EXHIBIT 1.1
Autodesk, Inc.
Common Stock, par value $0.01
______________
Underwriting Agreement
----------------------
March ___, 1999
Xxxxxxx, Xxxxx & Co.,
Xxxxx Xxxxxxx Inc.,
BancBoston Xxxxxxxxx Xxxxxxxx Inc.,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Autodesk, Inc. a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 3,000,000 shares
(the "Firm Shares") and, at the election of the Underwriters, up to 450,000
additional shares (the "Optional Shares") of common stock, par value $0.01 per
share ("Stock") of the Company (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof being collectively
called the "Shares").
The Company has entered into the Second Amended and Restated Agreement and
Plan of Acquisition and Amalgamation dated as of November 18, 1998 (the
"Amalgamation Agreement") by and among the Company, 0000-0000 Xxxxxx Inc.
("Amalgamation Sub"), 0000-0000 Xxxxxx Inc. ("Autodesk Quebec"), Autodesk Canada
Inc. ("ACI"), Autodesk Development B.V., a wholly-owned subsidiary of the
Company ("Dutchco", and together with Amalgamation Sub, Autodesk Quebec and ACI,
the "Autodesk Entities") and Discreet Logic Inc. ("Discreet"), which provides
for an amalgamation under the laws of the Canadian province of Quebec of
Discreet with Autodesk Quebec and Amalgamation Sub (the "Amalgamation") to form
a new corporation which will be a subsidiary of Dutchco. The Company has
advised the Underwriters that the primary purpose of the sale of the Shares is
to facilitate the treatment of the Amalgamation as a pooling of interests. In
connection with the Amalgamation, the Company has filed a Registration Statement
on Form S-4 (No. 333-65075), including the Joint Proxy Statement/Prospectus
contained therein (the "Amalgamation Registration Statement"), which is
incorporated by reference in the Registration Statement and Prospectus relating
to the Shares.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-....) (the "Initial Registration Statement") and
Amendment No. 1 in respect of the Shares have been
filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and,
excluding exhibits thereto but including all
documents incorporated by reference in the
prospectus contained therein, to you for each of the
other Underwriters, have been declared effective by
the Commission in such form; other than a
registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"),
which became effective upon filing, no other
document with respect to the Initial Registration
Statement or document incorporated by reference
therein has heretofore been filed with the
Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any
preliminary prospectus included in the Initial
Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations
of the Commission under the Act is hereinafter
called a "Preliminary Prospectus"; the various parts
of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information
contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was
declared effective and (ii) the documents
incorporated by reference in the prospectus
contained in the Initial Registration Statement at
the time such part of the Initial Registration
Statement became effective, each as amended at the
time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively
called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the
"Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents
incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case
may be; and any reference to any amendment or
supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include
any documents filed after the date of
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such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration
Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement
that is incorporated by reference in the
Registration Statement);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the
time of filing thereof, conformed in all material
respects to the requirements of the Act and the
rules and regulations of the Commission thereunder,
and did not 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, in the light of the
circumstances under which they were made, not
misleading; provided, however, that this
representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Xxxxx
& Co. expressly for use therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed
in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder,
and none of such documents 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; and any further documents so filed and
incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such
documents become effective or are filed with the
Commission, as the case may be, will conform in all
material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will
not 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; provided, however, that this
representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Sachs
& Co. expressly for use therein;
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(d) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus will
conform, in all material respects to the
requirements of the Act and the rules and
regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as
to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to
the Prospectus and any amendment or supplement
thereto, 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; provided, however, that this
representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Xxxxx
& Co. expressly for use therein;
(e) 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 or contemplated in the Prospectus; and,
since the respective dates as of which information
is given in the Registration Statement and the
Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or
any of its subsidiaries or any material adverse
change, or any development involving 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, otherwise than as set
forth or contemplated in the Prospectus;
(f) The Company and its subsidiaries have good and
marketable title in fee simple to all real property
and good and marketable title to all personal
property owned by them, in each case free and clear
of all liens, encumbrances and defects except such
as are described in the Prospectus or such as 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 by the Company and its
subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and
enforceable leases with such exceptions as are not
material and do not interfere with the use made and
proposed to be made of such property and buildings
by the Company and its subsidiaries;
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(g) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of Delaware, with power and authority
(corporate and other) to own its properties and
conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation
for the transaction of business and is in good
standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts
any business so as to require such qualification, or
is subject to no material liability or disability by
reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation;
(h) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued
shares of capital stock of the Company have been
duly and validly authorized and issued, are fully
paid and non-assessable and conform to the
description of the Stock incorporated by reference
in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have
been duly and validly authorized and issued, are
fully paid and non-assessable and (except for
directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(i) The unissued Shares to be issued and sold by the
Company to the Underwriters hereunder have been duly
and validly authorized and, when issued and
delivered against payment therefor as provided
herein, will be duly and validly issued and fully
paid and non-assessable and will conform to the
description of the Stock incorporated by reference
in the Prospectus;
(j) The issue and sale of the Shares by the Company
and the compliance by the Company with all of the
provisions 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, 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 property or assets of the Company or any of its
subsidiaries is subject, nor will such action result
in any violation of the provisions of the
Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or
regulation of any court or governmental agency or
body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no
consent,
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approval, authorization, order, registration or
qualification of or with any such court or
governmental agency or body is required for the
issue and sale of the Shares or the consummation by
the Company of the transactions contemplated by this
Agreement, except the registration under the Act of
the Shares 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;
(k) Neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation
or By-laws or 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 it is a party
or by which it or any of its properties may be
bound;
(l) The statements incorporated by reference into
the Prospectus from the Company's Registration
Statement on Form 8-A under the caption "Description
of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and
under the caption "Underwriting", insofar as they
purport to describe the provisions of the laws and
documents referred to therein, are accurate,
complete and fair;
(m) 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 which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or
future consolidated financial position,
stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of
the Company's knowledge, no such proceedings are
threatened or contemplated by governmental
authorities or threatened by others;
(n) The Company is not and, after giving effect to
the offering and sale of the Shares, will not be an
"investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the
"Investment Company Act");
(o) Neither the Company nor any of its affiliates
does business with the government of Cuba or with
any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes;
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(p) Ernst & Young LLP, who have certified certain
financial statements of the Company and its
subsidiaries, and Xxxxxx Xxxxxxxx & Cle, who have
certified certain financial statements of Discreet,
are each independent public accountants as required
by the Act and the rules and regulations of the
Commission thereunder;
(q) The Company has reviewed its operations and
that of its subsidiaries and any third parties with
which the Company or any of its subsidiaries has a
material relationship to evaluate the extent to
which the business or operations of the Company or
any of its subsidiaries will be affected by the
Year 2000 Problem. As a result of such review, the
Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a
material adverse effect on the general affairs,
management, the current or future consolidated
financial position, business prospects,
stockholders' equity or results of operations of
the Company and its subsidiaries or result in any
material loss or interference with the Company's
business or operations. The "Year 2000 Problem" as
used herein means any significant risk that
computer hardware or software used in the receipt,
transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of
data or in the operation of mechanical or
electrical systems of any kind will not, in the
case of dates or time periods occurring after
December 31, 1999, function at least as effectively
as in the case of dates or time periods occurring
prior to January 1, 2000;
(r) Except as disclosed in the Prospectus, as
amended, the Company and its subsidiaries own, or
are licensed or otherwise possess legally
enforceable rights to use, sell and license,
without any conflict the rights of others, all
trademarks, tradenames, service marks, copyrights
and any applications therefor necessary to, used in
or required for their respective businesses as
currently conducted, the absence of which would be
reasonably likely to have a material adverse effect
on the Company;
(s) The Amalgamation Agreement has been duly authorized, executed and
delivered by the Company and the Autodesk Entities, and constitutes a valid and
binding agreement of each of them; the Company and the Autodesk Entities have no
current intent (and have no knowledge of any current intent on the part of
Discreet) to terminate the Amalgamation Agreement or otherwise not to consummate
the transactions contemplated thereby; and the Company, the Autodesk Entities
and to the best knowledge of the Company, Discreet, are not in breach or
violation in any material respect of any of their respective representations,
warranties or any covenants or agreement on each of their parts to be performed
under the Amalgamation Agreement; and
(t) The Amalgamation Agreement has been duly authorized by all necessary
corporate action of the Company and the Autodesk Entities and, when all of the
conditions to the Amalgamation contained in the Amalgamation Agreement have been
fulfilled or waived (where
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permissible) and the Articles of Amalgamation are filed pursuant to Section
123.118 of the Companies Act (Quebec), the Amalgamation will be effective in
accordance with the laws of the state of Delaware and the laws of the Canadian
province of Quebec.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at a purchase price per share of $................, the
number of Firm Shares set forth opposite the name of such Underwriter
in Schedule I hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share
set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares) determined
by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are
entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at their
election up to 450,000 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering overallotments in
the sale of the Firm Shares. Any such election to purchase Optional Shares may
be exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement, setting forth the
aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless you and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
4. The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Xxxxxxx, Sachs & Co. may request upon at least forty-
eight hours' prior notice to the Company shall be delivered by or on
behalf of the Company to Xxxxxxx, Xxxxx & Co., through the facilities
of the Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to
the account specified by the Company to Xxxxxxx, Sachs & Co. at least
forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging
at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery
and payment shall be, with respect to the Firm Shares, 7:00 a.m., Palo
Alto time, on March ___, 1999 or such other time and date as Xxxxxxx,
Sachs & Co. and the Company may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York time, on the date
specified by Xxxxxxx, Xxxxx & Co. in the written notice given by
Xxxxxxx, Sachs & Co. of the Underwriters' election to purchase such
Optional Shares, or such other time and date as Xxxxxxx, Xxxxx & Co.
and the Company may agree upon in writing. Such time and date
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for delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a
"Time of Delivery".
(a) The documents to be delivered at each Time of
Delivery by or on behalf of the parties hereto
pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section
7(j) hereof, will be delivered at the offices of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000-0000 (the "Closing
Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A
meeting will be held at the Closing Location at 3:00
p.m., Palo Alto time, on the New York Business Day
next preceding such Time of Delivery, at which
meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking
institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by
you and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's
close of business on the second business day
following the execution and delivery of this
Agreement, or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Act; to
make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the
last Time of Delivery which shall be disapproved by
you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice
thereof, of the time when any amendment to the
Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you
with copies thereof; to file promptly all reports
and any definitive proxy or information statements
9
required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a
prospectus is required in connection with the
offering or sale of the Shares; to advise you,
promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of
any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission
for the amending or supplementing of the
Registration Statement or Prospectus or for
additional information; and, in the event of the
issuance of any stop order or of any order
preventing or suspending the use of any Preliminary
Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as
you may reasonably request to qualify the Shares for
offering and sale under the securities laws of such
jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as
long as may be necessary to complete the
distribution of the Shares, provided that in
connection therewith the Company shall not be
required to qualify as a foreign corporation or to
file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New
York Business Day next succeeding the date of this
Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New
York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares
and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or
supplemented would
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include an untrue statement of a material fact or
omit to state any material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such
period to amend or supplement the Prospectus or to
file under the Exchange Act any document
incorporated by reference in the Prospectus in order
to comply with the Act or the Exchange Act, to
notify you and upon your request to file such
document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities
as many copies as you may from time to time
reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and
in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the
Shares at any time nine months or more after the
time of issue of the Prospectus, upon your request
but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many copies as
you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the
Act;
(d) To make generally available to its
securityholders as soon as practicable, but in any
event not later than eighteen months after the
effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of
the Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof
and continuing to and including the date 90 days
after the date of the Prospectus, not to offer,
sell, contract to sell or otherwise dispose of,
except as provided hereunder any securities of the
Company that are substantially similar to the
Shares, including but not limited to any securities
that are convertible into or exchangeable for, or
that represent the right to receive, Stock or any
such substantially similar securities (other than
pursuant to employee stock option plans existing on,
or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date
of this Agreement, or in connection with mergers,
consolidations or other business combinations in
which the Company may be involved), without your
prior written consent;
(f) To furnish to its stockholders as soon as
practicable after the end of each fiscal year an
annual report (including a balance sheet and
statements of income, stockholders' equity and cash
flows of the Company and its consolidated
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subsidiaries certified by independent public
accountants) and, as soon as practicable after the
end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration
Statement), to make available to its stockholders
consolidated summary financial information of the
Company and its subsidiaries for such quarter in
reasonable detail;
(g) During a period of five years from the effective
date of the Registration Statement, to furnish to
you copies of all reports or other communications
(financial or other) furnished to stockholders, and
to deliver to you (i) as soon as they are available,
copies of any reports and financial statements
furnished to or filed with the Commission or any
national securities exchange on which any class of
securities of the Company is listed; and (ii) such
additional information concerning the business and
financial condition of the Company as you may from
time to time reasonably request (such financial
statements to be on a consolidated basis to the
extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the
sale of the Shares pursuant to this Agreement in the
manner specified in the Prospectus under the caption
"Use of Proceeds";
(i) To use its best efforts to list for quotation
the Shares on the National Association of Securities
Dealers Automated Quotations National Market System
("NASDAQ");
(j) If the Company elects to rely upon Rule 462(b),
the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement, and the Company shall at
the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under
the Act; and
(k) To refrain from, and refrain any of its subsidiaries from,
knowingly and after consultation with Ernst & Young LLP, taking any action which
would prevent the Amalgamation from qualifying, or omit to take any action
necessary to qualify the Amalgamation, as a pooling of interests transaction or
that would otherwise prevent Ernst & Young LLP from issuing the letter described
in Section 5.15(b) of the Amalgamation Agreement; and if the Amalgamation is
consummated and qualifies as a pooling of interests, the Company will account
for the Amalgamation as a pooling of interests.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the
12
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey (iv) all fees and expenses in connection with listing the Shares
on the NASDAQ; (v) the filing fees incident to, and the fees and disbursements
of counsel for the Underwriters in connection with, securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by
the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company
has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or
any part thereof shall have been issued and no
proceeding for that purpose shall have been
initiated or threatened by the Commission; and all
requests for additional information on the part of
the Commission shall have been complied with to your
reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such
written opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated
such Time of Delivery, with respect to the matters
covered in paragraphs (i), (ii), (vii), (xi) and
(xiv) of subsection (c) below as well as such other
related matters as you may reasonably request, and
such counsel shall have
13
received such papers and information as they may
reasonably request to enable them to pass upon such
matters;
(c) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for
the Company, shall have furnished to you their
written opinion (a draft of such opinion is attached
as Annex II(b) hereto), dated such Time of Delivery,
in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in
good standing under the laws of Delaware, with
power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus,
and all of the issued shares of capital stock
of the Company (including the Shares being
delivered at such Time of Delivery) have been
duly and validly authorized and issued and are
fully paid and non-assessable; and the Shares
conform to the description of the Stock
incorporated by reference in the Prospectus;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of
business and is in good standing under the laws
of each other jurisdiction in which it owns or
leases properties or conducts any business so
as to require such qualification or is subject
to no material liability or disability by
reason of failure to be so qualified in any
such jurisdiction (such counsel being entitled
to rely in respect of the opinion in this
clause upon opinions of local counsel and in
respect of matters of fact upon certificates of
officers of the Company, provided that such
counsel shall state that they believe that both
you and they are justified in relying upon such
opinions and certificates);
(iv) Each subsidiary of the Company has been
duly incorporated and is validly existing as a
corporation in good standing under the laws of
its jurisdiction of incorporation; and all of
the issued shares of capital stock of each such
subsidiary have been duly and validly
authorized and issued, are fully paid and non-
assessable, and (except for directors'
qualifying shares) are owned directly or
indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect
of the opinion in this
14
clause upon opinions of local counsel and in
respect to matters of fact upon certificates of
officers of the Company or its subsidiaries,
provided that such counsel shall state that
they believe that both you and they are
justified in relying upon such opinions and
certificates);
(v) The Company and its subsidiaries have
good and marketable title in fee simple to all
real property owned by them, in each case free
and clear of all liens, encumbrances and
defects except such as are described in the
Prospectus or such as 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 by the Company and its
subsidiaries; and any real property and
buildings held under lease by the Company and
its subsidiaries are held by them under valid,
subsisting and enforceable leases with such
exceptions as are not material and do not
interfere with the use made and proposed to be
made of such property and buildings by the
Company and its subsidiaries (in giving the
opinion in this clause, such counsel may state
that no examination of record titles for the
purpose of such opinion has been made, and that
they are relying upon a general review of the
titles of the Company and its subsidiaries,
upon opinions of local counsel and abstracts,
reports and policies of title companies
rendered or issued at or subsequent to the time
of acquisition of such property by the Company
or its subsidiaries, upon opinions of counsel
to the lessors of such property and, in respect
to matters of fact, upon certificates of
officers of the Company or its subsidiaries,
provided that such counsel shall state that
they believe that both you and they are
justified in relying upon such opinions,
abstracts, reports, policies and certificates);
(vi) To the best of such counsel's knowledge
and 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 which, if
determined adversely to the Company or any of
its subsidiaries, would individually or in the
aggregate have a material adverse effect on the
current or future consolidated financial
position, stockholders' equity or results of
operations of the Company and its subsidiaries;
and, to the best of such counsel's knowledge,
no such proceedings are threatened or
contemplated by governmental authorities or
threatened by others;
15
(vii) This Agreement has been duly authorized,
executed and delivered by the Company;
(viii) The issue and sale of the Shares being
delivered at such Time of Delivery by the
Company and the compliance by the Company with
all of the provisions 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,
any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument
known to such counsel 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 property or assets of
the Company or any of its subsidiaries is
subject, nor will such action result in any
violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or
any statute or any order, rule or regulation
known to such counsel of any court or
governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or
any of their properties;
(ix) No consent, approval, authorization,
order, registration or qualification of or with
any such court or governmental agency or body
is required for the issue and sale of the
Shares or the consummation by the Company of
the transactions contemplated by this
Agreement, except the registration under the
Act of the Shares, 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;
(x) Neither the Company nor any of its
subsidiaries is in violation of its Certificate
of Incorporation or By-laws or 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 it is a party or by
which it or any of its properties may be bound;
(xi) The statements incorporated by reference
into the Prospectus from the Company's
Registration Statement on Form 8-A under the
caption "Description of Capital Stock", insofar
as they purport to constitute a summary of the
terms of the Stock,
16
and under the caption "Underwriting", insofar
as they purport to describe the provisions of
the laws and documents referred to therein, are
accurate, complete and fair;
(xii) The Company is not an "investment
company", as such term is defined in the
Investment Company Act;
(xiii) The documents incorporated by reference
in the Prospectus or any further amendment or
supplement thereto made by the Company prior to
such Time of Delivery (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion),
when they became effective or were filed with
the Commission, as the case may be, complied as
to form in all material respects with the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of
the Commission thereunder; and they have no
reason to believe that any of such documents,
when such documents became effective or were so
filed, as the case may be, contained, in the
case of a registration statement which became
effective under the Act, an untrue statement of
a material fact or omitted to state a material
fact required to be stated therein or necessary
to make the statements therein not misleading,
or, in the case of other documents which were
filed under the Exchange Act with the
Commission, an untrue statement of a material
fact or omitted to state a material fact
necessary in order to make the statements
therein, in the light of the circumstances
under which they were made when such documents
were so filed, not misleading;
(xiv) The Registration Statement and the
Prospectus and any further amendments and
supplements thereto made by the Company prior
to such Time of Delivery (other than the
financial statements and related schedules
therein, as to which such counsel need express
no opinion) comply as to form in all material
respects with the requirements of the Act and
the rules and regulations thereunder; although
they do not assume any responsibility for the
accuracy, completeness or fairness of the
statements contained in the Registration
Statement or the Prospectus, except for those
referred to in the opinion in subsection (xi)
of this section 7(c), they have no reason to
believe that, as of its effective date, the
Registration Statement or any further amendment
17
thereto made by the Company prior to such Time
of Delivery (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion)
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, as of its date, the Prospectus or any
further amendment or supplement thereto made by
the Company prior to such Time of Delivery
(other than the financial statements and
related schedules therein, as to which such
counsel need express no opinion) contained an
untrue statement of a material fact or omitted
to state a material fact necessary to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading or that, as of such Time of
Delivery, either the Registration Statement or
the Prospectus or any further amendment or
supplement thereto made by the Company prior to
such Time of Delivery (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion)
contains an untrue statement of a material fact
or omits to state a material fact necessary to
make the statements therein, in the light of
the circumstances under which they were made,
not misleading; and they do not know of any
amendment to the Registration Statement
required to be filed or of any contracts or
other documents of a character required to be
filed as an exhibit to the Registration
Statement or required to be incorporated by
reference into the Prospectus or required to be
described in the Registration Statement or the
Prospectus which are not filed or incorporated
by reference or described as required;
(xv) The Amalgamation Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid and
binding agreement of the Company; and
(xvi) The Amalgamation has been duly authorized by all necessary
corporate action of the Company;
(d) On the date of the Prospectus at a time prior to
the execution of this Agreement, at 9:30 a.m., New
York City time, on the effective date of any post-
effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and
also at each Time of Delivery, Ernst & Young LLP and
Xxxxxx Xxxxxxxx & Cle shall each have furnished to
you a letter or letters, dated the respective dates
of delivery thereof, in form and substance
satisfactory to you,
18
to the effect set forth in Annex I hereto (the
executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a)
hereto and a draft of the form of letter to be
delivered on the effective date of any post-effective
amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b)
hereto);
(e) (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,
otherwise than as set forth or contemplated in the
Prospectus, and (ii) since the respective dates as of
which information is given in the Prospectus there
shall not have been any change in the capital stock
or long-term debt of the Company or any of its
subsidiaries or any change, or any development
involving a prospective change, in or affecting the
general affairs, management, financial position,
stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect
of which, in any such case described in Clause (i) or
(ii), is in the judgment of the Underwriters so
material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading
shall have occurred in the rating accorded the
Company's debt securities by any "nationally
recognized statistical rating organization", as that
term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it
has under surveillance or review, with possible
negative implications, its rating of any of the
Company's debt securities;
(g) On or after the date hereof 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 on
NASDAQ; (ii) a suspension or material limitation in
trading in the Company's securities on NASDAQ; (iii)
a general moratorium on commercial banking activities
declared by either Federal or New York or California
State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the
declaration by the United States of a national
emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the
Underwriters makes it impracticable or inadvisable to
proceed
19
with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on
the terms and in the manner contemplated in the
Prospectus;
(h) The Shares to be sold at such Time of Delivery
shall have been duly listed for quotation on NASDAQ;
(i) The Company shall have complied with the
provisions of Section 5(c) hereof with respect to the
furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement;
(j) The Company shall have furnished or caused to be
furnished to you at such Time of Delivery
certificates of officers of the Company satisfactory
to you as to the accuracy of the representations and
warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as you may
reasonably request;
(k) Prior to the issuance and sale by the Company and the purchase by
the Underwriters of the Shares, the Amalgamation Agreement and the
Amalgamation shall have been approved and adopted by the affirmative
requisite vote of the shareholders of Discreet, and the Parent Stock
Issuance (as defined in the Amalgamation Agreement) shall have been
approved and adopted by the affirmative requisite vote of the stockholders
of the Company; no termination of the Amalgamation Agreement or failure of
any condition to the consummation of the Amalgamation shall have occurred
or, to the knowledge of the Company and Discreet, is expected to occur; and
no event shall have occurred or, to the knowledge of the Company and
Discreet, has occurred or is expected to occur that would permit
termination of the Amalgamation Agreement and abandonment of the
Amalgamation pursuant to Section 7.1 thereof; and
(l) No stop order suspending the effectiveness of the Amalgamation
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been threatened or initiated by the
Commission.
8. The Company will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made
20
in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein.
The Company further agrees to indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Securities Act of 1933, as
amended or otherwise, insofar as such losses, claims damages or liabilities (or
actions in respect thereof) arise out of or are based upon the failure of any
person which is a stockholder of the Company or Discreet and to whom any
communication is made in connection with the offering of the Shares, which
communication may be deemed a "solicitation" of a "proxy" (each as defined in
Regulation 14A under the Securities Exchange Act of 1934, as amended), to have
first been supplied with a proxy statement meeting the requirements of Schedule
14A, as required by the applicable rules and regulations of the Securities and
Exchange Commission.
(a) Each Underwriter will indemnify and hold
harmless the Company against any losses,
claims, damages or liabilities to which the
Company may become subject, under the Act or
otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect
thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of
a material fact contained in any Preliminary
Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, in each case to the extent, but
only to the extent, that such untrue statement
or alleged untrue statement or omission or
alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement
in reliance upon and in conformity with written
information furnished to the Company by such
Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein; and will reimburse
the Company for any legal or other expenses
reasonably incurred by the Company in
connection with investigating or defending any
such action or claim as such expenses are
incurred.
(b) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of
notice of the commencement of any action, such
indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying
party under such subsection, notify the
indemnifying party in writing of the
commencement thereof; but the omission so to
notify the indemnifying party shall not relieve
it from any liability which it may have to any
indemnified party otherwise than under such
subsection. In case any such action shall be
brought against any indemnified party and it
shall notify the indemnifying party of the
commencement thereof, the
21
indemnifying party shall be entitled to
participate therein and, to the extent that it
shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense
thereof, with counsel satisfactory to such
indemnified party (who shall not, except with
the consent of the indemnified party, be
counsel to the indemnifying party), and, after
notice from the indemnifying party to such
indemnified party of its election so to assume
the defense thereof, the indemnifying party
shall not be liable to such indemnified party
under such subsection 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.
No indemnifying party shall, without the
written consent of the 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 the indemnified party is an actual or
potential party to such action or claim) unless
such settlement, compromise or judgment (i)
includes an unconditional release of the
indemnified party from all liability arising
out of such action or claim and (ii) does not
include a statement as to or an admission of
fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(c) If the indemnification provided for in
this Section 8 is unavailable to or
insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in
respect of any losses, claims, damages or
liabilities (or actions in respect thereof)
referred to therein, then each indemnifying
party shall contribute to the amount paid or
payable by such indemnified party as a result
of such losses, claims, damages or liabilities
(or actions in respect thereof) in such
proportion as is appropriate to reflect the
relative benefits received by the Company on
the one hand and the Underwriters on the other
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
subsection (c) above, then each 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 of the Company on the one hand
and the Underwriters on the other in connection
with the statements or omissions which resulted
in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any
other relevant equitable considerations. The
relative benefits received by the Company on
the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as
the total net proceeds from the offering
(before
22
deducting expenses) received by the Company
bear to the total underwriting discounts and
commissions received by the Underwriters, in
each case as set forth in the table on the
cover page of the Prospectus. The relative
fault shall be determined by reference to,
among other things, whether the untrue or
alleged untrue statement of a material fact or
the omission or alleged omission to state a
material fact relates to information supplied
by the Company on the one hand or the
Underwriters on the other and the parties'
relative intent, knowledge, access to
information and opportunity to correct or
prevent such statement or omission. The Company
and the Underwriters agree that it would not be
just and equitable if contributions pursuant to
this subsection (d) were determined by pro rata
allocation (even if the Underwriters were
treated as one entity for such purpose) or by
any other method of allocation which does not
take account of the equitable considerations
referred to above in this subsection (d). The
amount paid or payable by an indemnified party
as a result of the losses, claims, damages or
liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall
be deemed to include any legal or other
expenses reasonably incurred by such
indemnified party in connection with
investigating or defending any such action or
claim. Notwithstanding the provisions of this
subsection (d), 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 which such
Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue
statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The Underwriters'
obligations in this subsection (d) to
contribute are several in proportion to their
respective underwriting obligations and not
joint.
(d) The obligations of the Company under this
Section 8 shall be in addition to any liability
which the Company may otherwise have and shall
extend, upon the same terms and conditions, to
each person, if any, who controls any
Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this
Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise
have and shall extend, upon the same terms and
conditions, to each officer and director of the
Company (including any person who, with his or
her consent, is named in the Registration
Statement as about to become a director of the
Company) and to each person, if any, who
controls the Company within the meaning of the
Act.
23
9. If any Underwriter shall default in its obligation to purchase the Shares
which it has agreed to purchase hereunder at a Time of Delivery, 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 shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Shares, or the Company
notifies you that it has so arranged for the purchase of such Shares, you or
the Company shall have the right to postpone such Time of Delivery 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 person substituted under this
Section with like effect as if such person had originally been a party to
this Agreement with respect to such Shares.
(a) If, after giving effect to any
arrangements for the purchase of the Shares of
a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a)
above, the aggregate number of such Shares
which remains unpurchased does not exceed one-
eleventh of the aggregate number of all the
Shares to be purchased at such Time of
Delivery, then the Company shall have the right
to require each non-defaulting Underwriter to
purchase the number of shares which such
Underwriter agreed to purchase hereunder at
such Time of Delivery 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.
(b) If, after giving effect to any
arrangements for the purchase of the Shares of
a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a)
above, the aggregate number of such Shares
which remains unpurchased exceeds one-eleventh
of the aggregate number of all the Shares to be
purchased at such Time of Delivery, or if the
Company shall not exercise the right described
in subsection (b) above to require non-
defaulting Underwriters to purchase Shares of a
defaulting Underwriter or Underwriters, then
this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to
sell the Optional Shares) shall thereupon
terminate, without liability on the part of any
non-defaulting Underwriter or the Company,
except for the expenses to be borne by the
Company and the Underwriters as provided in
24
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain 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, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.(9)
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on your behalf.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you in care of Xxxxxxx, Sachs & Co., 00 Xxx Xxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if to
the Company shall be delivered or sent by mail to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. 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.
25
If the foregoing is in accordance with your understanding, please sign and
return to us 6 counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
Autodesk, Inc.
By:
------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxx Xxxxxxx Inc.
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
By: ___________________________________
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
26
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- ---------------- ------------------
Xxxxxxx, Xxxxx & Co ................
Xxxxx Xxxxxxx Inc...................
BancBoston Xxxxxxxxx Xxxxxxxx Inc...
--------- -------
Total......................... 3,000,000 450,000
========= =======
ANNEX I
FORM OF ANNEX I DESCRIPTION OF COMFORT LETTER
FOR REGISTRATION STATEMENTS ON FORMS S-2 AND S-3
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been [separately] furnished to the representatives of the
Underwriters (the "Representatives") [and are attached hereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their reports
thereon copies of which [have been separately furnished to the
Representatives][are attached hereto]; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in the related in all material
respects with the applicable accounting requirements of the [Act and the
Exchange] Act and the related published rules and regulations, nothing came
to their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the [Act and the
Exchange] Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated
financial statements for such five fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
2
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
3
