Exhibit 1.1
4,000,000 SHARES
COMMON STOCK
($.001 PAR VALUE)
UNDERWRITING AGREEMENT
________________, 2004
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇ & COMPANY, INC.
▇.▇. ▇▇▇▇▇▇▇▇▇, TOWBIN LLC
As Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, Catalyst Semiconductor, Inc., a Delaware corporation (the
"Company") and the persons listed on Schedule I hereto (the "Selling
Stockholders"), hereby address you as the representatives (the
"Representatives") of each of the persons, firms and corporations listed on
Schedule II hereto (collectively, the "Underwriters") and hereby confirm their
agreement with the several Underwriters as follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and sell to the
Underwriters 1,150,000 shares of its Common Stock, par value $.001 per share,
and Elex, N.V., a Selling Stockholder, proposes to sell to the Underwriters a
total of 2,850,000 shares of the Company's Common Stock, par value $.001 per
share, as set forth on Schedule I hereto (such 4,000,000 shares of Common Stock
are herein collectively referred to as the "Firm Shares"). Solely for the
purpose of covering over allotments in the sale of the Firm Shares, the Company
and the Selling Stockholders listed on Schedule III hereto (the "Option Selling
Stockholders") further propose to grant to the Underwriters the right to
purchase up to an additional 600,000 shares of Common Stock (the "Option
Shares"), as provided in Section 3 of this Agreement. The Firm Shares and the
Option Shares are herein sometimes referred to as the "Shares" and are more
fully described in the Prospectus hereinafter defined.
2. PURCHASE, SALE AND DELIVERY OF FIRM SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees and each Selling
Stockholder agrees, severally and not jointly, to sell to the Underwriters, and
each such Underwriter agrees, severally and not jointly, (a) to purchase from
the Company and from each of the Selling Stockholders, pro rata, at a purchase
price of $___ per share, the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule II hereto and (b) to purchase from the Company
and the Option
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Selling Stockholders any additional number of Option Shares which such
Underwriter may become obligated to purchase pursuant to Section 3 hereof.
The Company and the Selling Stockholders will deliver, at the sole
discretion of the Underwriters, an electronic deposit of shares through the
Depository Trust Company or definitive certificates for the Firm Shares at the
office of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as you and the Company may mutually agree
upon, for the accounts of the Underwriters against payment to the Company and
the Selling Stockholders of the purchase price for the Firm Shares sold by them
to the several Underwriters by wire transfer of immediately available funds
payable to the order of the Company and the Selling Stockholders, as their
respective interests may appear, and delivered to Pillsbury Winthrop LLP, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Pillsbury's Office"), or at
such other place as may be agreed upon between you and the Company (the "Place
of Closing"), at 10:00 a.m., New York time, on ____________, 2004, or at such
other time and date not later than three full business days thereafter as you
and the Company may agree, such time and date of payment and delivery being
herein called the "Closing Date."
If the Underwriters elect to receive certificates rather than an electronic
deposit of shares, the certificates for the Firm Shares so to be delivered will
be made available to you for inspection at Pillsbury's Office (or such other
place as you and the Company may mutually agree upon) at least one full business
day prior to the Closing Date and will be in such names and denominations as you
may request at least forty-eight hours prior to the Closing Date.
It is understood that an Underwriter, individually, may (but shall not be
obligated to) make payment on behalf of the other Underwriters whose funds shall
not have been received prior to the Closing Date for Shares to be purchased by
such Underwriter. Any such payment by an Underwriter shall not relieve the other
Underwriters of any of their obligations hereunder.
It is understood that the Underwriters propose to offer the Shares to the
public upon the terms and conditions set forth in the Registration Statement
hereinafter defined.
3. PURCHASE, SALE AND DELIVERY OF THE OPTION SHARES. The Company and the
Option Selling Stockholders hereby grant options to the Underwriters to purchase
from them on a pro rata basis up to 300,000 and 300,000 Option Shares,
respectively, on the same terms and conditions as the Firm Shares; provided,
however, that such options may be exercised only for the purpose of covering any
over allotments which may be made by them in the sale of the Firm Shares. No
Option Shares shall be sold or delivered unless the Firm Shares previously have
been, or simultaneously are, sold and delivered.
The options are exercisable on behalf of the several Underwriters by you,
as Representatives, at any time, and from time to time, before the expiration of
30 days from the date of the Prospectus (as defined below) (or, if such 30th day
shall be a Saturday or Sunday or a holiday, on the next day thereunder when The
Nasdaq National Market is open for trading), for
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the purchase of all or part of the Option Shares covered thereby, by notice
given by you to the Company and the Option Selling Stockholders in the manner
provided in Section 12 hereof, setting forth the number of Option Shares as to
which the Underwriters are exercising the options, and the date of delivery of
said Option Shares, which date shall not be more than five business days after
such notice unless otherwise agreed to by the parties. You may terminate the
options at any time, as to any unexercised portion thereof, by giving written
notice to the Company and the Option Selling Stockholders to such effect.
You, as Representatives, shall make such allocation of the Option Shares
among the Underwriters as may be required to eliminate purchases of fractional
Shares.
If the Underwriters elect to receive certificates rather than an electronic
deposit of shares, delivery of the Option Shares with respect to which the
options shall have been exercised shall be made to or upon your order at
Pillsbury's Office (or at such other place as you and the Company may mutually
agree upon), against payment by you of the per share purchase price to the
Company and the Option Selling Stockholders by wire transfer of immediately
available funds. Such payment and delivery shall be made at 10:00 a.m., New York
time, on the date designated in the notice given by you as above provided for
(which may be the same as the Closing Date), unless some other date and time are
agreed upon, which date and time of payment and delivery are called the "Option
Closing Date." The certificates for the Option Shares so to be delivered will be
made available to you for inspection at Pillsbury's Office at least one full
business day prior to the Option Closing Date and will be in such names and
denominations as you may request at least forty-eight hours prior to the Option
Closing Date.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND CERTAIN
SELLING STOCKHOLDERS.
(a) The Company and each of the Selling Stockholders listed on
Schedule III (collectively, the "Management Stockholders") represent and warrant
to and agree with each Underwriter that:
(i) A registration statement (Registration No. 333-116425) on
Form S-3 with respect to the Shares, including a preliminary prospectus,
and such amendments to such registration statement as may have been
required to the date of this Agreement, has been carefully prepared by the
Company pursuant to and in conformity with the requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and the rules and
regulations thereunder (the "1933 Act Rules and Regulations") of the
Securities and Exchange Commission (the "SEC") and has been filed with the
SEC under the 1933 Act. The Company meets the requirements for use of Form
S-3 under the 1933 Act. Copies of such registration statement, including
any amendments thereto, each related preliminary prospectus (meeting the
requirements of Rule 430 or 430A of the 1933 Act Rules and Regulations)
contained therein, and the exhibits, financial statements and schedules
thereto have heretofore been delivered by the Company to you. If such
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registration statement has not become effective under the 1933 Act, a
further amendment to such registration statement, including a form of final
prospectus, necessary to permit such registration statement to become
effective will be filed promptly by the Company with the SEC. If such
registration statement has become effective under the 1933 Act, a final
prospectus containing information permitted to be omitted at the time of
effectiveness by Rule 430A of the 1933 Act Rules and Regulations will be
filed promptly by the Company with the SEC in accordance with Rule 424(b)
of the 1933 Act Rules and Regulations. The term "Registration Statement" as
used herein means the registration statement as amended at the time it is
declared effective by the SEC under the 1933 Act (the "Effective Date"),
including financial statements and all exhibits and all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act and, if applicable, the information deemed to be included by Rule
430A of the 1933 Act Rules and Regulations. If it is necessary that a
post-effective amendment to such registration statement be filed and must
be declared effective or become automatically effective pursuant to the
1933 Act Rules and Regulations before the offering of Shares may commence,
the term "Registration Statement" as used herein means the registration
statement as amended by said post-effective amendment. If an abbreviated
registration statement is prepared and filed with the SEC in accordance
with Rule 462(b) under the 1933 Act (an "Abbreviated Registration
Statement"), the term "Registration Statement" as used in this Agreement
includes the Abbreviated Registration Statement. The term "Prospectus" as
used herein means (i) the prospectus as first filed with the SEC pursuant
to Rule 424(b) of the 1933 Act Rules and Regulations, or (ii) if no such
filing is required, the form of final prospectus included in the
Registration Statement at the Effective Date, taken together, including, in
each case, the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act. The term "Preliminary Prospectus" as
used herein shall mean a preliminary prospectus as contemplated by Rule 430
or 430A of the 1933 Act Rules and Regulations included at any time in the
Registration Statement. For purposes of this Agreement, the words "amend,"
"amendment," "amended," "supplement" or "supplemented" with respect to the
Registration Statement or the Prospectus shall mean amendments or
supplements to the Registration Statement or the Prospectus, as the case
may be, as well as documents filed after the date of this Agreement and
prior to the completion of the distribution of the Shares and incorporated
by reference in the Registration Statement or the Prospectus as described
above.
(ii) Neither the SEC nor any state or other jurisdiction or other
regulatory body has issued, and neither is, to the knowledge of the
Company, threatening to issue, an any stop order under the 1933 Act or
other order suspending the effectiveness of the Registration Statement (as
amended or supplemented) or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the qualification or
registration of the Shares for offering or sale in any jurisdiction nor
instituted or, to the knowledge of the Company, threatened to institute
proceedings for any such purpose. Each Preliminary Prospectus at its date
of issue, the Registration Statement and the
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Prospectus and any amendments or supplements thereto contain or will
contain, as the case may be, all statements which are required to be stated
therein by, and in all material respects conform or will conform, as the
case may be, to the requirements of, the 1933 Act and the 1933 Act Rules
and Regulations. Neither the Registration Statement nor any amendment
thereto, as of the applicable effective date, contains or will contain, as
the case may be, any untrue statement of a material fact or omits or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein, not misleading, and neither any Preliminary
Prospectus, the Prospectus nor any supplement thereto contains or will
contain, as the case may be, any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, information furnished to the Company relating to the
Underwriters by or on behalf of the Underwriters expressly for use in the
preparation thereof (as provided in Section 13 hereof) or relating to the
Selling Stockholders by or on behalf of the Selling Stockholders expressly
for use in the preparation thereof. There is no contract or document
required to be described in the Registration Statement or Prospectus or to
be filed as an exhibit to the Registration Statement which is not described
or filed as required. The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time
they were filed with the SEC, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the rules and regulations adopted by the SEC thereunder (the
"1934 Act Rules and Regulations"). Any future documents incorporated by
reference so filed, when they are filed, will comply in all material
respects with the requirements of the 1934 Act and the 1934 Act Rules and
Regulations; no such incorporated document contained or will 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; and, when read together and with the other information in
the Prospectus, at the time the Registration Statement became effective and
at the Closing Date, each such incorporated document did not or will not,
as the case may be, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by
general principles of equity (the "Exceptions").
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(iv) The Company and its subsidiaries have been duly organized
and are validly existing as corporations in good standing under the laws of
the states or other jurisdictions in which they are incorporated, with full
power and authority (corporate and other) to own, lease and operate their
properties and conduct their businesses as described in the Prospectus and,
with respect to the Company, to execute and deliver, and perform the
Company's obligations under, this Agreement; the Company and its
subsidiaries are duly qualified to do business as foreign corporations in
good standing in each state or other jurisdiction in which their ownership
or leasing of property or conduct of business legally requires such
qualification, except where the failure to be so qualified, individually or
in the aggregate, would not have a Material Adverse Effect. The term
"Material Adverse Effect" as used herein means any material adverse effect
on the condition (financial or other), net worth, business, affairs,
management, results of operations or cash flow of the Company and its
subsidiaries, taken as a whole.
(v) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree otherwise than as set forth
in the Prospectus and, since the respective dates as of which information
is given in the Prospectus, there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries (other
than the grant or exercise of stock options pursuant to option and other
plans for the purchase of the Company's Common Stock described in the
documents incorporated by reference into the Registration Statement) or any
material adverse change, or any development reasonably foreseeable to
result in a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a whole
(a "Material Adverse Change"), otherwise than as set forth in the
Prospectus.
(vi) The issuance and sale of the Shares and the execution,
delivery and performance by the Company of this Agreement, and the
consummation of the transactions herein contemplated, will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any properties or assets of the
Company or any of its subsidiaries under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, except to such extent as,
individually or in the aggregate, does not have a Material Adverse Effect,
nor will such action result in any violation of the provisions of the
Company's certificate of incorporation or bylaws or any statute, rule,
regulation or other law, or any order or judgment, of any court or
governmental agency or body having
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jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares or the consummation of the transactions
contemplated hereby, except such as have been, or will be prior to the
Closing Date, obtained under the 1933 Act or as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or blue sky laws in connection with the
purchase and distribution of the Shares by the Underwriters.
(vii) As of the date specified therein, the Company had the duly
and validly authorized capital stock as set forth in the Prospectus; all
outstanding shares of Common Stock of the Company and the Shares conform,
or when issued will conform, to the description thereof in the Prospectus
and have been, or, when issued and paid for in the manner described herein
will be, duly authorized, validly issued, fully paid and non-assessable;
and, except as described in the Prospectus, the issuance of the Shares to
be purchased from the Company hereunder is not subject to preemptive or
other similar rights, or any restriction upon the voting or transfer
thereof pursuant to applicable law or the Company's certificate of
incorporation, bylaws or governing documents or any agreement to which the
Company or any of its subsidiaries is a party or by which any of them may
be bound. All corporate action required to be taken by the Company for the
authorization, issuance and sale of the Shares has been duly and validly
taken. Except as disclosed in the Prospectus, as of the date specified
therein, there were no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or rights
related to or entitling any person to purchase or otherwise to acquire any
shares of, or any security convertible into or exchangeable or exercisable
for, the capital stock of, or other ownership interest in, the Company. The
outstanding shares of capital stock of the Company's subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable and
are owned by the Company (except for any directors' qualifying shares as
required by law) free and clear of any mortgage, pledge, lien, encumbrance,
charge or adverse claim and are not the subject of any agreement or
understanding with any person and were not issued in violation of any
preemptive or similar rights; and there are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities, commitments of
sale or instruments related to or entitling any person to purchase or
otherwise acquire any shares of, or any security convertible into or
exchangeable or exercisable for, the capital stock of, or other ownership
interest in any of the subsidiaries.
(viii) Each of the Company and its subsidiaries is in possession
of and is operating in compliance with all franchises, grants,
authorizations, licenses, certificates, permits, easements, consents,
orders and approvals ("Permits") from all state, federal, foreign and other
regulatory authorities, and has satisfied the requirements imposed by
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regulatory bodies, administrative agencies or other governmental bodies,
agencies or officials, that are required for the Company and its
subsidiaries lawfully to own, lease and operate their properties and
conduct their businesses as described in the Prospectus in each case with
such exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect, and, each of the Company and its subsidiaries is
conducting its business in compliance with all of the laws, rules and
regulations of each jurisdiction in which it conducts its business, in each
case with such exceptions, individually or in the aggregate, as would not
have a Material Adverse Effect; each of the Company and its subsidiaries
has filed all notices, reports, documents or other information ("Notices")
required to be filed under applicable laws, rules and regulations, in each
case, with such exceptions, individually or in the aggregate, as would not
have a Material Adverse Effect; and, except as otherwise specifically
described in the Prospectus, neither the Company nor any of its
subsidiaries has received any notification from any court or governmental
body, authority or agency, relating to the revocation or modification of
any such Permit or, to the effect that any additional authorization,
approval, order, consent, license, certificate, permit, registration or
qualification ("Approvals") from such regulatory authority is needed to be
obtained by any of them, in any case where it could be reasonably expected
that obtaining such Approvals or the failure to obtain such Approvals,
individually or in the aggregate, would have a Material Adverse Effect.
(ix) The Company and its subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns due prior to
the date hereof or have requested an automatic extension and paid all taxes
shown as due on such returns; all such tax returns are complete and correct
in all material respects; all tax liabilities are adequately provided for
on the books of the Company and its subsidiaries except to such extent as
would not have a Material Adverse Effect; the Company and its subsidiaries
have made all necessary payroll tax payments and are current and
up-to-date; and the Company and its subsidiaries have no knowledge of any
tax proceeding or action pending or threatened against the Company or its
subsidiaries which, individually or in the aggregate, might have a Material
Adverse Effect.
(x) Except as described in the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent licenses, trademarks, service marks and trade names
necessary to conduct the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any patents,
patent licenses, trademarks, service marks or trade names which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and marketable
title in fee simple to all items of real property and good and marketable
title to all personal property owned by them, in each case free and clear
of all liens, encumbrances,
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restrictions and defects except such as are described in the Prospectus or
do not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property; and any
property held under lease or sublease by the Company or any of its
subsidiaries is held under valid, subsisting and enforceable leases or
subleases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property by the Company
and its subsidiaries, as described in the Prospectus; and neither the
Company nor any of its subsidiaries has any notice or knowledge of any
material claim of any sort which has been, or may be, asserted by anyone
adverse to the Company's or any of its subsidiaries rights as lessee or
sublessee under any lease or sublease described above, or affecting or
questioning the Company's or any of its subsidiaries' rights to the
continued possession of the leased or subleased premises under any such
lease or sublease in conflict with the terms thereof.
(xii) Except as described in the Prospectus, there is no factual
basis for any action, suit or other proceeding involving the Company or any
of its subsidiaries or any of their material assets for any failure of the
Company or any of its subsidiaries, or any predecessor thereof, to comply
with any requirements of federal, state or local regulation relating to
air, water, solid waste management, hazardous or toxic substances, or the
protection of health or the environment. Except as described in the
Prospectus, none of the property owned or leased by the Company or any of
its subsidiaries is, to the best knowledge of the Company, contaminated
with any waste or hazardous substances, and neither the Company nor any of
its subsidiaries may be deemed an "owner or operator" of a "facility" or
"vessel" which owns, possesses, transports, generates or disposes of a
"hazardous substance" as those terms are defined inss.9601 of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C.ss.9601 et seq.
(xiii) No labor disturbance exists with the employees of the
Company or any of its subsidiaries or, to the Company's knowledge, is
imminent which, individually or in the aggregate, would have a Material
Adverse Effect. None of the employees of the Company or any of its
subsidiaries is represented by a union and, to the best knowledge of the
Company and its subsidiaries, no union organizing activities are taking
place. Neither the Company nor any of its subsidiaries has violated any
federal, state or local law or foreign law relating to discrimination in
hiring, promotion or pay of employees, nor any applicable wage or hour
laws, or the rules and regulations thereunder, or analogous foreign laws
and regulations, which might, individually or in the aggregate, result in a
Material Adverse Effect.
(xiv) The Company and its subsidiaries are in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company and its
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subsidiaries would have any liability; the Company and its subsidiaries
have not incurred and do not expect to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations thereunder
(the "Code"); and each "pension plan" for which the Company or any of its
subsidiaries would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects,
and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
(xv) The Company and its subsidiaries maintain insurance of the
types and in the amounts generally deemed adequate for its business,
including, but not limited to, directors' and officers' insurance,
insurance covering real and personal property owned or leased by the
Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect. The Company has no reason to believe
that it and its subsidiaries will not be able to renew their existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect.
(xvi) Neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in default or
violation with respect to its certificate of incorporation or bylaws.
Neither the Company nor any of its subsidiaries is, or with the giving of
notice or lapse of time or both would be, in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the properties or assets of the Company or any
of its subsidiaries is subject, or in violation of any statutes, laws,
ordinances or governmental rules or regulations or any orders or decrees to
which it is subject, including, without limitation, Section 13 of the 1934
Act, which default or violation, individually or in the aggregate, would
have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has, at any time during the past five years, (A) made any
unlawful contributions to any candidate for any political office, or failed
fully to disclose any contribution in violation of law, or (B) made any
payment to any state, federal or foreign government official, or other
person charged with similar public or quasi-public duty (other than payment
required or permitted by applicable law).
(xvii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject that, if determined adversely to the
Company or any of its subsidiaries, would
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individually or in the aggregate have a Material Adverse Effect or which
would materially and adversely affect the consummation of the transactions
contemplated hereby or which is required to be disclosed in the Prospectus;
to the best of the Company's knowledge, no such proceedings have been
threatened.
(xviii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company," as such terms are defined
in the Public Utility Holding Company Act of 1935, as amended (the "1935
Act").
(xix) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xx) PricewaterhouseCoopers LLP, the accounting firm which has
audited the financial statements filed with or incorporated by reference in
and as a part of the Registration Statement, is a registered independent
public accounting firm within the meaning of the 1933 Act and the 1933 Act
Rules and Regulations. The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that: (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
The consolidated financial statements and schedules of the Company,
including the notes thereto, filed with (or incorporated by reference) and
as a part of the Registration Statement or Prospectus, are accurate in all
material respects and present fairly the financial condition of the Company
and its subsidiaries as of the respective dates thereof and the
consolidated results of operations and changes in financial position and
consolidated statements of cash flow for the respective periods covered
thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved except as
otherwise disclosed therein. All adjustments necessary for a fair
presentation of results for such periods have been made. The selected
financial data included or incorporated by reference in the Registration
Statement and Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements.
(xxi) Except as disclosed in the Prospectus, no holder of any
security of the Company has any right to require registration of shares of
Common Stock or any
-11-
other security of the Company because of the filing of the Registration
Statement or the consummation of the transactions contemplated hereby and.
No person has the right, contractual or otherwise, to cause the Company to
permit such person to underwrite the sale of any of the Shares. Except for
this Agreement, there are no contracts, agreements or understandings
between the Company or any of its subsidiaries and any person that would
give rise to a valid claim against the Company, its subsidiaries or any
Underwriter for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Shares.
(xxii) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date or the Option Closing Date, if any, and (ii)
completion of the distribution of the Shares, will not distribute any
offering material in connection with the offering and sale of the Shares
other than the Registration Statement, the Preliminary Prospectus or the
Prospectus.
(xxiii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of the
Company's Common Stock, and the Company is not aware of any such action
taken or to be taken by affiliates of the Company.
(xxiv) As of the date the Registration Statement became
effective, the Common Stock was authorized for listing on the Nasdaq
National Market upon official notice of issuance.
(xxv) Except for the shares of Common Stock to be sold by the
Selling Stockholders, the outstanding shares of Common Stock, and
securities convertible into or exercisable or exchangeable for Common
Stock, held by the officers and directors of the Company and the Selling
Stockholders are subject to valid, binding and enforceable agreements
(collectively, the "Lock-up Agreements"), in substantially the form
attached as Exhibit A, that restrict the holders thereof from selling,
making any short sale of, granting any option for the purchase of, or
otherwise transferring or disposing of, any of such shares of Common Stock,
or any such securities convertible into or exercisable or exchangeable for
Common Stock (other than the exercise of options or other rights to acquire
the Company's Common Stock pursuant to the Company's option or other
stock-based compensation plans), for a period of ninety (90) days after the
Effective Date without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇ & Company,
Inc. or the Company.
(xxvi) The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) and
15d-15(e) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its
subsidiaries, is made known to the Company's chief executive officer
-12-
and its chief financial officer by others within those entities, and such
disclosure controls and procedures are effective to perform the functions
for which they were established; the Company's auditors and the Audit
Committee of the Board of Directors have been advised of: (i) any
significant deficiencies in the design or operation of internal controls
which could adversely affect the Company's ability to record, process,
summarize, and report financial data; and (ii) any fraud, whether or not
material, that involves management or other employees who have a role in
the Company's internal controls; any material weaknesses in internal
controls have been identified for the Company's auditors; since the date of
the most recent evaluation of such disclosure controls and procedures,
there have been no significant changes in internal controls or in other
factors that could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and material
weaknesses; the principal executive officers (or their equivalents) and
principal financial officers (or their equivalents) of the Company have
made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and any related rules and regulations promulgated by
the Commission, and the statements contained in any such certification are
complete and correct; and the Company is otherwise in compliance with all
applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are effective and
applicable to the Company.
(b) Each Selling Stockholder severally and not jointly represents and
warrants to and agrees with each Underwriter and the Company that:
(i) All consents, approvals, authorizations and orders necessary
for the execution and delivery by it of this Agreement, and the Custody
Agreement and Power of Attorney (as defined herein) and the sale and
delivery of the Shares to be sold by such Selling Stockholder hereunder and
thereunder have been given and are in full force and effect on the date
hereof and will be in full force and effect on the Closing Date (and, if
applicable, the Option Closing Date). This Agreement and the Custody
Agreement and Power of Attorney have been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder and are the valid and
legally binding obligations of such Selling Stockholder enforceable in
accordance with their terms except as enforceability may be limited by the
Exceptions and except to the extent the enforceability of the
indemnification and contribution provisions hereof and thereof may be
limited by public policy considerations as expressed in the 1933 Act as
construed by courts of competent jurisdiction.
(ii) Such Selling Stockholder has, and on the Closing Date (and,
if applicable, the Option Closing Date) will have good, valid and
marketable title to the Shares to be sold by such Selling Stockholder, free
and clear of all liens, mortgages, pledges, encumbrances, claims, equities
and security interests whatsoever, including any restriction on transfer
other than pursuant to this Agreement and the Custody Agreement and Power
of Attorney referred to herein, and now has, and on the Closing Date (and,
if
-13-
applicable, the Option Closing Date), will have, full right, power and
authority, and any approval required by law, to enter into this Agreement
and the Custody Agreement and Power of Attorney and to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder.
(iii) Upon delivery of and payment for such Shares hereunder, the
several Underwriters will acquire good, valid and marketable title to such
Shares to be sold by such Selling Stockholder hereunder, free and clear of
all liens, mortgages, pledges, encumbrances, claims, equities and security
interests whatsoever.
(iv) The execution, delivery and performance of this Agreement
and the Custody Agreement and Power of Attorney by such Selling
Stockholder, and the consummation by such Selling Stockholder of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the properties or assets of such
Selling Stockholder under, any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which it is bound or to which any of the
properties or assets of such Selling Stockholder is subject (or any
certificate or articles of incorporation or bylaws, partnership agreement,
trust document or articles of association of such Selling Stockholder, as
applicable), or any order or decree, or statute, law, ordinance, rule or
regulation applicable to such Selling Stockholder of any court or of any
governmental agency, authority or body having jurisdiction over such
Selling Stockholder or its properties or assets.
(v) Such Selling Stockholder does not have any knowledge or any
reason to believe that (i) the representations and warranties made in this
Agreement by the Company are not true and correct or (ii) the Registration
Statement or the Prospectus (or any amendment or supplement thereto)
contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading when the Registration Statement becomes
effective and at all times subsequent thereto. The information provided by
or regarding the Selling Stockholder in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) does not and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The representations and warranties of
such Selling Stockholder in the Custody Agreement and Power of Attorney
are, and on the Closing Date and any Option Closing Date will be, true and
correct.
(vi) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might be reasonably
expected to cause or result in stabilization or manipulation of the price
of the Common Stock, and such
-14-
Selling Stockholder is not aware of any such action taken or to be taken by
affiliates of such Selling Stockholder.
(vii) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder have been placed in
the custody of EquiServe Trust Company, N.A. (the "Custodian") under a
Custody Agreement and Power of Attorney (the "Custody Agreement and Power
of Attorney"), duly executed and delivered by such Selling Stockholder,
with the Custodian having the authority to deliver the Shares to be sold by
such Selling Stockholder hereunder, and such Selling Stockholder has duly
executed and delivered the Custody Agreement and Power of Attorney
appointing ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇ III as such Selling Stockholder's
agents and attorneys-in-fact (the "Attorneys-in-Fact") with the
Attorneys-in-Fact having authority to execute and deliver this Agreement on
behalf of such Selling Stockholder, to determine the purchase price to be
paid by the Underwriters to the Selling Stockholders as provided in Section
2, to authorize the delivery of the Shares to be sold by it hereunder and
otherwise to act on behalf of such Selling Stockholder in connection with
the transactions contemplated by this Agreement and such Custody Agreement.
(viii) The Shares represented by the certificates held in custody
for such Selling Stockholder under the Custody Agreement and Power of
Attorney are subject to the interests of the Underwriters hereunder, and
the arrangements made by such Selling Stockholder for such custody, and the
appointment by such Selling Stockholder of the Custodian and of the
Attorneys-in-Fact under the Custody Agreement and Power of Attorney, are,
except as specifically provided therein, irrevocable.
(ix) The obligations of such Selling Stockholder hereunder and
under the Custody Agreement and Power of Attorney shall not be terminated
by any Selling Stockholder or operation of law, whether by the death or
incapacity of any individual Selling Stockholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or, in the case of a partnership,
corporation or other entity, upon any dissolution, winding up, distribution
of assets or other event affecting the legal existence of such Selling
Stockholder, or by the occurrence of any other event; and if any individual
Selling Stockholder or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be terminated, or if
any such partnership, corporation or other entity should dissolve, wind up
or distribute assets or any other event affecting the legal existence of
such Selling Stockholder should occur, or if any other such event should
occur before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of each Selling
Stockholder in accordance with the terms and conditions of this Agreement
and of the Custody Agreement; and actions taken by the Custodian or
-15-
by the Attorneys-in-Fact pursuant to the Custody Agreement and Power of
Attorney shall be as valid as if such death, incapacity, termination,
dissolution, winding up, distribution of assets or other event had not
occurred, regardless of whether or not the Custodian or Attorneys-in-Fact,
or any of them, shall have received notice of such death, incapacity,
termination, dissolution, winding up, distribution of assets or other
event.
(x) Such Selling Stockholder is not prompted to sell shares of
Common Stock by any information concerning the Company or any of its
subsidiaries which is not included in the Registration Statement.
(c) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby; and any certificate signed by or on behalf of the Selling
Stockholders as such and delivered to you or to counsel for the Underwriters
shall be deemed a representation and warranty by the Selling Stockholders to
each Underwriter as to the matters covered thereby.
5. ADDITIONAL COVENANTS. The Company and, where expressly indicated, the
Selling Stockholders, covenant and agree with the several Underwriters that:
(a) The Company will timely transmit copies of the Prospectus, and
any amendments or supplements thereto, as applicable, to the SEC for filing
pursuant to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company will deliver to each of the Representatives, and to
counsel for the Underwriters (i) one (1) signed copy of the Registration
Statement as originally filed, including copies of exhibits thereto (other than
any exhibits incorporated by reference therein), of any amendments and
supplements to the Registration Statement (including all documents incorporated
by reference therein) and (ii) a signed copy of each consent and certificate
included or incorporated by reference in, or filed as an exhibit to, the
Registration Statement as so amended or supplemented; the Company will deliver
to the Underwriters through the Representatives as soon as practicable after the
date of this Agreement as many copies of the Prospectus (including all documents
incorporated by reference therein) as the Representatives may reasonably request
for the purposes contemplated by the 1933 Act; if the Registration Statement is
not effective under the 1933 Act, the Company will use its best efforts to cause
the Registration Statement to become effective as promptly as possible, and it
will notify you, promptly after it shall receive notice thereof, of the time
when the Registration Statement has become effective; the Company will promptly
advise the Representatives of any request of the SEC for amendment of the
Registration Statement or for supplement to the Prospectus or for any additional
information, and of the issuance by the SEC or any state or other jurisdiction
or other regulatory body of any stop order under the 1933 Act or other order
suspending the effectiveness of the Registration Statement (as amended or
supplemented) or preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending the qualification or registration of the Shares
for offering or sale in any jurisdiction, and of the institution or threat of
any proceedings therefor, of which the Company shall have received notice or
otherwise have knowledge prior to the completion of the distribution of the
Shares;
-16-
and the Company will use commercially reasonable efforts to prevent the
issuance of any such stop order or other order and, if issued, to secure the
prompt removal thereof.
(c) The Company will not file any amendment or supplement to the
Registration Statement, the Prospectus (or any other prospectus relating to the
Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that
differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not
file any document under the 1934 Act before the termination of the offering of
the Shares by the Underwriters if the document would be deemed to be
incorporated by reference into the Registration Statement or the Prospectus, of
which the Underwriters shall not previously have been advised and furnished with
a copy or to which the Underwriters shall have reasonably objected or which is
not in compliance with the 1933 Act Rules and Regulations; and the Company will
promptly notify you after it shall have received notice thereof of the time when
any amendment to the Registration Statement becomes effective or when any
supplement to the Prospectus has been filed.
(d) During the period when a prospectus relating to any of the Shares
is required to be delivered under the 1933 Act by any Underwriter or dealer, the
Company will comply, at its own expense, with all requirements imposed by the
1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended,
and by the rules and regulations of the SEC thereunder, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealing in
the Shares during such period in accordance with the provisions hereof and as
contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any of the
Shares is required to be delivered under the 1933 Act by any Underwriter or
dealer, (i) any event relating to or affecting the Company or of which the
Company shall be advised in writing by the Representatives shall occur as a
result of which, in the reasonable opinion of the Company or the
Representatives, the Prospectus as then amended or supplemented would include
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 or (ii) it shall be
necessary to amend or supplement the Registration Statement or the Prospectus to
comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or
the 1934 Act Rules and Regulations, the Company will forthwith at its expense
prepare and file with the SEC, and furnish to the Representatives a reasonable
number of copies of, such amendment or supplement or other filing that will
correct such statement or omission or effect such compliance.
(f) During the period when a prospectus relating to any of the Shares
is required to be delivered under the 1933 Act by any Underwriter or dealer, the
Company will furnish such proper information as may be lawfully required and
otherwise cooperate in qualifying the Shares for offer and sale under the
securities or blue sky laws of such jurisdictions as the Representatives may
reasonably designate and will file and make in each year such statements or
reports as are or may be reasonably required by the laws of such
-17-
jurisdictions; provided, however, that the Company shall not be required to
qualify as a foreign corporation or shall be required to qualify as a dealer in
securities or to file a general consent to service of process under the laws of
any jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of
the 1933 Act Rules and Regulations, the Company will make generally available to
its security holders and to holders of the Shares, as soon as practicable, an
earning statement (which need not be audited) in reasonable detail covering the
12 months beginning not later than the first day of the month next succeeding
the month in which occurred the effective date (within the meaning of Rule 158)
of the Registration Statement.
(h) During the period when a prospectus relating to any of the Shares
is required to be delivered under the 1933 Act by any Underwriter or dealer, the
Company will file promptly all documents required to be filed with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will
furnish to its security holders annual reports containing financial statements
audited by registered independent public auditors and quarterly reports
containing financial statements and financial information which may be
unaudited.
(i) During the period beginning from the date of this Agreement and
continuing to and including the earlier of (i) the termination of trading
restrictions on the Shares, as determined by the Underwriters, and (ii) ninety
(90) days after the Closing Date, the Company will not, without the prior
written consent of the Representatives, offer for sale, sell or enter into any
agreement to sell, or otherwise dispose of, any equity securities of the
Company, except for the Shares. The foregoing sentence shall not apply to (A)
the Shares to be sold hereunder, (B) any shares of Common Stock issued by the
Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus, (C)
any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to any currently existing employee benefit plans of the Company, (D)
any shares of Common Stock issued pursuant to any currently existing
compensatory stock plan of the Company [or (E) shares of Common Stock sold to
partners, vendors, manufacturers, distributors, customers, or other similar
parties pursuant to a strategic alliance or collaboration at a price greater
than or equal to the then market price of the Company's Common Stock, provided,
however, that in the case of subclause (E) above, the recipients of such Common
Stock agree to be bound by the restrictions of this Section 5(i)].
(j) The Company will apply the proceeds from the sale of the Shares
as set forth in the description under "Use of Proceeds" in the Prospectus, which
description complies in all material respects with the requirements of Item 504
of Regulation S-K.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the SEC in
connection with the registration of the Shares under the 1933 Act or relating to
any documents incorporated by reference into the Registration Statement or the
Prospectus.
-18-
(l) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will furnish to you, as soon as they have been prepared and
made publicly available, copies of any unaudited interim consolidated financial
statements of the Company and its subsidiaries for any quarterly or annual
periods subsequent to the quarterly or annual periods covered by the financial
statements appearing in the Registration Statement and the Prospectus.
(m) Prior to the Closing Date (and, if applicable, the Option Closing
Date), neither the Company nor any Selling Stockholder will issue any press
releases or other communications directly or indirectly and will hold no press
conferences with respect to the Company or any of its subsidiaries, the
financial condition, results of operations, business, properties, assets or
liabilities of the Company or any of its subsidiaries, or the offering of the
Shares, without your prior written consent [other than product related press
releases made in the normal course of business consistent with past practices].
(n) The Company will use its best efforts to obtain approval for, and
maintain the quotation of the Shares on, The Nasdaq National Market.
(o) The Company and its subsidiaries will maintain and keep accurate
books and records reflecting their assets and maintain internal accounting
controls which provide reasonable assurance that (1) transactions are executed
in accordance with management's authorization, (2) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
subsidiaries, (3) access to the assets of the Company and its subsidiaries is
permitted only in accordance with management's authorization, and (4) the
recorded accounts of the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.
(p) If the Company elects to rely on Rule 462(b) under the 1933 Act,
the Company shall both file an Abbreviated Registration Statement with the SEC
in compliance with Rule 462(b) and pay the applicable fees in accordance with
Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., New York time, on the
date of this Agreement, and (ii) the time that confirmations are given or sent,
as specified by Rule 462(b)(2).
(q) Each of the Selling Stockholders severally agrees with the
several Underwriters as follows:
(i) Such Selling Stockholder will cooperate to the extent
necessary to cause the Registration Statement or any post-effective
amendment thereto to become effective at the earliest possible time.
(ii) Such Selling Stockholder will pay all Federal and other
taxes, if any, on the transfer or sale of the Shares being sold by the
Selling Stockholder to the Underwriters.
-19-
(iii) Such Selling Stockholder will do or perform all things
required to be done or performed by the Selling Stockholder prior to the
Closing Date or any Option Closing Date, as the case may be, to satisfy all
conditions precedent to the delivery of the Shares pursuant to this
Agreement.
(iv) Except as stated in this Agreement and in the Preliminary
Prospectus and the Prospectus, such Selling Stockholder has not taken and
will not take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of the
Shares.
(v) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of
time referred to in Section 5(d) hereof, of any change in the Company's
condition (financial or other), net worth, business, affairs, management,
prospects, results of operations or cash flow or of any change in
information relating to such Selling Stockholder or the Company or any new
information relating to the Company or relating to any matter stated in the
Prospectus or any amendment or supplement thereto which comes to the
attention of such Selling Stockholder that suggests that any statement made
in the Registration Statement or the Prospectus (as then amended or
supplemented, if amended or supplemented) is or may be untrue in any
material respect or that the Registration Statement or Prospectus (as then
amended or supplemented, if amended or supplemented) omits or may omit to
state a material fact or a fact necessary to be stated therein in order to
make the statements therein not misleading in any material respect, or of
the necessity to amend or supplement the Prospectus (as then amended or
supplemented, if amended or supplemented) in order to comply with the 1933
Act or any other law.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters to purchase and pay for the Shares, as provided herein, shall
be subject to the accuracy, as of the date hereof and as of the Closing Date
(and, if applicable, the Option Closing Date), of the representations and
warranties of the Company and the Selling Stockholders contained herein, to the
performance by the Company and the Selling Stockholders of their covenants and
obligations hereunder, and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective not later than 1:00 p.m., New York time, on
the date hereof, or, with your consent, at a later date and time, not later than
_____ p.m., New York time, on the first business day following the date hereof,
or at such later date and time as may be approved by the Representatives; if the
Company has elected to rely on Rule 462(b) under the 1933 Act, the Abbreviated
Registration Statement shall have become effective not later than the earlier of
(x) 9:00 p.m. New York time, on the date hereof, or (y) at such later date and
time as may be approved by the Representatives. All filings required by Rule 424
and Rule 430A of the 1933 Act Rules and Regulations shall have been made. No
stop order suspending the effectiveness of
-20-
the Registration Statement, as amended from time to time, shall have been issued
and no proceeding for that purpose shall have been initiated or, to the
knowledge of the Company or any Underwriter, threatened or contemplated by the
SEC, and any request of the SEC for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the Underwriters.
(b) No Underwriter shall have advised the Company on or prior to the
Closing Date (and, if applicable, the Option Closing Date), that the
Registration Statement or Prospectus or any amendment or supplement thereto
contains an untrue statement of fact which, in the reasonable opinion of counsel
to the Underwriters, is material, or omits to state a fact which, in the
reasonable opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing
Date), you shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Professional Corporation, counsel for the Company, addressed to you and dated
the Closing Date (and, if applicable, the Option Closing Date), to the effect
that:
(i) The Registration Statement and all post-effective amendments
thereto have become effective under the 1933 Act and, to such counsel's
knowledge, no stop order proceedings with respect thereto are pending or
threatened under the 1933 Act and any required filing of the Prospectus and
any supplement thereto pursuant to Rule 424 under the 1933 Act has been
made in the manner and within the time period required by such Rule 424.
(ii) The Registration Statement and the Prospectus, and each
amendment or supplement thereto (including any document incorporated by
reference into the Prospectus) (except as to the descriptions of patent
matters and the financial statements and schedules and other financial data
contained therein, as to which such counsel need express no opinion), as of
the effective date of the Registration Statement and the date of the
Prospectus, comply as to form in all material respects with the
requirements of the 1933 Act; the documents incorporated by reference in
the Registration Statement and the Prospectus, at the time they became
effective or were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act (except as to the
descriptions of patent matters and the financial statements and schedules
and other financial data contained therein, as to which such counsel need
express no opinion).
(iii) The descriptions in the Registration Statement and
Prospectus of statutes, laws, ordinances, rules, regulations and legal or
governmental proceedings, fairly present the information required to be
shown under the 1933 Act and the 1933 Act Rules and Regulations.
-21-
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and the Prospectus, to execute, deliver and perform its
obligations under this Agreement and to issue, sell and deliver the Shares
as contemplated herein. The Company is duly qualified to do business as a
foreign corporation and is in good standing in California, Georgia and
Illinois.
(vi) To such counsel's knowledge, the entities listed on Exhibit
21.1 to the Company's Annual Report on Form 10-K filed with the SEC on July
17, 2003 are the only subsidiaries, direct or indirect, of the Company. To
such counsel's knowledge, the Company does not own any subsidiary domiciled
in the United States.
(vii) The issuance and sale of the Shares and the execution,
delivery and performance by the Company of this Agreement, and the
consummation of the transactions herein contemplated, will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any properties or assets of the
Company under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument listed as an exhibit to the Registration
Statement or incorporated by reference therein pursuant to Item 601(b)(1)
of Regulation S-K, nor will such action result in any violation of the
provisions of the Company's certificate of incorporation or bylaws or any
statute, rule, regulation or other law, or any order or judgment known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties.
(viii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is
required in connection with the execution, delivery and performance of this
Agreement, and the issuance and sale of the Shares or the consummation of
the transactions contemplated hereby, except such as may be required under
the 1933 Act or the 1933 Act Rules and Regulations and have been obtained,
or as may be required by the NASD or under state securities or blue sky
laws in connection with the purchase and distribution of the Shares by the
Underwriters. The Company has filed all Notices pursuant to, and has
obtained all Approvals required to be obtained under, and has otherwise
complied with all requirements of, all applicable laws and regulations in
connection with the issuance and sale of the Shares, in each case with such
exceptions, individually or in the aggregate, as would not affect the
validity of the Shares, their issuance or the transactions contemplated
hereby or have a Material Adverse Effect; and no such Notices or Approvals
are required to be filed or obtained by the Company in connection with the
execution, delivery and
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performance of this Agreement, the issuance and sale of the Shares or the
transactions contemplated hereby, in each case with such exceptions,
individually or in the aggregate, as would not affect the validity of the
Shares, their issuance or the transactions contemplated hereby or have a
Material Adverse Effect.
(ix) To the knowledge of such counsel, other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending to
which the Company is a party or of which any property of the Company is the
subject that, if determined adversely to the Company, would individually or
in the aggregate have a Material Adverse Effect; and, to the knowledge of
such counsel, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(x) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained in
the section captioned "Description of Capital Stock" in the Registration
Statement and the Prospectus; the Shares conform, or when issued will
conform, as to legal matters to the description thereof in the Prospectus;
and the Shares to be sold by the Company have been duly authorized and,
when delivered and paid for in accordance with this Agreement, will be
validly issued, fully paid and non-assessable. All corporate action
required to be taken by the Company for the authorization, issue and sale
of the Shares has been duly and validly taken. The Shares are duly
authorized for trading, subject to official notice of issuance and evidence
of satisfactory distribution, on The Nasdaq National Market. The Shares are
free of preemptive rights pursuant to the Company's Certificate of
Incorporation or bylaws and, to such counsel's knowledge, upon sale in the
manner contemplated in the Prospectus will be free of contractual written
preemptive rights, resale rights or rights of first refusal or any
restriction upon the voting or transfer thereof pursuant to applicable law
or the certificate of incorporation, bylaws or governing documents of the
Company or any agreement to which the Company is a party or by which any of
them may be bound; the certificates for the Shares are in due and proper
form.
(xi) The statements made in the Prospectus under the caption
"Description of Capital Stock," Item 15 of Part II of the Registration
Statement, and in the Company's Annual Report on Form 10-K for the year
ended April 30, 2004 under Item 11, "Executive Compensation" and Item 13,
"Certain Relationships and Related Transactions," to the extent that they
constitute summaries of documents referred to therein or matters of law or
legal conclusions, have been reviewed by such counsel and fairly present
the information disclosed therein.
(xii) To the knowledge of such counsel, there are no claims,
investigations, or legal or governmental proceedings which are required to
be described in the Registration Statement or the Prospectus but are not so
described.
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(xiii) The Company is not, and immediately after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
"investment company" as such term is defined in the 1940 Act.
(xiv) To the knowledge of such counsel and except as disclosed in the
Prospectus, no holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of
the Company because of the filing of the Registration Statement or the
consummation of the transactions contemplated hereby and, except as
disclosed in the Prospectus, no person has the right to require
registration under the 1933 Act of any shares of Common Stock or other
securities of the Company.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing nothing has come to the attention of
such counsel that causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment became
effective (or, if later, at the time of filing of the Company's most recent
annual report on Form 10-K) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such supplement, and at the
time of purchase or the additional time of purchase, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
descriptions of intellectual property matters, financial statements and
schedules and other financial data included in the Registration Statement or the
Prospectus).
In rendering the foregoing opinion, such counsel may rely, (1) as to
matters involving laws of any jurisdiction other than California, Delaware or
the United States, upon opinions addressed to the Underwriters of other counsel
satisfactory to them and Pillsbury Winthrop LLP, and (2) as to all matters of
fact, upon certificates and written statements of the executive officers of, and
accountants for, the Company, provided, in either case, that such counsel shall
state in their opinion that they and the Underwriters are justified in relying
thereon.
(d) On the Closing Date (and, if applicable, the Option Closing
Date), you shall have received the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Professional Corporation, counsel to the Selling Stockholders, addressed to you
and dated the Closing Date (and, if applicable, the Option Closing Date), to the
effect that:
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(i) This Agreement and the Custody Agreement have been duly
executed and delivered by or on behalf of each of the Selling Stockholders
and constitutes a legal, valid and binding agreement of such Selling
Stockholders enforceable in accordance with it terms.
(ii) To such counsel's knowledge, the execution and delivery of
this Agreement and the Custody Agreement and Power of Attorney by such
Selling Stockholders, the consummation by such Selling Stockholders of the
transactions contemplated herein and therein and the fulfillment by such
Selling Stockholders of the terms hereof and thereof will not result in a
breach or violation of any terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the properties or assets of such Selling
Stockholders under any bond, debenture, note or other evidence of
indebtedness or any indenture, mortgage, deed of trust, sale and leaseback
arrangement, joint venture or any other agreement or instrument to which
any such Selling Stockholder is a party, or by which it is bound or to
which any of the properties or assets of any such Selling Stockholder is
subject (or any certificate or articles of incorporation or bylaws,
partnership agreement, trust document or articles of association of any
such Selling Stockholder, as applicable), or any order or decree, or
statute, law, ordinance, rule or regulation applicable to any such Selling
Stockholder of any court or of any governmental agency, authority or body
having jurisdiction over any such Selling Stockholder or its properties.
(iii) Each Selling Stockholder has full legal right and power,
and has obtained any authorization or approval required by law (other than
those imposed by the Act and the securities or blue sky laws of certain
jurisdictions), to sell, assign, transfer and deliver the Shares to be sold
by such Selling Stockholder in the manner provided in this Agreement.
(iv) Delivery of certificates for the Shares by each Selling
Stockholder pursuant hereto will pass valid and marketable title thereto to
the Underwriters, free and clear of any adverse claim, assuming the
Underwriters purchase such Shares for value, without notice of any adverse
claim (as such terms are defined in the Uniform Commercial Code in effect
in the State of New York).
(v) No consent, approval, authorization or order of any court,
or governmental agency or body is required for consummation of the
transactions contemplated by this Agreement in connection with the Shares
to be sold by each Selling Stockholder hereunder except such as may be
required under the 1933 Act or the 1933 Act Rules and Regulations or as may
be required by the NASD or under state securities laws.
(vi) Each Selling Stockholder has good, valid and marketable
title to the Shares being sold by such Selling Stockholder hereunder, free
and clear of all liens,
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mortgages, pledges, encumbrances, claims, equities and security interests
whatsoever, including any restriction on transfer other than pursuant to
this Agreement and the Custody Agreement and Power of Attorney.
In rendering the foregoing opinion, such counsel may rely, (1) as to
matters involving laws of any jurisdiction other than California, Delaware or
the United States, upon opinions addressed to the Underwriters of other counsel
satisfactory to them and Pillsbury Winthrop LLP, and (2) as to all matters of
fact, upon certificates and written statements of the Selling Stockholders,
provided, in either case, that such counsel shall state in their opinion that
they and the Underwriters are justified in relying thereon.
(e) On the Closing Date (and, if applicable, the Option Closing
Date), you shall have received the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC,
patent counsel for the Company, addressed to you and dated the Closing Date
(and, if applicable, the Option Closing Date), to the effect that:
(i) Such counsel knows of no material action, suit, claim or
court proceeding relating to patents 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. Such counsel has made no
inquiries concerning such matters, and no issues related thereto have been
brought to such counsel's attention by the Company or third parties.
(ii) The Company (by its current or former name) is listed in the
records of the United States Patent and Trademark Office as the holder of
the United States patents listed on a schedule to such opinion (the
"Patents") and as the holder of each of the United States patent
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 filing of the Applications on behalf of the Company. To the knowledge
of such counsel, the Applications are being pursued by the Company, and
have been validly assigned to the Company. Counsel has made no inquiries
concerning such matters, and no issues related thereto have been brought to
such counsel's attention by the Company or third parties.
(iii) Such counsel knows of no reason why the Patents are not
valid as issued. Counsel has made no inquiries concerning such matters, and
no issues related thereto have been brought to such counsel's attention by
the Company or third parties.
(iv) The statements in the Prospectus under the caption "Risk
Factors -- Risks Related to Our Intellectual Property" that "We currently
have patents granted and pending in the United States," and that under the
caption "Risks Related to Our Stock and the Offering" that "[a]s of April
30, 2004, we owned 18 U.S. patents and have nine
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pending applications for additional U.S. patents," and "[t]he expiration
dates of our patents range from January 2008 to September 2021" are, to
such counsel's knowledge, accurate in all material respects.
(f) You shall have received on the Closing Date (and, if applicable,
the Option Closing Date), from Pillsbury Winthrop LLP, counsel to the
Underwriters, such opinion or opinions, dated the Closing Date (and, if
applicable, the Option Closing Date) with respect to such matters as you may
reasonably require; and the Company and Selling Stockholders shall have
furnished to such counsel such documents as they reasonably request for the
purposes of enabling them to review or pass on the matters referred to in this
Section 6 and in order to evidence the accuracy, completeness and satisfaction
of the representations, warranties and conditions herein contained.
(g) On the business day immediately preceding the date of this
Agreement and on the Closing Date (and, if applicable, the Option Closing Date),
you shall have received from PricewaterhouseCoopers, a letter or letters, dated
the date of this Agreement and the Closing Date (and, if applicable, the Option
Closing Date), respectively, in form and substance satisfactory to you,
confirming that they are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the published Rules and
Regulations, and stating to the effect set forth in Schedule IV hereto.
(h) Except as contemplated in the Prospectus, (i) neither the Company
nor any of its subsidiaries shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree; and (ii) subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its subsidiaries
shall have incurred any liability or obligation, direct or contingent, or
entered into any transactions, and there shall not have been any change in the
capital stock or short-term or long-term debt of the Company and its
subsidiaries or any change, or any development involving or which might
reasonably be expected to involve a prospective change in the condition
(financial or other), net worth, business, affairs, management, prospects,
results of operations or cash flow of the Company or its subsidiaries, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material or adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
on such Closing Date (and, if applicable, the Option Closing Date) on the terms
and in the manner contemplated in the Prospectus.
(i) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or the American Stock Exchange or The Nasdaq National Market
or the establishing on such exchanges or market by the SEC or by such exchanges
or markets of minimum or maximum
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prices which are not in force and effect on the date hereof; (ii) a suspension
or material limitation in trading in the Company's securities on The Nasdaq
National Market or the establishing on such market by the SEC or by such market
of minimum or maximum prices which are not in force and effect on the date
hereof; (iii) a general moratorium on commercial banking activities declared by
either federal or any state authorities; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war, which in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares in
the manner contemplated in the Prospectus; or (v) any calamity or crisis, change
in national, international or world affairs, act of God, change in the
international or domestic markets, or change in the existing financial,
political or economic conditions in the United States or elsewhere, which in
your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares in the manner contemplated in the
Prospectus.
(j) You shall have received certificates, dated the Closing Date
(and, if applicable, the Option Closing Date) and signed by the President and
the Chief Financial Officer of the Company, in their capacities as such, stating
that:
(i) the condition set forth in Section 6(a) has been fully
satisfied;
(ii) they have carefully examined the Registration Statement and
the Prospectus as amended or supplemented and all documents incorporated by
reference therein and nothing has come to their attention that would lead
them to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto or any documents incorporated by
reference therein as of their respective effective, issue or filing dates,
contained, and the Prospectus as amended or supplemented and all documents
incorporated by reference therein and when read together with the documents
incorporated by reference therein, at such Closing Date, contains any
untrue statement of a material fact, or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(iii) all representations and warranties made herein by the
Company are true and correct at such Closing Date, with the same effect as
if made on and as of such Closing Date (except with respect to
representations given as of a specific date), and all agreements herein to
be performed or complied with by the Company on or prior to such Closing
Date have been duly performed and complied with by the Company;
(iv) except as disclosed in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, other than in the ordinary course of business, or entered into
any transactions not in the ordinary course of business, which in either
case are material to the
-28-
Company or such subsidiary; and there has not been any change in the
capital stock or material increase in the short-term debt or long term debt
of the Company or any of its subsidiaries or any material adverse change or
any development involving or which may reasonably be expected to involve a
prospective material adverse change, in the condition (financial or other),
net worth, business, affairs, management, prospects, results of operations
or cash flow of the Company and its subsidiaries taken as a whole; and
there has been no dividend or distribution of any kind, paid or made by the
Company on any class of its capital stock; and
(v) covering such other matters as you may reasonably request.
(k) You shall have received certificates, dated the Closing Date
(and, if applicable, the Option Closing Date) signed by each of the Selling
Stockholders, stating that (i) all representations and warranties made herein by
such Selling Stockholder are true and correct at such Closing Date, with the
same effect as if made on and as of such Closing Date, and all agreements herein
to be performed or complied with by such Selling Stockholder on or prior to such
Closing Date have been duly performed or complied with by such Selling
Stockholder and (ii) covering such other matters as you may reasonably request.
(l) The Company and each of the Selling Stockholders shall not have
failed, refused, or been unable, at or prior to the Closing Date (and, if
applicable, the Option Closing Date) to have performed any agreement on their
part to be performed or any of the conditions herein contained and required to
be performed or satisfied by them at or prior to such Closing Date.
(m) The Company and the Selling Stockholders shall have furnished to
you at the Closing Date (and, if applicable, the Option Closing Date) such
further information, opinions, certificates, letters and documents as you may
have reasonably requested.
(n) The Shares shall have been approved for trading upon official
notice of issuance on The Nasdaq National Market.
(o) You shall have received duly and validly executed letter
agreements referred to in Section 5(m) hereof.
(p) On the Option Closing Date, the Option Selling Stockholders shall
have provided you with such representations, warranties, agreements, opinions,
letters, certificates and covenants with respect to the Option Shares as are
required to be delivered on the Closing Date with respect to the Firm Shares.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and to Pillsbury Winthrop LLP, counsel for the
several Underwriters. The Company and Selling
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Stockholders will furnish you with such signed and conformed copies of such
opinions, certificates, letters and documents as you may request.
If any of the conditions specified above in this Section 6 shall not have
been satisfied at or prior to the Closing Date (and, if applicable, the Option
Closing Date) or waived by you in writing, this Agreement may be terminated by
you on notice to the Company and the Selling Stockholders.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each of the Management Selling Stockholders,
severally and not jointly, will indemnify and hold harmless each Underwriter for
and against any losses, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the 1933 Act or otherwise, insofar as such
losses, damages or liabilities (or actions or claims in respect thereof) arise
out of or are based upon (i) an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Shares, or any
amendment or supplement thereto, or in any blue sky application or other
document executed by the Company or based on any information furnished in
writing by the Company, filed in any state or other jurisdiction in order to
qualify any or all of the Shares under the securities laws thereof (the "Blue
Sky Application"), or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses incurred by such Underwriter in connection with investigating,
preparing, pursuing or defending against or appearing as a third party witness
in connection with any such loss, damage, liability or action or claim,
including, without limitation, any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to the indemnified party, as such expenses are
incurred (including such losses, damages, liabilities or expenses to the extent
of the aggregate amount paid in settlement of any such action or claim, provided
that (subject to Section 7(d) hereof) any such settlement is effected with the
written consent of the Company and the Management Selling Stockholders);
provided, however, that the liability of a Management Selling Stockholder
pursuant to this Section 7(a) shall not exceed the product of the number of
Shares sold by such Management Selling Stockholder and the public offering
prices per share of the Shares set forth in the Prospectus, net of any
underwriting discounts and commissions and expenses of the sale of the Shares
paid by the Management Selling Stockholder; provided, further, that neither the
Company nor any Management Selling Stockholder shall be liable in any such case
to the extent, but only to the extent, that any such loss, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus or any other prospectus relating to the
Shares, or any such amendment or supplement, in reliance upon and in conformity
with written information relating to the Underwriter furnished to the Company by
you or by any Underwriter or Non-Management Selling Stockholder (as defined in
Section 7(b)) through you, expressly for
-30-
use in the preparation thereof (as provided in Section 13 hereof); provided
further that this indemnity shall not apply to any loss, liability, claim,
damage or expense to the benefit of any Underwriter from whom the person
asserting any loss, claim, damage, liability or expense purchased Shares, or any
person controlling such Underwriter, if copies of the Prospectus were timely
delivered to the Underwriter pursuant to Section 5 and a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, and if
the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or expense unless such
failure to deliver was the result of noncompliance by the Company of its
obligations under Section 5 hereof.
(b) Each Selling Stockholder who is not listed on Schedule III hereto
(the "Non-Management Selling Stockholders"), severally and not jointly, will
indemnify and hold harmless each Underwriter for and against any losses, damages
or liabilities to which the Company may become subject, under the 1933 Act or
otherwise, insofar as such losses, damages or liabilities (or actions or claims
in respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Shares, or any amendment or supplement thereto, or any Blue Sky
Application, or (ii) 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 any Preliminary Prospectus, the Registration Statement, the
Prospectus or any other prospectus relating to the Shares, or any such amendment
or supplement, or any Blue Sky Application, in reliance upon and in conformity
with written information furnished to the Company or any Underwriter by such
Non-Management Selling Stockholder specifically for use in the preparation
thereof, and will reimburse each Underwriter for any legal or other expenses
incurred by such Underwriter in connection with investigating, preparing,
pursuing or defending against or appearing as a third party witness in
connection with any such loss, damage, liability or action or claim, including,
without limitation, any investigation or proceeding by any governmental agency
or body, commenced or threatened, including the reasonable fees and expenses of
counsel to the indemnified party, as such expenses are incurred (including such
losses, damages, liabilities or expenses to the extent of the aggregate amount
paid in settlement of any such action or claim; provided that (subject to
Section 7(d) hereof) any such settlement is effected with the written consent of
such Non-Management Selling Stockholder); provided, however, that the liability
of a Non-Management Selling Stockholder pursuant to this Section 7(b) shall not
exceed the product of the number of Shares sold by such Non-Management Selling
Stockholder and the public offering prices per share of the Shares set forth in
the Prospectus, net of any underwriting discounts and commissions and expenses
of the sale of the Shares paid by the Non-Management Selling Stockholder;
provided further that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the benefit of any
-31-
Underwriter from whom the person asserting any loss, claim, damage, liability or
expense purchased Shares, or any person controlling such Underwriter, if copies
of the Prospectus were timely delivered to the Underwriter pursuant to Section 5
and a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person, if required by law so
to have been delivered, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage, liability
or expense.
(c) Each Underwriter, severally and not jointly, will (i) indemnify
and hold harmless the Company and each Selling Stockholder for and against any
losses, damages or liabilities to which the Company may become subject, under
the 1933 Act or otherwise, insofar as such losses, damages or liabilities (or
actions or claims in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus or any other
prospectus relating to the Shares, or any amendment or supplement thereto, or
any Blue Sky Application, or arise out of are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Shares, or any such amendment or supplement, or any Blue Sky
Application, in reliance upon and in conformity with written information
relating to the Underwriter furnished to the Company by you or by any
Underwriter through you, expressly for use in the preparation thereof (as
provided in Section 13 hereof), (ii) will indemnify and hold harmless the
Company and each Selling Stockholder for any loss, liability, claim, damage or
expense if copies of the Prospectus were timely delivered to the Underwriter
pursuant to Section 5 and a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage, liability or expense, and (iii) will reimburse the Company
or any such Selling Stockholder for any legal or other expenses incurred by the
Company or any such Selling Stockholder, as the case may be, in connection with
investigating or defending any such action or claim as such expenses are
incurred (including such losses, damages, liabilities or expenses to the extent
of the aggregate amount paid in settlement of any such action or claim, provided
that (subject to Section 7(d) hereof) any such settlement is effected with the
written consent of the Underwriters).
(d) Promptly after receipt by an indemnified party under Section
7(a), 7(b) or 7(c) hereof of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under Section 7(a), 7(b) or 7(c) hereof, notify each such
indemnifying party in writing of the commencement thereof, but the failure so to
notify such indemnifying party shall not relieve such indemnifying party from
any liability except to the extent that it has been prejudiced in any material
respect by such
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failure or from any liability that it may have to any such indemnified party
otherwise than under Section 7(a), 7(b) or 7(c) hereof. In case any such action
shall be brought against any such indemnified party and it shall notify each
indemnifying party of the commencement thereof, each such indemnifying party
shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party under Section 7(a), 7(b) or 7(c)
hereof similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of such indemnified party, be counsel to such indemnifying party), and, after
notice from such indemnifying party to such indemnified party of its election so
to assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party under Section 7(a), 7(b) or 7(c) hereof for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. The indemnified party shall have the
right to employ its own counsel in any such action, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party at the expense of the
indemnifying party has been authorized by the indemnifying party, (ii) the
indemnified party shall have been advised by such counsel that there may be a
conflict of interest between the indemnifying party and the indemnified party in
the conduct of the defense, or certain aspects of the defense, of such action
(in which case the indemnifying party shall not have the right to direct the
defense of such action with respect to those matters or aspects of the defense
on which a conflict exists or may exist on behalf of the indemnified party) or
(iii) the indemnifying party shall not in fact have employed counsel reasonably
satisfactory to such indemnified party to assume the defense of such action, in
any of which events such fees and expenses to the extent applicable shall be
borne, and shall be paid as incurred, by the indemnifying party. If at any time
such indemnified party shall have requested such indemnifying party under
Section 7(a), 7(b) or 7(c) hereof to reimburse such indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 7(a), 7(b) or 7(c)
hereof effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of such request
for reimbursement, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have acknowledged its
obligation to reimburse such indemnified party. No such indemnifying party
shall, without the written consent of such indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not such
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of such indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any such indemnified party.
In no event shall such indemnifying parties be liable for the fees and expenses
of more than one counsel, including any local counsel, for all such indemnified
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parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(e) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to indemnify or hold harmless an indemnified
party under Section 7(a), 7(b) or 7(c) hereof in respect of any losses, damages
or liabilities (or actions or claims in respect thereof) referred to therein,
then each indemnifying party under Section 7(a), 7(b) or 7(c) hereof shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, damages or liabilities (or actions or claims in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholders, on the one hand, and the
Underwriters, on the other hand, from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under Section 7(d) hereof and such indemnifying party was prejudiced in a
material respect by such failure, then each such indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault, as applicable, of the Company and the Selling Stockholders,
on the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions that resulted in such losses, damages or liabilities (or
actions or claims in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by, as applicable, the Company
and the Selling Stockholders, on the one hand, and the Underwriters, on the
other hand, shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the Company
and the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault, as applicable, of
the Company or the Selling Stockholders, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Stockholders, on the one hand, or the
Underwriters, on the other hand, 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 7(e)
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 that does not
take account of the equitable considerations referred to above in this Section
7(e). The amount paid or payable by such an indemnified party as a result of the
losses, damages or liabilities (or actions or claims in respect thereof)
referred to above in this Section 7(e) shall be deemed to include any legal or
other expenses incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(e), 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
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required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The contribution of a Selling Stockholder pursuant to this
Section 7(e) shall not exceed the product of the number of Shares sold by such
Selling Stockholder and the public offering prices per share of the Shares set
forth in the Prospectus net of any underwriting discounts and commissions and
expenses of the public offering paid by such Selling Stockholder. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
in this Section 7(e) to contribute are several in proportion to their respective
underwriting obligations with respect to the Shares and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section 7 shall be in addition to any liability that the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each officer, director, employee, agent or other
representative and to each person, if any, who controls any Underwriter within
the meaning of the 1933 Act; and the obligations of the Underwriters under this
Section 7 shall be in addition to any liability that the respective Underwriters
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company who signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the 1933 Act
and to each person, if any, who controls the Selling Stockholders within the
meaning of the 1933 Act.
(g) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof, including, without limitation, the
provisions of this Section 7, and are fully informed regarding such provisions.
They further acknowledge that the provisions of this Section 7 fairly allocate
the risks in light of the ability of the parties to investigate the Company and
its business in order to assure that adequate disclosure is made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, and any
supplement or amendment thereof, as required by the 1933 Act.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. The respective
representations, warranties, agreements and statements of the Company and the
Selling Stockholders and the Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain operative and in full force and effect regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, the Company or any of
its officers, directors or any controlling persons, or the Selling Stockholders,
and shall survive delivery of and payment for the Shares hereunder.
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9. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Shares on the
terms contained herein. If within thirty six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then the Company
and the Selling Stockholders shall be entitled to a further period of thirty six
hours within which to procure another party or parties reasonably satisfactory
to you to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company and the Selling
Stockholders that you have so arranged for the purchase of such Shares, or the
Company and the Selling Stockholders notify you that they have so arranged for
the purchase of such Shares, you or the Company and the Selling Stockholders
shall have the right to postpone the Closing Date for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any persons substituted under this Section 9 with like effect as if such person
had originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters made by you and the
Company and the Selling Stockholders as provided in subsection (a) above, the
aggregate number of Shares which remains unpurchased does not exceed
one-eleventh of the total Shares to be sold on the Closing Date, then the
Company and the Selling Stockholders shall have the right to require each non
defaulting Underwriter to purchase the Shares which such Underwriter agreed to
purchase hereunder and, in addition, to require each non defaulting Underwriter
to purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters made by you and the
Company and the Selling Stockholders as provided in subsection (a) above, the
number of Shares which remains unpurchased exceeds one-eleventh of the total
Shares to be sold on the Closing Date, or if the Company and the Selling
Stockholders shall not exercise the right described in subsection (b) above to
require the non defaulting Underwriters to purchase Shares of the defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Option
Closing Date, the obligations of the Underwriters to purchase and of the Company
and the Selling Stockholders to sell the Option Shares) shall thereupon
terminate, without liability on the part of any non defaulting Underwriter or
the Company and the Selling Stockholders except for the expenses to be borne by
the Company and the Underwriters as provided in Section 11 hereof
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and the indemnity and contribution agreements in Section 7 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective on the effective date of
the Registration Statement; provided, however, that the provisions of Section 7
and 11 shall at all times be effective. For the purposes of this Section 10(a),
the Shares shall be deemed to have been released to the public upon release by
you of the publication of a newspaper advertisement relating to the Shares or
upon release of telegrams, facsimile transmissions or letters offering the
Shares for sale to securities dealers, whichever shall first occur.
(b) This Agreement may be terminated by you at any time before it
becomes effective in accordance with Section 10(a) by notice to the Company and
the Selling Stockholders; provided, however, that the provisions of this Section
10 and of Section 7 and Section 11 hereof shall at all times be effective. In
the event of any termination of this Agreement pursuant to Section 9 or this
Section 10(b) hereof, the Company and the Selling Stockholders shall not then be
under any liability to any Underwriter except as provided in Section 7 or
Section 11 hereof.
(c) This Agreement may be terminated by you at any time at or prior
to the Closing Date by notice to the Company and the Selling Stockholders if any
condition specified in Section 6 hereof shall not have been satisfied on or
prior to the Closing Date. Any such termination shall be without liability of
any party to any other party except as provided in Sections 7 and 11 hereof.
(d) This Agreement also may be terminated by you, by notice to the
Company and the Selling Stockholders, as to any obligation of the Underwriters
to purchase the Option Shares, if any condition specified in Section 6 hereof
shall not have been satisfied at or prior to the Option Closing Date or as
provided in Section 9 of this Agreement.
If you terminate this Agreement as provided in Sections 10(b), 10(c) or
10(d), you shall notify the Company and the Selling Stockholders by telephone or
telegram, confirmed by letter.
11. COSTS AND EXPENSES. The Company and the Selling Stockholders, whether
or not the transactions contemplated hereby are consummated or this Agreement is
prevented from becoming effective under Section 10 hereof or is terminated, will
bear and pay the costs and expenses incident to the registration of the Shares
and public offering thereof, proportionately to the number of Shares sold
hereunder, including, without limitation, (a) all expenses (including stock
transfer taxes) incurred in connection with the delivery to the several
Underwriters of the Shares, the filing fees of the SEC, the fees and expenses of
the Company's counsel and accountants and the fees and expenses of counsel for
the Company, (b) the preparation, printing, filing, delivery and shipping of the
Registration Statement, each Preliminary Prospectus, the
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Prospectus and any amendments or supplements thereto (except as otherwise
expressly provided in Section 5(d) hereof) and the printing, delivery and
shipping of this Agreement and other underwriting documents, including the
Agreement Among Underwriters, the Selected Dealer Agreement, Underwriters'
Questionnaires and Powers of Attorney and Blue Sky Memoranda, and any
instruments or documents related to any of the foregoing, (c) the furnishing of
copies of such documents (except as otherwise expressly provided in Section 5(d)
hereof) to the Underwriters, (d) the registration or qualification of the Shares
for offering and sale under the securities laws of the various states and other
jurisdictions, including the fees and disbursements of counsel to the
Underwriters relating to such registration or qualification and in connection
with preparing any Blue Sky Memoranda or related analysis, (e) the filing fees
of the NASD (if any) and fees and disbursements of counsel to the Underwriters
relating to any review of the offering by the NASD, (f) all printing and
engraving costs related to preparation of the certificates for the Shares,
including transfer agent and registrar fees, (g) all fees and expenses relating
to the authorization of the Shares for trading on The Nasdaq National Market,
(h) all travel expenses, including air fare and accommodation expenses, of
representatives of the Company in connection with the offering of the Shares,
and (i) all of the other costs and expenses incident to the performance by the
Company of the registration and offering of the Shares; provided, that each
Selling Stockholder, will pay or cause to be paid all costs and expenses
incident to the performance of such Selling Stockholder's obligations hereunder
which are not otherwise specifically provided for in this Section; including (i)
any fees and expenses of counsel for such Selling Stockholder, (ii) such Selling
Stockholder's pro rata share of the fees and expenses of the Attorneys-in-Fact
and the Custodian, and (iii) all expenses (including stock transfer taxes)
incident to the sale and delivery of the Shares to be sold by such Selling
Stockholder to the Underwriters hereunder; provided further, that the
Underwriters will bear and pay the fees and expenses of the Underwriters'
counsel (except as provided in this Section 11), the Underwriters' out of pocket
expenses, and any advertising costs and expenses incurred by the Underwriters
incident to the public offering of the Shares.
If this Agreement is terminated by you in accordance with the provisions of
Section 10(c), the Company and Elex N.V. pro rata (based on the number of Shares
to be sold by the Company and Elex N.V. hereunder) shall reimburse the
Underwriters for all of their out of pocket expenses, including the fees and
disbursements of counsel to the Underwriters.
12. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Director, Corporate Finance,
facsimile number [(314) ___-____], with a copy to ___________________,
Attention: General Counsel, facsimile number [(314) ___-____] , or if sent to
the Company shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed to the Company at Catalyst Semiconductor, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇, facsimile
number (▇▇▇) ▇▇▇-▇▇▇▇, or if sent to any Selling Stockholder shall be mailed,
delivered, sent by facsimile transmission or telegraphed and confirmed to such
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Selling Stockholder, c/o the ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇ III at (▇▇▇) ▇▇▇-▇▇▇▇.
Notice to any Underwriter pursuant to Section 7 shall be mailed, delivered, sent
by facsimile transmission, or telegraphed and confirmed to such Underwriter's
address as it appears in the Underwriters' Questionnaire furnished in connection
with the offering of the Shares or as otherwise furnished to the Company and the
Selling Stockholder.
13. INFORMATION FURNISHED BY UNDERWRITERS. The statements set forth in the
tenth and eleventh paragraphs under the caption "Underwriting" in the Prospectus
constitute the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Section 4(a)(ii) and Section 7
hereof.
14. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company, the Selling Stockholders and, to the extent
provided in Sections 7 and 8, the officers and directors of the Company and each
person who controls the Company, any Selling Stockholder or any Underwriter and
their respective heirs, executors, administrators, successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, corporation or other entity any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns and said controlling persons
and said officers and directors, and for the benefit of no other person,
corporation or other entity. No purchaser of any of the Shares from any
Underwriter shall be construed a successor or assign by reason merely of such
purchase.
In all dealings hereunder, you shall act on behalf of each of the several
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by you jointly or by ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. on behalf of you as the
representatives, as if the same shall have been made or given in writing by the
Underwriters; and in all dealings with any Selling Stockholders hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
15. COUNTERPARTS. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
16. PRONOUNS. Whenever a pronoun of any gender or number is used herein,
it shall, where appropriate, be deemed to include any other gender and number.
17. TIME OF ESSENCE. Time shall be of the essence of this Agreement.
18. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
choice of law or conflict of laws principles thereof.
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If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company, each of the Selling
Stockholders and the Underwriters.
By:
---------------------------------------------
Title:
------------------------------------------
Selling Stockholders Named in Schedule I Hereto
By:
---------------------------------------------
Attorney-in-Fact
Accepted in St. Louis, Missouri as of the date first above written, on behalf of
ourselves and each of the several Underwriters named in Schedule II hereto.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇ & COMPANY, INC.
▇.▇. ▇▇▇▇▇▇▇▇▇, TOWBIN LLC
As Representatives of the Several
Underwriters named on Schedule II hereto
By: ▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By:
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Title:
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