
of the other Selling Stockholders to the Underwriters pursuant to this
Agreement; and such Selling Stockholder does not own any warrants, options or
similar rights to acquire, and does not have any right or arrangement to
acquire, any capital stock, right, warrants, options or other securities from
the Company, other than those described in the Registration Statement and the
Prospectus.
(i) DISCLOSURE MADE BY SUCH SELLING STOCKHOLDER IN THE
PROSPECTUS. All information furnished by or on behalf of such Selling
Stockholder in writing expressly for use in the Registration Statement and
Prospectus is, and on the First Closing Date and the Second Closing Date (as
defined below) will be, true, correct, and complete in all material respects,
and does not, and on the First Closing Date and the Second Closing Date will
not, contain any untrue statement 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 Company Shares 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 Shares).
12
(j) NO PRICE STABILIZATION OR MANIPULATION. Such Selling
Stockholder has not taken and will not take, directly or indirectly, any
action designed to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of the Common Shares to facilitate
the sale or resale of the Shares.
(k) NO TRANSFER TAXES OR OTHER FEES. There are no transfer taxes
or other similar fees or charges under Federal law or the laws of any state,
or any political subdivision thereof, required to be paid in connection with
the execution and delivery of this Agreement or the sale by the Selling
Stockholders of the Shares.
(l) DISTRIBUTION OF OFFERING MATERIALS BY THE SELLING
STOCKHOLDERS. The Selling Stockholders have not distributed and will not
distribute, prior to the later of the Second Closing Date (as defined below)
and the completion of the Underwriters' distribution of the Shares, any
offering material in connection with the offering and sale of the Shares by
such Selling Stockholder other than a preliminary prospectus, the Prospectus
or the Registration Statement.
(m) NO MATERIAL UNDISCLOSED INSIDE INFORMATION. Such Selling
Stockholder is not prompted to sell the Shares to be sold by such Selling
Stockholder by (i) any information concerning the Company which is not set
forth in the Registration Statement and the Prospectus; (ii) any Material
Adverse Change, or any development that could reasonably be expected to
result in a Material Adverse Change; (iii) any material liability or
obligation, indirect, direct or contingent, not in the ordinary course of
business incurred by the Company and its subsidiaries, considered as one
entity, or any material transaction or agreement not in the ordinary course
of business consummated by the Company and its subsidiaries, considered as
one entity; (iv) any dividend or distribution of any kind declared, paid or
made by the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock or
repurchase or redemption by the Company or any of its subsidiaries of any
class of capital stock, or (v) with respect to each preliminary prospectus,
as amended or supplemented, as of its date and at all subsequent times
through the 30th day after the date hereof, any untrue statement or a
material fact or omission of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(n) CONFIRMATION OF COMPANY REPRESENTATIONS AND WARRANTIES. Such
Selling Stockholder has no reason to believe that the representations and
warranties of the Company contained in subsections (a) through (mm) of
Section 1(A) hereof are not true and correct, is familiar with the
Registration Statement and the Prospectus and is not prompted to sell the
shares to be sold by such Selling Stockholder because of any belief or
knowledge of any material fact, condition or information not disclosed in the
Registration Statement or the Prospectus which has had or may result in a
Material Adverse Change on the condition, financial or otherwise, or on the
earnings, business, operation or prospects, whether or not arising from
transactions in the ordinary course of business of the Company and its
subsidiaries, considered as one entity.
Any certificate signed by or on behalf of any Selling
Stockholder and delivered to the Representatives or to counsel for the
Underwriters shall be deemed to be a representation and warranty by such
Selling Stockholder to each Underwriter as to the matters covered thereby.
13
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and conditions
herein set forth, (i) the Company agrees to issue and sell to the several
Underwriters an aggregate of 3,036,000 Firm Shares and (ii) the Selling
Stockholders agree to sell to the several Underwriters an aggregate of
1,064,000 Firm Shares, each Selling Stockholder selling the number of Firm
Shares set forth opposite such Selling Stockholder's name on SCHEDULE II and
(iii) each Underwriter, severally and not jointly, agrees to purchase from
the Company and the Selling Stockholders the respective number of Firm Shares
set forth opposite its names on SCHEDULE I plus any additional number of
Shares which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 9 hereof. The purchase price per Firm Share to be
paid by the several Underwriters to the Company and the Selling Stockholders
shall be $[___] per share.
(b) Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, 755 Page ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by you and the Company, at 10:00 A.M. on
the third or fourth business day (as permitted under Rule 15c6-1 under the
Exchange Act) (unless postponed in accordance with the provisions of Section
9 hereof) following the date of the effectiveness of the Registration
Statement (or, if the Company has elected to rely upon Rule 430A of the
Regulations, the third or fourth business day (as permitted under Rule 15c6-1
under the Exchange Act) after the determination of the initial public
offering price of the Shares), or such other time not later than ten business
days after such date as shall be agreed upon by you and the Company (such
time and date of payment and delivery being herein called the "Closing
Date"). Payment shall be made to the Company or the Custodian, as applicable,
by wire transfer in same day funds, against delivery to you for the
respective accounts of the Underwriters of certificates for the Shares to be
purchased by them. Certificates for the Shares shall be registered in such
name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Closing Date. The
Company will permit you to examine and package such certificates for delivery
at least one full business day prior to the Closing Date.
(c) In addition, the Company and the Option Selling Stockholders
hereby grants to the Underwriters the option to purchase up to 615,000
Additional Shares at the same purchase price per share to be paid by the
Underwriters to the Company and the Selling Stockholders for the Firm Shares
as set forth in this Section 2, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option
may be exercised at any time and from time to time, in whole or in part, on
or before the thirtieth day following the date of the Prospectus, by written
notice by you to the Company. Such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised and the
date and time, as reasonably determined by you, when the Additional Shares
are to be delivered (such date and time being herein sometimes referred to as
the "Additional Closing Date"); PROVIDED, HOWEVER, that the Additional
Closing Date shall not be earlier than the Closing Date or earlier than the
second full business day after the date on which the option shall have been
exercised nor later than the eighth full business day after the date on which
the option shall have been exercised (unless such time and date are postponed
in accordance with the provisions of Sections 9 or 15 hereof). Certificates
for the Additional Shares shall be registered in such name or names and in
such authorized denominations as you may
14
request in writing at least two full business days prior to the Additional
Closing Date. The Company and the Selling Stockholders will permit you to
examine and package such certificates for delivery at least one full business
day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same ratio to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set
forth opposite the name of such Underwriter in SCHEDULE I hereto (or such
number increased as set forth in Section 9 hereof) bears to the total number
of Firm Shares, subject, however, to such adjustments to eliminate any
fractional shares as you in your sole discretion shall make. The number of
additional shares to be sold by the Company and each Option Selling
Stockholder shall be the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be sold as the number of Additional Shares set forth in SCHEDULE II
opposite the name of such Option Selling Stockholder (or, in the case of the
Company, as the number of Additional Shares to be potentially sold by the
Company as set forth in the introductory paragraph of this Agreement) bears
to the total number of Additional Shares.
Payment for the Additional Shares shall be made by wire
transfer in same day funds at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 755
Page ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as may be
mutually acceptable, upon delivery of the certificates for the Additional
Shares to you for the respective accounts of the Underwriters.
Each Selling Stockholder hereby agrees that (i) it will pay
all stock transfer taxes, stamp duties and other similar taxes, if any,
payable upon the sale or delivery of the Shares to be sold by such Selling
Stockholder to the several Underwriters, or otherwise in connection with the
performance of such Selling Stockholder's obligations hereunder and (ii) the
Custodian is authorized to deduct for such payment any such amounts from the
proceeds to such Selling Stockholder hereunder and to hold such amounts for
the account of such Selling Stockholder with the Custodian under the Custody
Agreement.
SECTION 3. OFFERING.
Upon your authorization of the release of the Firm Shares,
the Underwriters propose to offer the Shares for sale to the public upon the
terms set forth in the Prospectus.
SECTION 4. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
A. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Underwriters that:
(a) If the Registration Statement has not yet been declared
effective the Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible, and if Rule 430A is used or the filing of the Prospectus is
otherwise required under Rule 424(b) or Rule 434, the Company will file the
Prospectus (properly completed if Rule 430A has been used)
15
pursuant to Rule 424(b) or Rule 434 within the prescribed time period and
will provide evidence satisfactory to you of such timely filing. If the
Company elects to rely on Rule 434, the Company will prepare and file a term
sheet that complies with the requirements of Rule 434.
The Company will notify you immediately (and, if requested
by you, will confirm such notice in writing) (i) when the Registration
Statement and any amendments thereto become effective, (ii) of any request by
the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iii) of the
mailing or the delivery to the Commission for filing of any amendment of or
supplement to the Registration Statement or the Prospectus, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, (v) of the
receipt of any comments from the Commission, and (vi) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose. If the Commission shall
propose or enter a stop order at any time, the Company will make every
reasonable effort to prevent the issuance of any such stop order and, if
issued, to obtain the lifting of such order as soon as possible. The Company
will not file any amendment to the Registration Statement or any amendment of
or supplement to the Prospectus (including the prospectus required to be
filed pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on
file at the time of the effectiveness of the Registration Statement before or
after the effective date of the Registration Statement or file any document
under the Exchange Act if such document would be deemed to be incorporated by
reference into the Prospectus to which you shall reasonably object in writing
after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would, in the judgment of the Underwriters or the Company include an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it
shall be necessary at any time to amend or supplement the Prospectus or
Registration Statement to comply with the Securities Act or the Regulations,
or to file under the Exchange Act so as to comply therewith any document
incorporated by reference in the Registration Statement or the Prospectus or
in any amendment thereof or supplement thereto, the Company will notify you
promptly and prepare and file with the Commission an appropriate amendment or
supplement (in form and substance satisfactory to you) which will correct
such statement or omission or which will effect such compliance and will use
its best efforts to have any amendment to the Registration Statement declared
effective as soon as possible.
(c) The Company will promptly deliver to you one copy of the
signed Registration Statement, including exhibits and all documents
incorporated by reference therein and all amendments thereto, and the Company
will promptly deliver to each of the Underwriters such number of copies of
any preliminary prospectus, the Prospectus, the Registration Statement, all
amendments of and supplements to such documents, if any, and all documents
incorporated by reference in the Registration Statement and
16
Prospectus or any amendment thereof or supplement thereto, without exhibits,
as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with
you, at or prior to the time of effectiveness of the Registration Statement,
to qualify the Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of such jurisdictions as you
may designate and to maintain such qualification in effect for so long as
required for the distribution thereof; except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Securities Act) to its security holders and
to you as soon as practicable, but not later than 45 days after the end of
its fiscal quarter in which the first anniversary date of the effective date
of the Registration Statement occurs, an earning statement (in form complying
with the provisions of Rule 158 of the Regulations) covering a period of at
least twelve consecutive months beginning after the effective date of the
Registration Statement.
(f) During the period of 90 days from the date of the
Prospectus, the Company will not, without your prior written consent, issue,
sell, offer or agree to sell, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, any Common Shares (or any securities
convertible into, exercisable for or exchangeable for Common Shares), and the
Company will obtain the undertaking (in the form of the Lock-Up Agreement
attached as EXHIBIT A) of each of its officers and directors and each
beneficial owner of five or more percent of the outstanding issued share
capital of the Company not to engage in any of the aforementioned
transactions on their own behalf, other than the sale of Shares hereunder and
the Company's issuance of Common Shares upon the exercise of presently
outstanding stock options.
(g) During a period of three years from the effective date of
the Registration Statement, the Company will furnish to you copies of (i) all
reports to its shareholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or
any national securities exchange.
(h) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to cause the Shares to
be approved for inclusion in the National Association of Securities Dealers
Automated Quotation National Market System.
(j) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, will
file all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act within the time periods required by
the Exchange Act and the rules and regulations thereunder.
17
B COVENANTS OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder further covenants and agrees with each Underwriter:
(a) Such Selling Stockholder will not, during the period of 90
days from the date of the Prospectus, without your prior written consent,
sell, offer or agree to sell, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, any Common Shares (or any securities
convertible into, exercisable for or exchangeable for Common Shares) now
owned or hereafter acquired directly by such person or with respect to which
such person has or hereafter acquires the power of disposition, otherwise
than (i) as a bona fide gift or gifts, provided the donee or donees thereof
agree in writing to be bound by this restriction, (ii) as a distribution to
partners or shareholders of such person, provided that the distributees
thereof agree in writing to be bound by the terms of this restriction, (iii)
with respect to dispositions of Common Shares acquired on the open market or
(iv) with the prior written consent of Bear, ▇▇▇▇▇▇▇ & Co. Inc. The foregoing
restriction has been expressly agreed to preclude the holder of the
Securities from engaging in any hedging or other transaction which is
designed to or reasonably expected to lead to or result in a disposition of
Common Shares during the 90 days following the date of the Prospectus, even
if such Common Shares would be disposed of by someone other than such holder.
Such prohibited hedging or other transactions would include, without
limitation, any short sale (whether or not against the box) or any purchase,
sale or grant of any right (including, without limitation, any put or call
option) with respect to any Common Shares or with respect to any security
(other than a broad-based market basket or index) that includes, relates to
or derives any significant part of its value from Common Shares. Furthermore,
such Selling Stockholder also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent against the transfer
of Common Shares held by such person except in compliance with this
restriction.
(b) To deliver to the Representatives prior to the First Closing
Date a properly completed and executed United States Treasury Department Form
W-9.
(c) If, at any time prior to the date on which the distribution
of the Shares as contemplated herein and in the Prospectus has been
completed, as determined by the Representatives, such Selling Stockholder has
knowledge of the occurrence of any event as a result of which the Prospectus
or the Registration Statement, in each case as then amended or supplemented,
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, such Selling
Stockholder will promptly notify the Company and the Representatives in
writing.
SECTION 5. PAYMENT OF EXPENSES.
The Company and the Selling Stockholders, jointly and
severally, agree to pay in such proportions as they may agree upon among
themselves all costs and expenses incident to the performance of their
obligations hereunder, including those in connection with (i) preparing,
printing, duplicating, filing and distributing the Registration Statement, as
originally filed and all amendments thereof (including all exhibits thereto),
any preliminary prospectus, the Prospectus and any amendments or supplements
thereto (including, without limitation, fees and expenses of the Company's
accountants and counsel), the underwriting documents (including this
Agreement and the Agreement Among Underwriters) and all other documents
related to the public offering of the Shares (including those supplied to the
Underwriters in quantities as hereinabove stated), (ii) the
18
issuance, transfer and delivery of the Shares to the Underwriters, including
any transfer or other taxes payable thereon, (iii) the qualification of the
Shares under state or foreign securities or Blue Sky laws, including the
costs of printing and mailing a preliminary and final "Blue Sky Survey"
and/or a preliminary and final Canadian Securities Law Survey and "wrapper"
for the prospectus, and the fees of counsel for the Underwriters and such
counsel's disbursements in relation thereto, (iv) quotation of the Shares on
the National Association of Securities Dealers Automated Quotation National
Market System, (v) filing fees of the Commission, (vi) filing fees of the
National Association of Securities Dealers, Inc. and the fees of counsel for
the Underwriters and such counsel's disbursements in relation thereto; (vii)
the cost of printing certificates representing the Shares, (viii) the cost
and charges of any transfer agent or registrar.
The Selling Stockholders further agree with each
Underwriter to pay (directly or by reimbursement) all fees and expenses
incident to the performance of their obligations under this Agreement which
are not otherwise specifically provided for herein, including but not limited
to (a) fees and expenses of counsel and other advisors for such Selling
Stockholders, (b) fees and expenses of the Custodian and (c) expenses and
taxes incident to the sale and delivery of the Shares to be sold by such
Selling Stockholders to the Underwriters hereunder (which taxes, if any, may
be deducted by the Custodian).
This Section 5 shall not affect or modify any separate,
valid agreement relating to the allocation of payment of expenses between the
Company, on the one hand, and the Selling Stockholders, on the other hand.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase and pay for
the Firm Shares and the Additional Shares, as provided herein, shall be
subject to the accuracy of the representations and warranties of the Company
and the Selling Stockholders herein contained, as of the date hereof and as
of the Closing Date (for purposes of this Section 6 "Closing Date" shall
refer to the Closing Date for the Firm Shares and any Additional Closing
Date, if different, for the Additional Shares), to the absence from any
certificates, opinions, written statements or letters furnished to you or to
O'Melveny & ▇▇▇▇▇ LLP ("Underwriters' Counsel") pursuant to this Section 6 of
any misstatement or omission, to the performance by the Company of its
obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M., New York time, on the date of this Agreement, or at
such later time and date as shall have been consented to in writing by you;
if the Company shall have elected to rely upon Rule 430A or Rule 434 of the
Regulations, the Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof; and, at or prior to
the Closing Date no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof shall have
been issued and no proceedings therefor shall have been initiated or
threatened by the Commission.
(b) At the Closing Date you shall have received the opinion of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date
addressed to the Underwriters and in form and substance satisfactory to
Underwriters' Counsel, to the effect that:
19
(i) 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 is duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed)
or the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good
standing which will not in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a whole. Each
of the Company and its subsidiaries has all requisite corporate
authority to own, lease and license its respective properties and
conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus. All of the issued and
outstanding capital stock of each subsidiary of the Company has
been duly and validly issued and is fully paid and nonassessable
and were not issued in violation of preemptive rights and, is owned
directly or indirectly by the Company, free and clear of any lien,
encumbrance, claim, security interest, restriction on transfer,
shareholders' agreement, voting trust or other defect of title
whatsoever.
(ii) The Company has an authorized capital stock as set
forth in the Registration Statement and the Prospectus. All of the
outstanding shares of Common Shares, including the Shares to be
sold by the Selling Stockholders, are duly and validly authorized
and issued, are fully paid and nonassessable and were not issued in
violation of or subject to any preemptive rights. The Shares to be
delivered on the Closing Date by the Company have been duly and
validly authorized and, when delivered by the Company in accordance
with this Agreement, will be duly and validly issued, fully paid
and nonassessable and will not have been issued in violation of or
subject to any preemptive rights. The Common Shares, the Firm
Shares and the Additional Shares conform to the descriptions
thereof contained in the Registration Statement and the Prospectus.
(iii) The Common Shares currently outstanding is quoted,
and the Shares to be sold under this Agreement to the Underwriters
are duly authorized for quotation, on the National Association of
Securities Dealers Automated Quotation National Market System.
(iv) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(v) There is no litigation or governmental or other
action, suit, proceeding or investigation before any court or
before or by any public, regulatory or governmental agency or body
pending or to the best of such counsel's knowledge, threatened
against, or involving the properties or business of, the Company or
any of its subsidiaries, which is of a character required to be
disclosed in the Registration Statement and the Prospectus which
has not been properly disclosed therein.
(vi) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated
hereby by the Company do not and will not (A) conflict with or
result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of
time, or both, would constitute a default) under, or result in the
creation or
20
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, any agreement, instrument, franchise, license or
permit known to such counsel to which the Company or any of its
subsidiaries is a party or by which any of such corporations or
their respective properties or assets may be bound or (B) violate
or conflict with any provision of the certificate of incorporation
or by-laws of the Company or any of its subsidiaries, or, to the
best knowledge of such counsel, any judgment, decree, order,
statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their respective
properties or assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with
any court or any public, governmental, or regulatory agency or body
having jurisdiction over the Company or any of its subsidiaries or
any of their respective properties or assets is required for the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, except for
(1) such as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by
the Underwriters (as to which such counsel need express no opinion)
and (2) such as have been made or obtained under the Securities Act.
(vii) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) comply as to form in all material respects with the
requirements of the Securities Act and the Regulations. The
documents filed under the Exchange Act and incorporated by
reference in the Registration Statement and the Prospectus or any
amendment thereof or supplement thereto (other than the financial
statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when such documents became effective or were so filed,
as they case may be, contained, in the case of a registration
statement which became effective under the Securities Act, 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, in the case of other
documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading.
(viii) The Registration Statement is effective under the
Securities Act, and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereof has been issued and no
proceedings therefor have been initiated or threatened by the
Commission and all filings required by Rule 424(b) of the
Regulations have been made.
21
(ix) The description in the Registration Statement and the
Prospectus of the charter and bylaws of the Company and of statutes
are accurate and fairly present the information required to be
presented by the Securities Act.
(x) To such counsel's knowledge, there are no agreements,
contracts, leases or documents to which the Company is a party of a
character required to be described or referred to in the
Registration Statement or Prospectus or any Incorporated Document
or to be filed as an exhibit to the Registration Statement or any
Incorporated Document which are not described or referred to
therein or filed as required.
(xi) To such counsel's knowledge, except as set forth in
the Registration Statement and Prospectus and any incorporated
document, no holders of Common Shares or other securities of the
Company have registration rights with respect to securities of the
Company and, except as set forth in the Registration Statement and
Prospectus, all holders of securities of the Company having rights
known to such counsel to registration of Common Shares or other
securities, because of the filing of the Registration Statement by
the Company, have, with respect to the offering contemplated
thereby, waived such rights or such rights have expired by reason
of lapse of time following notification of the Company's intent to
file the Registration Statement or have included securities in the
Registration Statement pursuant to the exercise of and in full
satisfaction of such rights.
(xii) To such counsel's knowledge, the Company and its
subsidiaries own or possess sufficient trademarks, trade names,
patent rights, copyrights, licenses, approvals, trade secrets and
other similar rights (collectively, "Intellectual Property Rights")
reasonably necessary to conduct their business as now conducted;
and the expected expiration of any such Intellectual Property
Rights would not result in a Material Adverse Effect. The Company
has not received any 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 Effect. To such counsel's knowledge,
the Company's discoveries, inventions, products, or processes
referred to in the Registration Statement or Prospectus do not
infringe or conflict with any right or patent which is the subject
of a patent application known to the Company.
(xiii) In addition, such opinion shall also contain a
statement that such counsel has participated in conferences with
officers and representatives of the Company, representatives of the
independent public accountants for the Company and the Underwriters
at which the contents and the Prospectus and related matters were
discussed and, no facts have come to the attention of such counsel
which would lead such counsel to believe that either the
Registration Statement at the time it became effective (including
the information deemed to be part of the Registration Statement at
the time of effectiveness pursuant to Rule 430A(b) or Rule 434, if
applicable), or any amendment thereof made prior to the Closing
Date as of the date of such amendment, contained an untrue
statement of a material fact or omitted to state any 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
any amendment thereof or supplement thereto
22
made prior to the Closing Date as of the date of such amendment or
supplement) and as of the Closing Date contained or contains an
untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary 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 or opinion with respect to the financial
statements and schedules and other financial data included or
incorporated by reference therein).
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters'
Counsel, familiar with the applicable laws; (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and certificates or other written statements of officers of departments of
various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and its subsidiaries, provided that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying thereon.
(c) At the Closing Date you shall have received the opinion of
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., internal intellectual property counsel for the Company,
dated the Closing Date addressed to the Underwriters and in form and
substance satisfactory to Underwriters' Counsel. Such counsel shall state
that he is familiar with the technology used by the Company in its business
and the manner of its use thereof and has read the Registration Statement and
the Prospectus, including particularly the portions of the Registration
Statement and the Prospectus referring to patents, trade secrets, trademarks,
service marks or other proprietary information or materials and:
(i) As to the statements under the captions "Risk
Factors--If the protection of our proprietary rights is inadequate,
our business could be harmed," "--Protection of our intellectual
property rights or the efforts of third parties to enforce their
own intellectual property rights against us, has in the past
resulted in and may in the future result in costly and time
consuming litigation" and "--Our efforts to protect our
intellectual may be less effective in some foreign countries where
intellectual property rights are not as well protected as in the
United States" and "Business--Patents And Other Intellectual
Property," nothing has come to the attention of such counsel which
caused him to believe that the above-mentioned sections of the
Registration Statement and any amendment or supplement thereto made
available and reviewed by such counsel, at the time the
Registration Statement became effective and at all times subsequent
thereto up to and on the Closing Date and on any later date on
which Option Stock are to be purchased, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading;
23
(ii) Such counsel knows of no material action, suit, claim
or proceeding relating to patents, patent rights or licenses,
trademarks or trademark rights, copyrights, collaborative research,
licenses or royalty arrangements or agreements or trade secrets,
know-how or proprietary techniques, including processes and
substances, owned by or affecting the business or operations of the
Company which are pending or threatened against the Company or any
of its officers or directors;
(iii) The Company is listed in the records of the United
States Patent and Trademark Office as the holder of record of the
patents listed on a schedule to such opinion (the "Patents") and
each of the applications listed on a schedule to such opinion (the
"Applications"). To the knowledge of such counsel, there are no
claims of third parties to any ownership interest or lien with
respect to any of the Patents or Applications. Such counsel is not
aware of any material defect in form in the preparation or filing
of the Applications on behalf of the Company. The Applications are
being pursued by the Company. The Company owns as its sole property
the Patents and pending Applications;
(iv) The Company is listed in the records of the
appropriate foreign offices as the sole holder of record of the
foreign patents listed on a schedule to such opinion (the "Foreign
Patents") and each of the applications listed on a schedule to such
opinion (the "Foreign Applications"). Such counsel knows of no
claims of third parties to any ownership interest or lien with
respect to the Foreign Patents or Foreign Applications. Such
counsel is not aware of any material defect of form in the
preparation or filing of the Foreign Applications on behalf of the
Company. The Foreign Applications are being pursued by the Company.
The Company owns as its sole property the Foreign Patents and
pending Foreign Applications; and
(v) Such counsel knows of no reason why the Patents or
Foreign Patents are not valid as issued. Such counsel has no
knowledge of any reason why any patent to be issued as a result of
any Application or Foreign Application would not be valid or would
not afford the Company useful patent protection with respect
thereto.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent such
counsel deems proper and to the extent specified in such opinion, if at all,
upon an opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to
Underwriters' Counsel, familiar with the applicable laws; (B) as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officers of departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company and its
subsidiaries, provided that copies of any such statements or certificates
shall be delivered to Underwriters' Counsel. The opinion of such counsel for
the Company shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in their opinion, you and they are
justified in relying thereon.
24
(d) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to you and to Underwriters' Counsel, and
the Underwriters shall have received from said Underwriters' Counsel a
favorable opinion, dated as of the Closing Date with respect to the issuance
and sale of the Shares, the Registration Statement and the Prospectus and
such other related matters as you may reasonably require, and the Company
shall have furnished to Underwriters' Counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(e) At the Closing Date you shall have received a certificate of
the Chief Executive Officer and Chief Financial Officer of the Company, dated
the Closing Date, to the effect that (i) the condition set forth in
subsection (a) of this Section 6 has been satisfied, (ii) as of the date
hereof and as of the Closing Date the representations and warranties of the
Company set forth in Section 1 hereof are accurate, (iii) as of the Closing
Date the obligations of the Company to be performed hereunder on or prior
thereto have been duly performed and (iv) subsequent to the respective dates
as of which information is given in the Registration Statement and the
Prospectus, the Company and its subsidiaries have not sustained any material
loss or interference with their respective businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental proceeding,
and there has not been any material adverse change, or any development
involving a material adverse change, in the business, prospects, properties,
operations, condition (financial or otherwise), or results of operations of
the Company and its subsidiaries taken as a whole, except in each case as
described in or contemplated by the Prospectus.
(f) At the time this Agreement is executed and at the Closing
Date, you shall have received a letter, from PricewaterhouseCoopers LLP,
independent public accountants for the Company, dated, respectively, as of
the date of this Agreement and as of the Closing Date addressed to the
Underwriters and in form and substance satisfactory to you, to the effect
that: (i) they are independent certified public accountants with respect to
the Company within the meaning of the Securities Act and the Regulations and
stating that the answer to Item 10 of the Registration Statement is correct
insofar as it relates to them; (ii) stating that, in their opinion, the
financial statements and schedules of the Company included and incorporated
by reference in the Registration Statement and the Prospectus and covered by
their opinion therein comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Exchange Act
and the applicable published rules and regulations of the Commission
thereunder; (iii) on the basis of procedures consisting of a reading of the
latest available unaudited interim consolidated financial statements of the
Company, and its subsidiaries, a reading of the minutes of meetings and
consents of the shareholders and boards of directors of the Company and its
subsidiaries and the committees of such boards subsequent to the date of the
most recent audited consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus, inquiries of officers and other employees of
the Company and its subsidiaries who have responsibility for financial and
accounting matters of the Company and its subsidiaries with respect to
transactions and events subsequent to the date of the most recent audited
consolidated balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus
and other specified procedures and inquiries to a date not more than five
days prior to the date of such letter, nothing has
25
come to their attention that would cause them to believe that: (A) the
unaudited consolidated financial statements and schedules of the Company
presented in the Registration Statement and the Prospectus do not comply as
to form in all material respects with the applicable accounting requirements
of the Securities Act and, if applicable, the Exchange Act and the applicable
published rules and regulations of the Commission thereunder or that such
unaudited consolidated financial statements are not fairly presented in
conformity with generally accepted accounting principles (except to the
extent certain footnote disclosures have been omitted in accordance with
applicable rules of the Commission under the Exchange Act) applied on a basis
substantially consistent with that of the audited consolidated financial
statements included and incorporated by reference in the Registration
Statement and the Prospectus; (B) with respect to the period subsequent to
the date of the most recent consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus there were, as of the date of the most recent
available monthly consolidated financial statements of the Company and its
subsidiaries, if any, and as of a specified date not more than five days
prior to the date of such letter, any changes in the capital stock or
long-term indebtedness of the Company or any decrease in the net current
assets or stockholders' equity of the Company, in each case as compared with
the amounts shown in the most recent balance sheet presented in the
Registration Statement and the Prospectus, except for changes or decreases
which the Registration Statement and the Prospectus disclose have occurred or
may occur or which are set forth in such letter or (C) that during the period
from the date following the date of the most recent consolidated balance
sheet of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus to the date of the
most recent available monthly consolidated financial statements of the
Company and its subsidiaries, if any, and to a specified date not more than
five days prior to the date of such letter, there was any decrease, as
compared with the corresponding period in the prior fiscal year, in total
revenues, or total or per share net income, except for decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur
or which are set forth in such letter; and (iv) stating that they have
compared specific dollar amounts, numbers of shares, percentages of revenues
and earnings, and other financial information pertaining to the Company and
its subsidiaries set forth in the Registration Statement and the Prospectus,
which have been specified by you prior to the date of this Agreement, to the
extent that such amounts, numbers, percentages, and information may be
derived from the general accounting and financial records of the Company and
its subsidiaries or from schedules furnished by the Company, and excluding
any questions requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries, and other
appropriate procedures specified by you set forth in such letter, and found
them to be in agreement.
(g) Prior to the Closing Date the Company shall have furnished
to you such further information, certificates and documents as you may
reasonably request.
(h) You shall have received from each person who is a director
or officer of the Company an agreement to the effect that such person will
not, directly or indirectly, without your prior written consent, offer, sell,
offer or agree to sell, grant any option to purchase or otherwise dispose (or
announce any offer, sale, grant of an option to purchase or other
disposition) of any Common Shares (or any securities convertible into,
exercisable for or exchangeable or exercisable for Common Shares) for a
period of 90 days after the date of the Prospectus.
26
(i) At the Closing Date, the Shares shall have been approved for
quotation on the National Association of Securities Dealers Automated
Quotation National Market System.
(j) At the Closing Date you shall have received the opinion of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders, dated the
Closing Date addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) The Underwriting Agreement has been duly authorized,
executed and delivered by or on behalf of each Selling Stockholder.
(ii) The execution and delivery by each Selling
Stockholder of, and the performance by each Selling Stockholder of
its obligations under, the Underwriting Agreement and its Custody
Agreement and its Power of Attorney will not contravene or conflict
with, result in a breach of, or constitute a default under, the
charter or by-laws, partnership agreement, trust agreement or other
organization documents, as the case may be, of each Selling
Stockholder, or, to the best of such counsel's knowledge, violate,
result in a breach of or constitute a default under the terms of
any other agreement or instrument to which any Selling Stockholder
is a party or by which it is bound, or any judgment, order or
decree applicable to any Selling Stockholder of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over any Selling Stockholder.
(iii) Each Selling Stockholder has good and valid title to
all of the Shares which may be sold by such Selling Stockholder
under the Underwriting Agreement and has the legal right and power,
and all authorization and approvals required to enter into the
Underwriting Agreement and its Custody Agreement and its Power of
Attorney, to sell, transfer and deliver all of the Shares which may
be sold by such Selling Stockholder under the Underwriting
Agreement and to comply with its other obligations under the
Underwriting Agreement, its Custody Agreement and its Power of
Attorney.
(iv) Each of the Custody Agreement and Power of Attorney
of each Selling Stockholder has been duly authorized, executed and
delivered by such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder, enforceable in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by
general equitable principles.
(v) Assuming that the Underwriters purchase the Shares
which are sold by each Selling Stockholder pursuant to the
Underwriting Agreement for value, in good faith and without notice
of any adverse claims, the delivery of such Shares pursuant to the
Underwriting Agreement will pass good and valid title to such
Shares, free and clear of any security interest, mortgage, pledge,
lieu encumbrance or other claim.
(vi) To the best of such counsel's knowledge, no consent,
approval, authorization or other order of, or registration or
filing with, any court or
27
governmental authority or agency, is required for the consummation
by any Selling Stockholder of the transactions contemplated in the
Underwriting Agreement, except as required under the Securities Act,
applicable state securities or blue sky laws, and from the NASD.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters'
Counsel, familiar with the applicable laws; (B) as to matters of fact, to the
extent they deem proper, on certificates of the Selling Stockholders or
responsible officers of the Selling Stockholders and certificates or other
written statements of officers of departments of various jurisdictions having
custody of documents respecting the corporate existence or good standing of the
Selling Stockholders, provided that copies of any such statements or
certificates shall be delivered to Underwriters' Counsel. The opinion of such
counsel shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in their opinion, you and they are justified
in relying thereon.
(k) On the Closing Date you shall received a written certificate
executed by or on behalf of each Selling Stockholder, dated the Closing Date,
to the effect that:
(i) the representations, warranties and covenants of such
Selling Stockholder set forth in Section 1(B) of this Agreement are
true and correct with the same force and effect as though expressly
made by such Selling Stockholder on and as of such Closing Date; and
(ii) such Selling Stockholder 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.
(l) At least three business days prior to the date hereof, the
Company and the Selling Stockholders shall have furnished for review by the
Representatives copies of the Powers of Attorney and Custody Agreements
executed by each of the Selling Stockholders and such further information,
certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled when and as required by this Agreement, or if any of
the certificates, opinions, written statements or letters furnished to you or
to Underwriters' Counsel pursuant to this Section 6 shall not be in all
material respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
cancelled by you at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Company in writing, or by
telephone, telex or telegraph, confirmed in writing.
28
SECTION 7. INDEMNIFICATION
(a) (i) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
for the registration of the Shares, as originally filed or any amendment
thereof, or any related preliminary prospectus or the Prospectus, or in any
supplement thereto or amendment thereof, 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;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to
the extent but only to the extent that any such loss, liability, claim,
damage or expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through you expressly for use
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have including under this Agreement.
(ii) The Selling Stockholders, severally and not jointly,
agree to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon (A) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Shares,
as originally filed or any amendment thereof, or any related preliminary
prospectus or the Prospectus, or in any supplement thereto or amendment
thereof, or 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 reliance upon and in conformity with written information
furnished to the Company or the Underwriters by such Selling Stockholder,
directly or through such Selling Stockholder's representatives, specifically
for use in the preparation thereof; or (B) in whole or in part upon any
inaccuracy in the representations and warranties of such Selling Stockholder
contained in Section 1(B)(c) hereof; PROVIDED, HOWEVER, that in no case shall
any Selling Stockholder be liable or responsible for any amount in excess of
the gross proceeds (before deducting underwriting discounts and commissions)
applicable to the Shares sold by such Selling
29
Stockholder hereunder. This indemnity agreement will be in addition to any
liability which the Selling Stockholders may otherwise have including under
this Agreement.
(iii) The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Living Trust and the ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ Living Trust hereby acknowledge that they jointly furnished the
following information to the Company in writing specifically for use in the
preparation of the Registration Statement and the Prospectus and each of them
confirms that such information is correct: (a) the information in the ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ line in the table under the caption "Principal and Selling
Stockholders" and all of the information in the related footnote, (b) all of
the information under the caption "Related Party Transactions," (c) the
information in the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ line in the table under the caption
"Management" and all of the information in the first paragraph following the
table and (d) all of the information regarding ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ under the
caption "Executive Compensation and Other Information" in the Proxy Statement
filed by the Company with the Commission on January 13, 2000 and incorporated
by reference in the Registration Statement and the Prospectus.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the
Company, each of the officers of the Company who shall have signed the
Registration Statement, each Selling Stockholder and each other person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including
but not limited to attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts
paid in settlement of any claim or litigation), jointly or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Shares, as originally
filed or any amendment thereof, or any related preliminary prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of any Underwriter through you expressly for use therein; PROVIDED, HOWEVER,
that in no case shall any Underwriter be liable or responsible for any amount
in excess of the underwriting discount applicable to the Shares purchased by
such Underwriter hereunder. This indemnity will be in addition to any
liability which any Underwriter may otherwise have including under this
Agreement. Each of the Company and each of the Selling Stockholders, and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act, hereby acknowledges that the only information that
the Underwriters have furnished to the Company expressly for use in the
registration statement relating to the Shares as originally filed or in any
amendment thereof, any related preliminary prospectus or the Prospectus or in
any amendment thereof or supplement thereto are the statements set forth in
the Prospectus under the caption "Underwriting" as follows: (i) in the table
in the first paragraph, (ii) in the first, sentences of the second paragraph
(regarding the
30
concession and reallowance) subsection titled "Dealers' Compensation," and
(iii) in the second paragraph of the subsection titled "Online activities."
(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 each party against whom
indemnification is to be sought in writing of the commencement thereof (but
the failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by
one of the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel to have
charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of
the indemnifying parties (in which case the indemnifying parties shall not
have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties. Anything in this subsection to
the contrary notwithstanding, an indemnifying party shall not be liable for
any settlement of any claim or action effected without its written consent;
PROVIDED, HOWEVER, that such consent was not unreasonably withheld.
SECTION 8. CONTRIBUTION
In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision
(including any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting in the case of losses, claims,
damages, liabilities and expenses suffered by the Company or any Selling
Stockholder any contribution received by the Company or such Selling
Stockholder from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company, the Selling
Stockholders and one or more of the Underwriters may be subject, in such
proportions as is appropriate to reflect the relative benefits received by
the Company, the Selling Stockholders and the Underwriters from the offering
of the Shares or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the
31
indemnifying party not having received notice as provided in Section 7
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company, the
Selling Stockholders and the Underwriters in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company, the Selling Stockholders and the
Underwriters shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the Selling
Stockholders and (y) the underwriting discounts and commissions received by
the Underwriters, respectively, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company, the Selling
Stockholders and of the Underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8, (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder, (ii) in no case shall any Selling Stockholder be liable or
responsible for any amount in excess of the gross proceeds (before deducting
underwriting discounts and commissions) applicable to the Shares sold by such
Selling Stockholder hereunder, and (iii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the provisions of this Section
8 and the preceding sentence, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 8, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
clauses (i) and (iii) of this Section 8. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution
may be made against another party or parties, notify each party or parties
from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 8 or otherwise. No party shall be liable for contribution with
respect to any action or claim settled without its consent; PROVIDED,
HOWEVER, that such consent was not unreasonably withheld.
32
SECTION 9. DEFAULT BY AN UNDERWRITER
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and
if the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by you
pursuant to subsection (b) below) exceed in the aggregate 10% of the number
of Firm Shares or Additional Shares, to which the default relates shall be
purchased by the non-defaulting Underwriters in proportion to the respective
proportions which the numbers of Firm Shares set forth opposite their
respective names in SCHEDULE I hereto bear to the aggregate number of Firm
Shares set forth opposite the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including
any non-defaulting Underwriter or Underwriters who so agree) to purchase such
Firm Shares or Additional Shares, as the case may be, to which such default
relates on the terms contained herein. In the event that within 5 calendar
days after such a default you do not arrange for the purchase of the Firm
Shares or Additional Shares, as the case may be, to which such default
relates as provided in this Section 9, this Agreement or, in the case of a
default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and of the Company and the Option Selling
Stockholders to sell the Additional Shares shall thereupon terminate, without
liability on the part of the Company or the Selling Stockholders with respect
thereto (except in each case as provided in Section 5, 7(a) and 8 hereof) or
the Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as
aforesaid, you or the Company shall have the right to postpone the Closing
Date or Additional Closing Date, as the case may be, for a period, not
exceeding five business days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus or in any
other documents and arrangements, and the Company agrees to file promptly any
amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' Counsel, may thereby be made necessary
or advisable. The term "Underwriter" as used in this Agreement shall include
any party substituted under this Section 9 with like effect as if it had
originally been a party to this Agreement with respect to such Firm Shares
and Additional Shares.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS.
All representations and warranties, covenants and
agreements of the Underwriters, the Selling Stockholders and the Company
contained in this Agreement, including the agreements contained in Section 5,
the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, 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 by or on behalf of the
Company, any of its officers and directors or any controlling person thereof,
or any Selling Stockholder
33
and shall survive delivery of and payment for the Shares to and by the
Underwriters. The representations contained in Section 1 and the agreements
contained in Sections 5, 7, 8 and 11(d) hereof shall survive the termination
of this Agreement, including termination pursuant to Sections 9, 11 or 15
hereof.
SECTION 11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective, upon the later of
when (i) you and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution of this
Agreement. If either the initial public offering price or the purchase price
per Share has not been agreed upon prior to 5:00 P.M., New York time, on the
fifth full business day after the Registration Statement shall have become
effective, this Agreement shall thereupon terminate without liability to the
Company or the Underwriters except as herein expressly provided. Until this
Agreement becomes effective as aforesaid, it may be terminated by the Company
by notifying you or by you notifying the Company. Notwithstanding the
foregoing, the provisions of this Section 11 and of Sections 1, 5, 7 and 8
hereof shall at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at any
time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing
Date, as the case may be, if (A) any domestic or international event or act
or occurrence has materially disrupted, or in your opinion will in the
immediate future materially disrupt, the market for the Company's securities
or securities in general; or (B) if trading on the New York Stock Exchange or
the National Association of Securities Dealers Automated Quotation National
Market System shall have been suspended, or 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 National
Association of Securities Dealers Automated Quotation National Market System
by the New York Stock Exchange, the NASD or by order of the Commission or any
other governmental authority having jurisdiction; or (C) if a banking
moratorium has been declared by a state or federal authority or if any new
restriction materially adversely affecting the distribution of the Firm
Shares or the Additional Shares, as the case may be, shall have become
effective; or (D) (i) if the United States becomes engaged in hostilities or
there is an escalation of hostilities involving the United States or there is
a declaration of a national emergency or war by the United States or (ii) if
there shall have been such change in political, financial or economic
conditions if the effect of any such event in (i) or (ii) as in your judgment
makes it impracticable or inadvisable to proceed with the offering, sale and
delivery of the Firm Shares or the Additional Shares, as the case may be, on
the terms contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall
be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
the Company will, subject to demand by you, reimburse the Underwriters for
all out-of-
34
pocket expenses (including the fees and expenses of their counsel), incurred
by the Underwriters in connection herewith.
SECTION 12. NOTICES
All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and shall be mailed,
delivered, or telexed or telegraphed and confirmed in writing,
if to any Underwriter, to such Underwriter care of:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: General Counsel
with a copy to:
O'Melveny & ▇▇▇▇▇ LLP
Embarcadero Center West
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
If to the Company, to:
Semitool,Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: [▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇]
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
if to a Selling Stockholder, to its address as shown in SCHEDULE II, with a
copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
35
and, during the term of the Custody Agreement, with a copy to:
[Custodian]
[address]
Facsimile: [___]
Attn:
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 13. PARTIES
This Agreement shall insure solely to the benefit of, and
shall be binding upon, the Underwriters and the Company and the controlling
persons, directors, officers, employees and agents referred to in Section 7
and 8, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provision herein
contained. The term "successors and assigns" shall not include a purchaser,
in its capacity as such, of Shares from any of the Underwriters.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 15. FAILURE OF THE SELLING STOCKHOLDERS TO SELL AND DELIVER
COMMON SHARES.
If one or more of the Selling Stockholders shall fail to
sell and deliver to the Underwriters the Shares to be sold and delivered by
such Selling Stockholders at the Closing Date or the Additional Closing Date
pursuant to this Agreement, then the Underwriters may at their option, by
written notice from the Representatives to the Company and the Selling
Stockholders, either (i) terminate this Agreement without any liability on
the part of any Underwriter or, except as provided in Sections 5, 7, 8 and
11(d) hereof, the Company or the Selling Stockholders, or (ii) purchase the
shares which the Company and other Selling Stockholders have agreed to sell
and deliver in accordance with the terms hereof. If one or more of the
Selling Stockholders shall fail to sell and deliver to the Underwriters the
Shares to be sold and delivered by such Selling Stockholders pursuant to this
Agreement at the Closing Date or the Additional Closing Date, then the
Underwriters shall have the right, by written notice from the Representatives
to the Company and the Selling Stockholders, to postpone the First Closing
Date or the Additional Closing Date, as the case may be, but in no event for
longer than seven days in order that the required changes, if any, to the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected.
[Signature page follows.]
36
If the foregoing correctly sets forth the understanding
between you and the Company, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
among us.
Very truly yours,
SEMITOOL, INC.
By:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
EACH AND EVERY SELLING STOCKHOLDER
By:
------------------------------------------
ATTORNEY-IN-FACT
Accepted as of the date first above written
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ & COMPANY, INC.
WIT SOUNDVIEW CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ INCORPORATED
BY: BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
------------------------------------------
AUTHORIZED SIGNATORY
On behalf of themselves and the other
Underwriters named in SCHEDULE I hereto.
S-1