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EVERCEL, INC.
SHARES(1)
Common Stock
($0.01 par value per share)
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Underwriting Agreement
April [__], 2000
Xxxxx, Xxxxxxxx & Xxxx, Inc.
FAC/Equities
Xxxxxxx Securities, Inc.
As representatives of the several
Underwriters named in Schedule I hereto,
x/x Xxxxx, Xxxxxxxx & Xxxx, Xxx.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
Evercel, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to you and
the several Underwriters named in Schedule I hereto (collectively, the
"Underwriters"), for whom you are acting as representatives (the
"Representatives") an aggregate of shares (the "Company Firm Shares")
of the Company's Common Stock, $0.01 par value per share (the "Common Stock")
and, at the election of the Underwriters, up to [________] additional shares
(the "Company Optional Shares") of Common Stock, and the shareholders listed on
Schedule II hereto (the "Selling Shareholders"), propose, subject to the terms
and conditions stated herein, to sell to the Underwriters an aggregate of
[________] shares of Common Stock in the amounts set forth opposite each Selling
Shareholder's name on Schedule II (the "Selling Shareholders' Firm Shares," and
together with the Company Firm Shares, the "Firm Shares") of Common Stock. The
Firm Shares and any Company Optional Shares that the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"Shares."
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
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(1) Includes shares subject to an option to purchase additional
shares to cover over-allotments.
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(a) A registration statement on Form S-3 (File No. 333-33090) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement including any pre-effective amendments thereto and any
post-effective amendment thereto, each in the form heretofore delivered to you,
and, excluding exhibits thereto, 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 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 any Rule 462(b) Registration Statement has been issued and
no proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission (any preliminary prospectus, included in
the Initial Registration Statement and incorporated by reference in any Rule
462(b) 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 any Rule 462(b) Registration Statement, including all
exhibits thereto, including any exhibits incorporated by reference in any Rule
462(b) Registration Statement, and including 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 6(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 or any Rule 462(b) Registration Statement at the time it
became effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus");
(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 you expressly for use therein. The Company acknowledges that
the statements set forth under the heading "Underwriting" in the Prospectus
constitute the only information relating to any Underwriter furnished in writing
to the Company by the Representative specifically for inclusion in the
Registration Statement;
(c) 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, in the light
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of the circumstances under which they were made, not misleading; and, as of each
Time of Delivery (as hereinafter defined), neither the Registration Statement
nor the Prospectus nor any further amendment or supplement thereto made by the
Company prior to such Time of Delivery contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, provided, however, that these representations and warranties 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
you expressly for use therein;
(d) There are not contracts or other documents required to be described
in the Registration Statement or to be filed as exhibits to the Registration
Statement by the Act or by the rules and regulations of the Commission
thereunder which have not been described or filed as required; the contracts so
described in the Prospectus to which the Company or any of its subsidiaries is a
party have been duly authorized, executed and delivered by the Company or its
subsidiaries, constitute valid and binding agreements of the Company or its
subsidiaries and are enforceable against and by the Company or its subsidiaries
in accordance with their respective terms, and are in full force and effect on
the date hereof; and neither the Company nor any of its subsidiaries, nor, to
the best of the Company's knowledge, any other party is in breach of or default
under any of such contracts;
(e) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included 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 (excluding grants of stock
options under the Company's 1998 Equity Incentive Plan which in any event have
not exceeded the unallocated reserve for such plan as described in the
Prospectus) 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 business, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Change"), otherwise than as
set forth or contemplated in the Prospectus;
(f) The Company and each of its subsidiaries has good and marketable
title, free and clear of all liens, claims, encumbrances and restrictions except
liens for taxes not yet due and payable, to all property and assets described in
the Registration Statement as being owned by it. Except as disclosed in the
Prospectus and the financial statements of the Company, and the related notes
thereto, included in the Prospectus, neither the Company nor any subsidiary of
the Company owns any real property; any real property and buildings held under
lease by the Company are held by it 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; the Company owns or leases all such properties as are
necessary to its operations as now conducted, except where the failure to so own
or lease would not result in a Material Adverse Change;
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(g) Each of the Company and its subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation, each with full power and authority
(corporate and otherwise) to own its properties and conduct its business as
described in the Prospectus, and each 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 its 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;
(h) The Company has an authorized capitalization as set forth under the
heading "Capitalization" in the Prospectus, and all the issued shares of capital
stock of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable, were not issued in violation of or subject to any
preemptive rights, registration rights, co-sale rights or other rights to
subscribe for or purchase any securities which have not been waived or satisfied
and conform in all material respects to the description of capital stock
contained in the Prospectus under the heading "Description of Capital Stock";
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 are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims; except as disclosed in or contemplated by the
Prospectus and the financial statements of the Company, and the related notes
thereto, included in the Prospectus, neither the Company nor any subsidiary has
outstanding any options to purchase, or any preemptive rights, registration
rights, co-sale rights or other rights to subscribe for or to purchase any
securities or obligation convertible into, or any contracts or commitments to
issue or sell, shares of its capital stock or any such options, rights,
convertible securities or obligations; and the description of the Company's
stock option and stock purchase plans and the options or other rights granted
and exercised thereunder set forth in the Prospectus accurately and fairly
presents the information required to be shown with respect to such plans,
options and rights;
(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 in all
material respects to the description of the Common Stock contained in the
Prospectus under the heading "Description of Capital Stock"; no preemptive
rights, registration rights, co-sale rights or other rights to subscribe for or
purchase exist with respect to the issuance and sale of the Shares by the
Company or, to the best of the Company's knowledge, the sale of the Selling
Shareholders' Firm Shares by the Selling Shareholders pursuant to this Agreement
which have not been waived or satisfied; no shareholder of the Company has any
right which has not been waived to require the Company to register the sale of
any shares of capital stock owned by such shareholder under the Act in the
public offering contemplated by this Agreement; and no further approval or
authority of the shareholders or the Board of Directors of the Company will be
required for the issuance and sale of the Shares to be sold by the Company or
for the sale of the Shares to be sold by the Selling Shareholders as
contemplated herein;
(j) The Company has full corporate power and authority to enter into
this Agreement; this Agreement has been duly authorized, executed and delivered
by the Company, constitutes a
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valid and binding obligation of the Company and is enforceable against the
Company in accordance with its terms;
(k) The issuance 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 Bylaws 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, 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 or the by-laws and rules of the National Association of Securities
Dealers, Inc. (the "NASD") in connection with the purchase and distribution of
the Shares by the Underwriters;
(l) There are no legal or governmental actions, suits or proceedings
pending or, to the best of the Company's knowledge, threatened to which the
Company or any of its subsidiaries is or may be a party or of which property
owned or leased by the Company or any of its subsidiaries is or may be the
subject, or related to environmental or discrimination matters, which actions,
suits or proceedings, would, if determined adversely to the Company or its
subsidiaries individually or in the aggregate, prevent or adversely affect the
transactions contemplated by this Agreement or result in a Material Adverse
Change; no labor disturbance by the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent which might
be expected to result in a Material Adverse Change, and neither the Company nor
any of its subsidiaries is a party or subject to the provisions of any
injunction, judgment, decree or order of any court, regulatory body,
administrative agency or other governmental body;
(m) The Company and its subsidiaries possess all licenses,
certificates, authorizations or permits issued by the appropriate governmental
or regulatory agencies or authorities that are necessary to enable them to own,
lease and operate their respective properties and to carry on their respective
businesses as presently conducted and which are material to the Company and its
subsidiaries, and neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the aggregate if
the subject of an unfavorable decision, would result in a Material Adverse
Change;
(n) KPMG LLP, who have certified certain financial statements of the
Company, are independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
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(o) The consolidated financial statements and schedules of the Company,
and the related notes thereto, included in the Registration Statement and the
Prospectus present fairly the financial position of the Company and its
subsidiaries as of the respective dates of such financial statements and
schedules, and the results of operations and cash flows of the Company and its
subsidiaries for the respective periods covered thereby; such statements,
schedules and related notes have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis as certified by
KPMG LLP; no other financial statements or schedules are required to be included
in the Registration Statement; and the selected financial data set forth in the
Prospectus under the captions "Summary Financial Data," "Capitalization" and
"Selected Financial Data" fairly present the information set forth therein on
the basis stated in the Registration Statement;
(p) Except as disclosed in or specifically contemplated by the
Prospectus, the Company and its subsidiaries have sufficient trademarks, trade
names, patent rights, copyrights, licenses, approvals and governmental
authorizations to conduct their business as now conducted; the Company has no
knowledge of any material infringement by the Company or any of its subsidiaries
of trademark, trade name rights, patent rights, copyrights, licenses, trade
secret or other similar rights of others; and there is no claim being made
against the Company or any of its subsidiaries regarding trademark, trade name,
patent, copyright, license, trade secret or other infringement;
(q) The Company and each of its subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns and have paid all
taxes shown as due thereon; and the Company has no knowledge of any tax
deficiency which has been or might be asserted or threatened against the Company
or any of its subsidiaries which would reasonably be expected to result in a
Material Adverse Change;
(r) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an investment company,
as such terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(s) Each of the Company and its subsidiaries maintains insurance of the
types and in the amounts which it deems adequate for its business, including,
but not limited to, 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;
(t) Neither the Company nor any of its subsidiaries has at any time
during the last five years (i) made any unlawful contribution to any candidate
for foreign office, or failed to disclose fully any contribution in violation of
law, (ii) made any payment to any foreign, federal or state governmental officer
or official, or other person changed with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof, or (iii) violated any provisions of the Foreign
Corrupt Practices Act of 1977, as amended;
(u) The Company has not taken and will not take, directly or indirectly
through any of its directors, officers or controlling persons, any action which
is designed to or which has constituted
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or which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares;
(v) The Common Stock has been registered pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"); the
Company is not required to take any further action for inclusion of the Shares
on the Nasdaq National Market and has received notification that the listing has
been approved, subject to notice of issuance of the Shares; and the Company has
no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common
Stock from the Nasdaq National Market;
(w) The Company does not know of any claims for services in the nature
of a finder's fee, brokerage fee or otherwise with respect to this offering for
which the Company or any of the Underwriters may be responsible;
(x) The Company has complied with all of the requirements and filed the
required forms as specified in Florida Statutes Section 517.075;
(y) The Company and each of its subsidiaries is conducting its business
in compliance with all the laws, rules and regulations of the jurisdictions in
which it is conducting business. Neither the Company nor any of its subsidiaries
has received any notification of any asserted present or past failure of the
Company or any of its subsidiaries to comply with any such laws, rules or
regulations;
(z) (i) Each of the Company and its Subsidiaries is in compliance in
all material respects with all rules, laws and regulation relating to the use,
treatment, storage and disposal of toxic substances and protection of health or
the environment ("Environmental Law") which are applicable to its business; (ii)
neither the Company nor its Subsidiaries has received any notice from any
governmental authority or third party of an asserted claim under Environmental
Laws; (iii) each of the Company and its Subsidiaries has received all permits,
licenses or other approvals required of it under applicable Environmental Laws
to conduct its business and is in compliance with all terms and conditions of
any such permit, license or approval; (iv) to the Company's knowledge, no facts
currently exist that will require the Company or its Subsidiaries to make future
material capital expenditures to comply with Environmental Laws; and (v) no
property which is or has been owned, leased or occupied by the Company or its
Subsidiaries has been designated as a Superfund site pursuant to the
Comprehensive Environmental Response, Compensation of Liability Act of 1980, as
amended (42 U.S.C. Section 9601, et seq.) ("CERCLA") or otherwise designated as
a contaminated site under applicable state or local law. Neither the Company nor
any of its Subsidiaries has been named as a "potentially responsible party"
under CERCLA.;
(aa) The Company has filed all reports it has been required to file
under the Exchange Act and the rules and regulations thereunder; such reports
when filed conformed in all material respects to the requirements of the
Exchange Act; and none of such reports contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
to make the statements therein, in light of the circumstances under which they
were made, not misleading;
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(bb) The Company has reviewed its operations and those of its
subsidiaries to evaluate the extent to which the business or operations of the
Company or any of its subsidiaries have been and will be affected by the Year
2000 Problem (that is, any significant risk that computer hardware or software
applications used by the Company and its subsidiaries 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); as a result of such review, (i) the Company does not believe that (A)
there are any issues related to the Company's preparedness to address the Year
2000 Problem that are of a character required to be described or referred to in
the Registration Statement or Prospectus which have not been accurately
described in the Registration Statement or Prospectus and (B) the Year 2000
Problem will result in a Material Adverse Change, or result in any material loss
or interference with the business or operations of the Company and its
subsidiaries, taken as a whole; and (ii) the Company reasonably believes, after
due inquiry, that the suppliers, vendors, customers or other material third
parties used or served by the Company and such subsidiaries are addressing or
will address the Year 2000 Problem in a timely manner, except to the extent that
a failure to address the Year 2000 by a supplier, vendor, customer or material
third party would not result in a Material Adverse Change; and
(cc) The Company has not and will not distribute any offering material
in connection with the offering and sale of the Shares other than the
Registration Statement and the Prospectus.
2. REPRESENTATIONS OF THE SELLING SHAREHOLDERS. Each of the Selling
Shareholders, severally and not jointly, represents and warrants to, and agrees
with, each of the Underwriters that:
(a) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Shareholder of this Agreement and the
Power-of-Attorney and Custody Agreement (collectively, the "Custody Agreement")
hereinafter referred to, and for the sale and delivery of the Shares to be sold
by such Selling Shareholder hereunder, have been obtained; and such Selling
Shareholder has full right, power and authority to enter into this Agreement and
the Custody Agreement to sell, assign, transfer and deliver the Shares to be
sold by such Selling Shareholder hereunder;
(b) This Agreement and the Custody Agreement have each been duly
authorized, executed and delivered by such Selling Shareholder and each such
document constitutes a valid and binding obligation of such Selling Shareholder,
enforceable in accordance with its terms;
(c) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the sale of the Shares by such Selling Shareholder or the
consummation by such Selling Shareholder of the transactions on its part
contemplated by this Agreement and the Custody Agreement, except such as have
been obtained under the Act or the rules and regulations thereunder and such as
may be required under state securities or Blue Sky laws or the by-laws and rules
of the NASD in connection with the purchase and distribution by the Underwriters
of the Shares;
(d) The sale of the Shares to be sold by such Selling Shareholder
hereunder and the performance by such Selling Shareholder of this Agreement and
the Custody Agreement and the
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consummation of the transactions contemplated hereby and thereby will not result
in a breach or violation of any of the terms or provisions of, or constitute a
default under, or give any party a right to terminate any of its obligations
under, or result in the acceleration of any obligation under, any material
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder or any of its properties is bound or
affected, or violate or conflict with any material judgment, ruling, decree,
order, statute, Rule or regulation of any court or other governmental agency or
body applicable to such Selling Shareholder;
(e) Such Selling Shareholder has, and at the First Time of Delivery (as
defined in Section 5 hereof) will have, good and valid title to the Shares to be
sold by such Selling Shareholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such Shares and payment
therefor pursuant hereto, good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims, will pass to each of the several
Underwriters who have purchased such Shares in good faith and without notice of
any such lien, encumbrance, equity or claim or any other adverse claim within
the meaning of Section 8-302 of the Massachusetts Uniform Commercial Code;
(f) Such Selling Shareholder has the authority to and has executed and
delivered a lockup agreement in the form attached hereto as Annex II;
(g) Such Selling Shareholder has not taken and will not at any time
take, directly or indirectly, any action designed, or which might reasonably be
expected, to cause or result in, or which will constitute, stabilization of the
price of shares of Common Stock to facilitate the sale or resale of any of the
Shares;
(h) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling Shareholder
expressly for use therein, such Preliminary Prospectus and the Registration
Statement did, and the Prospectus and any further amendments or supplements to
the Registration Statement and the Prospectus will, when they become effective
or are filed with the Commission, as the case may be, conform in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; and
(i) Such Selling Shareholder has carefully reviewed the representations
and warranties of the Company contained in this Agreement and the information
contained in the Registration Statement. Based on the foregoing, the sale of the
Shares by such Selling Stockholder pursuant to this Agreement is not prompted by
any adverse information concerning the Company which is not set forth in the
Registration Statement.
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In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 with respect to the transactions herein contemplated, such Selling
Shareholder agrees to deliver to you prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
Each Selling Shareholder represents and warrants that a certificate in
negotiable form representing all of the shares of Series A Cumulative Preferred
Stock, par value $0.01 per share (the "Convertible Preferred Stock") which,
immediately prior to the consummation of the transactions contemplated hereby,
will, at the election of such Selling Stockholder, convert into all of the
Shares to be sold by such Selling Stockholder, has been placed in custody under
the Custody Agreement, in the form heretofore furnished to you, duly executed
and delivered by such Selling Shareholder to the Custodian (as defined in the
Custody Agreement), and that such Selling Shareholder has duly executed and
delivered a power-of-attorney, in the form heretofore furnished to you and
included in the Custody Agreement (the "Power-of-Attorney"), appointing Xxxxxx
X. Xxxxxx and Xxxxxxx X. Xxxxxxx and each of them, as such Selling Shareholder's
attorney-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver
this Agreement on behalf of such Selling Shareholder, to determine (subject to
the provisions of the Custody Agreement) the purchase price to be paid by the
Underwriters to such Selling Shareholder as provided in Section 3 hereof, to
authorize the delivery of the Shares to be sold by such Selling Shareholder
hereunder and otherwise to act on behalf of such Selling Shareholder in
connection with the transactions contemplated by this Agreement and the Custody
Agreement.
Each Selling Shareholders specifically agrees that the Shares
represented by the certificates held in custody for such Selling Shareholder
under the Custody Agreement are subject to the interests of the Underwriters
hereunder, and that the arrangements made by such Selling Shareholder for such
custody, and the appointment by such Selling Shareholder of the
Attorneys-in-Fact by the Power-of-Attorney, are to that extent irrevocable. Each
Selling Shareholder specifically agrees that the obligations of such Selling
Shareholder hereunder shall not be terminated by operation of law, whether by
the death or incapacity of such Selling Shareholder 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 by the occurrence of any other event. If
such Selling Shareholder or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be dissolved, or if any
other such event should occur, before the delivery of the Shares hereunder,
certificates representing the Shares to be sold by such Selling Shareholder
shall be delivered by or on behalf of such Selling Shareholder in accordance
with the terms and conditions of this Agreement and of the Custody Agreement,
and actions taken by the Attorneys-in-Fact pursuant to the Power-of-Attorney
shall be as valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such death,
incapacity, termination, dissolution or other event.
3. SHARES SUBJECT TO SALE. (a) On the basis of the representations,
warranties and agreements of the Company and the Selling Shareholders contained
herein, and subject to the terms and conditions of this Agreement, (i) the
Company agrees to issue and sell the Company Firm Shares to the several
Underwriters, (ii) each of the Selling Shareholders agrees, severally and not
jointly,
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to sell its respective Selling Shareholder Firm Shares to the several
Underwriters, and (iii) each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Selling Shareholders, at a
purchase price per share of $_________, the respective number of Firm Shares (to
be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all the Underwriters and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Company Optional Shares as
provided below, (i) the Company agrees to issue and sell the Company Optional
Shares to the several Underwriters and (ii) 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 3, that portion of the number
of Company 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 Company Optional Shares by a fraction the numerator
of which is the maximum number of Company 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 the
Company Optional Shares which 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 [______] Company Optional Shares at the purchase price per
share set forth in the paragraph above, for the sole purpose of covering over
allotments in the sale of the Firm Shares. Any such election to purchase Company
Optional Shares may be exercised by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Company Optional Shares to be purchased
and the date on which such Company Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery or,
unless you, and the Company otherwise agree in writing, earlier than two or
later than three business days after the date of such notice.
4. OFFERING. 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.
5. CLOSING. Certificates in definitive form for the Shares to be purchased
by each Underwriter hereunder, and in such denominations and registered in such
names as Xxxxx, Xxxxxxxx & Xxxx, Inc. may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of the
Company and the Selling Shareholders to you for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer or certified or official bank check or checks, payable
to the order of the Company and the Custodian on behalf of the Selling
Shareholders, respectively, in New York Clearing House funds, all at the office
of Xxxxx, Xxxxxxxx & Xxxx, Inc., 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
The time and date of such delivery and payment shall be, with respect to the
Company Firm Shares, 9:30 a.m., Boston time, on [________________], 2000 or such
other time and date as you and the Company may agree upon in writing, and, with
respect to the Company Optional Shares, 9:30 a.m., Boston time, on the date
specified by you in the written notice given by you of the Underwriters'
election
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to purchase such Company Optional Shares, or at such other time and date as you
and the Company may agree upon in writing. Such time and date for delivery of
the Company Firm Shares is herein called the "First Time of Delivery," such time
and date for delivery of the Company Optional Shares, if not the Company 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." Such
certificates will be made available for checking and packaging at least
twenty-four hours prior to each Time of Delivery at such location as you may
specify.
6. COVENANTS OF THE COMPANY. 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 which
shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when the
Registration Statement, or any amendment thereto, has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you copies thereof; 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, to use promptly its best efforts to obtain
its withdrawal;
(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 proceeds in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as you may from time to time 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 issuance of the Prospectus in connection with the offering or
sale of the Shares and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus in order to comply
with the Act, to notify you and upon your request 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
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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 fifteen 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
of the Commission thereunder (including at the option of the Company Rule 158
under the Act);
(e) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, not to offer,
sell, contract to sell or otherwise dispose of any securities of the Company
which are substantially similar to the Shares, without your prior written
consent other than (i) the sale of the Shares to be sold by the Company
hereunder, (ii) the Company's issuance of options under its option plans in
amounts not in excess of the amount shown as available for future grant in the
Prospectus, (iii) the Company's issuance of shares of Common Stock upon the
conversion of outstanding shares of Convertible Preferred Stock and (iv) shares
of capital stock issued, with at least five business days prior notice to Xxxxx,
Xxxxxxxx & Xxxx, Inc., in connection with the acquisition by the Company of the
assets or capital stock of another person or entity, whether directly, through
merger or consolidation or otherwise, if the terms of such issuance provide that
such shares of capital stock shall not be resold for a period of 180 days
following the date of the Prospectus; provided, however, that the Company shall
not release any party from such resale restriction without your prior written
consent;
(f) During a period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, not to grant
options or warrants or other securities to purchase shares of Common Stock at a
price less than the initial public offering price;
(g) To furnish to its shareholders as soon as practicable after the end
of each fiscal year ending after the date of this Agreement an annual report
(including a balance sheet and statements of income, shareholders' equity and
cash flow of the Company and its consolidated 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),
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(h) 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 shareholders generally, and
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission, the Nasdaq
National Market 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 combined
or consolidated
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basis to the extent the accounts of the Company and its subsidiaries are
combined or consolidated in reports furnished to its shareholders generally or
to the Commission);
(i) To use the net proceeds acquired by it from the sale of the Shares
in the manner specified in the Prospectus under the caption "Use of Proceeds"
and in a manner such that the Company will not become an "investment company" as
that term is defined in the Investment Company Act; and
(j) Not to accelerate the vesting of any option issued under any stock
option plan such that any such option may be exercised within 180 days from the
date of the Prospectus.
7. COVENANTS OF THE SELLING SHAREHOLDERS. Each of the Selling Shareholders
agree to pay or cause to be paid all taxes, if any, on the transfer and sale of
the Shares to be sold by such Selling Shareholder hereunder and the fees and
expenses, if any, of counsel and accountants retained by such Selling
Shareholder. The Company agrees with the Selling Shareholders to pay all costs
and expenses incident to the performance of the obligations of the Selling
Shareholders under this Agreement (except as set forth above), including, but
not limited to, all expenses incident to the delivery of the certificates for
the Shares to be sold by the Selling Shareholders, the costs and expenses
incident to the preparation, printing and filing of the Registration Statement
(including all exhibits thereto) and the Prospectus and any amendments or
supplements thereto, the expenses of qualifying the Shares to be sold by the
Selling Shareholders under the state securities or Blue Sky laws, all filing
fees and the reasonable fees and expenses of counsel for the Underwriters
payable in connection with the review of the offering of the Shares by the NASD,
and the cost of furnishing to the Underwriters the required copies of the
Registration Statement and Prospectus and any amendments or supplements thereto;
provided that each Selling Shareholder agrees to pay or cause to be paid its pro
rata share (based on the percentage which the number of Shares sold by such
Selling Shareholder bears to the total number of Shares sold) of all
underwriting discounts and commissions.
8. EXPENSES. 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 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 Memoranda 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 offer and sale under state securities laws as provided in Section
6(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) the filing fees and the reasonable fees and expenses of
counsel to the Underwriters incident to securing any required review by the NASD
of the terms of the sale of the Shares; (v) the cost of preparing stock
certificates; (vi) the cost and charges of any transfer agent or registrar; and
(vii) 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,
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however, that, except as provided in this Section 8, Section 10 and Section 13
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.
9. CONDITION OF UNDERWRITERS' OBLIGATIONS. 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 and the
Selling Shareholders herein are, at and as of such Time of Delivery, true and
correct, the condition that the Company and the Selling Shareholders shall each
have performed all of their respective 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 6(a)
hereof, 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) Xxxxxx, Xxxx & Xxxxxxx, counsel to the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery, with
respect to this Agreement, the Registration Statement, the Prospectus, and other
related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Xxxxxxxx & Xxxx LLP, counsel to the Company, shall have furnished
to you their written opinion, 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 the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Registration Statement and Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus under the caption "Description of Capital Stock." All of the
issued shares of capital stock of the Company have been duly authorized and
validly issued, are, to the best of such counsel's knowledge, fully paid and
nonassessable and, to the best of such counsel's knowledge, were not issued in
violation of any preemptive right, registration right, right of first refusal or
other similar right to subscribe for or purchase any securities which have not
been waived. The Shares have been duly authorized and when issued and paid for
as contemplated by this Agreement will be validly issued, fully paid and
non-assessable and will conform in all material respects to the description of
the Common Stock contained in the Prospectus under the caption "Description of
Capital Stock";
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(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 within the United States 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 certificates of public officials and
in respect of matters of fact upon certificates of officers of the Company,
provided that such counsel provide you with copies of such certificates and
shall state that they believe that both you and they are justified in relying
upon such 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 organization; 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 are owned directly by the Company, to our
knowledge, free and clear of all liens, encumbrances, equities or claims (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 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) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings, actions
or suits pending or threatened to which the Company or any of its subsidiaries
is or may be a party or of which property owned or leased by the Company or any
of its subsidiaries is or may be the subject, or related to environmental or
discrimination matters, which actions, suits or proceedings, might, individually
or in the aggregate, prevent or adversely affect the transactions contemplated
by this Agreement or result in a material adverse change in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company; no labor disturbance by the employees of the
Company or any of its subsidiaries exists or is imminent which might be expected
to materially adversely affect such general affairs, management, financial
position, shareholders' equity or results of operations; and neither the Company
nor any of its subsidiaries is a party or subject to the provisions of any
material injunction, judgment, decree or order of any court, regulatory body,
administrative agency or governmental body;
(vi) The Company has full corporate power and authority to enter
into this Agreement and this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The issuance and sale of the Shares being delivered at such
Time of Delivery by the Company and the performance by the Company of its
obligations under this Agreement and the consummation of the transactions herein
contemplated will not (i) 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 filed as an exhibit to
the Registration Statement to which the Company is a party or by which the
Company or any of its subsidiaries is a party or to 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, (ii) violate the provisions of
the Certificate of Incorporation or Bylaws of the Company or (iii) violate any
statute or any order, rule
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or regulation of the State of Delaware or of the United States (except that such
counsel need express no opinion as to state securities or Blue Sky laws or as to
compliance with the antifraud provisions of federal and state securities laws);
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the State
of Delaware or of the United States is required for the issuance 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 registration
of the Common Stock under the Exchange Act, and such consents, approval,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws or the bylaws and rules of the NASD in connection
with the purchase and distribution of the Shares by the Underwriters;
(ix) To the best of such counsel's knowledge, there are no
contracts or other documents required to be described in the Registration
Statement or to be filed as exhibits to the Registration Statement by the Act or
by the rules and regulations thereunder which have not been described or filed
as required;
(x) The statements under the captions "Liquidity and Capital
Resources," "Management--Employment Agreement," "Management--Stock Option Plan,"
"Related Party Transactions," "Description of Capital Stock" and "Shares
Eligible for Future Sale" in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein or matters of law, are
accurate summaries and fairly and correctly present in all material respects,
the information called for with respect to such documents and matters (provided,
however, that such counsel may rely on representations of the Company with
respect to the factual matters contained in such statements, and provided
further that such counsel shall state that nothing has come to the attention of
such counsel which leads them to believe that such representations are not true
and correct in all material respects);
(xi) Except as disclosed in the Prospectus, to the best of such
counsel's knowledge, the Company has not granted any rights, warrants or options
to acquire, instruments convertible into or exchangeable or exercisable for, or
entered into any commitments, plans, arrangements to issue any shares of capital
stock of the Company or any security convertible or exchangeable for capital
stock of the Company;
(xii) No holders of securities of the Company have rights under the
provisions of the Certificate of Incorporation or Bylaws of the Company or under
any agreement filed as an exhibit to the Registration Statement which have not
been waived or satisfied to the registration of shares of Common Stock or other
securities because of the filing of the Registration Statement by the Company or
the offering contemplated hereby;
(xiii) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company" as defined in the Investment Company Act;
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(xiv) The Shares have been authorized for inclusion on the Nasdaq
National Market, subject to notice of issuance; and
(xv) 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, including the notes and schedules
thereto, or any other financial or accounting information as set forth or
referred to 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.
Such counsel shall also state that they have participated in discussion
with your representatives and those of the Company, and while they have not
independently verified and are not passing upon and do not assume the
responsibility for, the accuracy, fairness or completeness of the statements
contained in the Registration Statement or the Prospectus, nothing has come to
such counsel's attention which gives them reason to believe that, as of its
effective date, the Registration Statement or any further amendment thereto made
by the Company prior to such Time of Delivery (other than the financial
statements, including the notes and schedules thereto, or any other financial or
accounting information as set forth or referred to therein, as to which such
counsel need express no belief) 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, including
the notes and schedules thereto, or any other financial or accounting
information as set forth or referred to therein, as to which such counsel need
express no belief) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in 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, including the notes and
schedules thereto, or any other financial or accounting information as set forth
or referred to therein, as to which such counsel need express no belief)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in 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 which is not filed
as required.
Such counsel shall also include a statement in such opinion as to the
matters set forth in this paragraph. The Registration Statement has become
effective under the Act. To the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued by
the Commission nor has any proceeding been instituted or contemplated for that
purpose under the Act. The Prospectus has been filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations under the Act within the
time period required thereby.
(d) [______________], intellectual property counsel to the Company,
shall have furnished to you their written opinion, dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
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(i) Such counsel is familiar with the technology used by the
Company and its subsidiaries in their businesses and the manner of its use
thereof and has read the Registration Statement and the Prospectus, including
particularly the portions of the Registration Statement and the Prospectus
referring to trademarks, trade names, patents, copyrights, licenses, trade
secrets or other intellectual property rights;
(ii) Such counsel has no reason to believe that the Registration
Statement or the Prospectus (A) contains any untrue statement of a material fact
with respect to trademarks, trade names, patents, copyrights, licenses, trade
secrets or other intellectual property rights owned or used by the Company or
any of its subsidiaries, or the manner of its use thereof, or any allegation on
the part of any person that the Company or any of its subsidiaries is infringing
any trademarks, trade names, patent rights, copyrights, licenses, trade secrets
or other intellectual property rights of any such person or (B) omits to state
any material fact relating to trademarks, trade names, patents, copyrights,
license, trade secrets or other intellectual property rights owned or used by
the Company or any of its subsidiaries, or the manner of its use thereof, or any
allegation of which such counsel have knowledge, that is required to be stated
in the Registration Statement or the Prospectus or is necessary to make the
statements therein not misleading;
(iii) To the best of such counsel's knowledge, there are no
adversarial legal or governmental proceedings pending relating to trademarks,
trade names, patent rights, copyrights, licenses, trade secrets or other
intellectual property rights of the Company or any of its subsidiaries, and to
the best of such counsel's knowledge no such adversarial proceedings are
threatened or contemplated by governmental authorities or others;
(iv) Such counsel does not know of any contracts or other documents
relating to the Company's or any of its subsidiaries' trademarks, trade names,
patents, copyrights, licenses, trade secrets or other intellectual property
rights of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus that are not filed or described as required;
(v) To the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries is infringing or otherwise violating any trademarks,
trade names, patents, copyrights, licenses, trade secrets or other intellectual
property rights of others, and to the best such counsel's knowledge there are no
infringements by any of the Company's or any of its subsidiaries' trademarks,
trade names, patents, copyrights, licenses, trade secrets or other intellectual
property rights which in the judgment of such counsel could affect materially
the use thereof by the Company or any of its subsidiaries; and
(vi) To the best of such counsel's knowledge, the Company or one of
its subsidiaries owns or possesses sufficient licenses, or other rights to use
all trademarks, trade names, patents, copyrights, licenses, trade secrets or
other intellectual property rights necessary conduct the business now being or
proposed to be conducted by the Company and its subsidiaries as described in the
Prospectus.
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(e) [_________________], counsel to the Selling Shareholders, shall
have furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) This Agreement and the Custody Agreement have been duly
authorized, executed and delivered by or on behalf of each of the Selling
Shareholders; the Custodian has been duly and validly authorized to act as the
custodian of the Shares to be sold by each such Selling Shareholder; the
performance of this Agreement and the Custody Agreement and the consummation of
the transactions therein contemplated by the Selling Shareholders do not, to the
knowledge of such counsel, violate or conflict with any judgment, ruling,
decree, order, statute, rule or regulation of any court or other governmental
agency or body applicable to any Selling Shareholder (except that such counsel
need express no opinion as to state securities or Blue Sky laws or as to
compliance with the antifraud provisions of federal and state securities laws);
(ii) To such counsel's knowledge, no consent, approval,
authorization or order of, or any filing or declaration with, any court or
governmental agency or body is required for consummation by the Selling
Shareholders of the transactions on their part contemplated by this Agreement
and the Custody Agreement, except such as have been made or obtained under the
Act and as may be required under state securities or Blue Sky laws or the
by-laws and rules of the NASD in connection with the purchase and distribution
by the Underwriters of the Shares (as to which such counsel need express no
opinion) and such as have been obtained or made under the Act or the rules and
regulations thereunder;
(iii) Immediately prior to the date hereof, based solely on the
examination of the Company's stock record books and a certificate from each
Selling Stockholder, each Selling Shareholder was the sole registered owner of
the Shares to be sold by the Selling Shareholder on the date hereof, upon
registration of the Shares to be sold by the Selling Shareholder in the names of
the Underwriter in the stock records of the Company, assuming the Underwriters
purchased such Shares in good faith and without notice of any adverse claim
within the meaning of the applicable Uniform Commercial Code, the Underwriters
will have acquired the Shares free of any adverse claim, any lien in favor of
the Company and any restrictions on transfer imposed by the Company; and
(iv) Each of this Agreement and the Custody Agreement is a valid
and binding agreement of each Selling Shareholder, constitutes a valid and
binding obligation of each Selling Shareholder and is enforceable against each
Selling Shareholder in accordance with its terms, except insofar as
indemnification provisions may be limited by applicable law and except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights generally
or by general equitable principles and limitations on the availability of
equitable remedies.
(f) At 10:00 a.m., Boston time, on the effective date of the
Registration Statement and the effective date of the most recently filed
post-effective amendment to the Registration Statement and also at each Time of
Delivery, KPMG LLP shall have furnished to you a letter or letters, dated the
respective date of delivery thereof, in form and substance satisfactory to you,
to the effect set forth in Annex I hereto;
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(g) (i) Neither the Company nor any of its subsidiaries have sustained
since the date of the latest audited financial statements included 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, other 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 (excluding the grant of stock options under the
Company's 1998 Equity Incentive Plan which in any event have not exceeded the
unallocated reserve for such plan as described in the Prospectus) or long-term
debt of the Company or any change, or any development involving a prospective
change, in or affecting the business, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, other 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 your
judgment 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:
(h) On or after the date hereof there shall not have occurred any of
the following: (i) additional material governmental restrictions, not in force
and effect on the date hereof, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or on the American Stock Exchange or
in the over the counter market by the NASD, or trading in securities generally
shall have been suspended on either such Exchange or in the over the counter
market by the NASD, or a general banking moratorium shall have been established
by federal or New York authorities, (ii) an outbreak of major hostilities or
other national or international calamity or any substantial change in political,
financial or economic conditions shall have occurred or shall have accelerated
or escalated to such an extent, as, in your judgment, to affect adversely the
marketability of the Shares, or (iii) there shall be any action, suit or
proceeding pending or threatened, or there shall have been any development or
prospective development involving particularly the business or properties or
securities of the Company or any of its subsidiaries or the transactions
contemplated by this Agreement, which, in your judgment, has materially and
adversely affect the Company's business or earnings and make it impracticable or
inadvisable to offer or sell the Shares;
(i) The Shares to be sold by the Company at such Time of Delivery shall
have been accepted for quotation, subject to notice of issuance, on the Nasdaq
National Market;
(j) Each director, executive officer, Selling Shareholder, stockholder
holding 3% or more of the Common Stock and holder of options or Convertible
Preferred Stock that upon exercise or conversion thereof would equal 3% or more
of the Common Stock shall have executed and delivered to you lock-up agreements
in the form attached hereto as Annex II; and
(k) The Company and the Selling Shareholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of the Selling Shareholders, respectively, satisfactory to
you, as to the accuracy of the representations and warranties of the Company and
of the Selling Shareholders, respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and the Selling Shareholders of
all of their
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obligations hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as you may reasonably request and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (g) of this Section, and as to such other
matters as you may reasonably request.
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Selling Shareholders, jointly and severally,
will indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or controlling person 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 the omission or alleged omission to state in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, 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 neither the Company nor any Selling
Shareholder shall 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 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 you expressly for use
therein.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Selling Shareholders against any losses, claims, damages or liabilities to
which the Company or the Selling Shareholders 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, in light of the circumstances in which
they were made, 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 you expressly for use therein; and will reimburse the
Company and the Selling Shareholders for any legal or other expenses reasonably
incurred by the Company or the Selling Shareholders in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof
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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 to the
extent prejudiced by failure to notify. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the 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 reasonably 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. No indemnifying party shall be liable for
the settlement of any action or claim affected without its written consent.
(d) If the indemnification provided for in this Section 10 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 and the Selling Shareholders 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 and the Selling Shareholders 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 and the Selling Shareholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Shareholders, respectively,
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholders
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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, the Selling Shareholders 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 Selling Stockholder
shall be liable for contribution under this Section 10 in circumstances where
such Selling Stockholder would not be required to provide indemnification if
indemnification were available. 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.
(e) The obligations of the Company and the Selling Shareholders under
this Section 10 shall be in addition to any liability which the Company and the
Selling Shareholders 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 Underwriter under this Section 10
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 and to each person, if any, who controls the
Company or any Selling Shareholder within the meaning of the Act.
(f) Notwithstanding anything to the contrary in this Section 10, the
liability of each Selling Shareholder under the indemnity agreements in this
Section 10 shall not exceed the total initial public offering price of the
Selling Shareholders' Firm Shares sold by such Selling Shareholder under this
Agreement, less underwriters' discounts.
11. TERMINATION.
(a) 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 and the Selling Shareholders 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 and the Selling
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Shareholders notify you that they have so arranged for the purchase of such
Shares, you or the Company and the Selling Shareholders 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.
(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 does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company and the
Selling Shareholders 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.
(c) 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 and the
Selling Shareholders 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 Company Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company or the
Selling Shareholders, except for the expenses to be borne by the Company and the
Selling Shareholders and the Underwriters as provided in Section 8 hereof and
the indemnity and contribution agreements in Section 10 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
12. SURVIVAL. 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.
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13. EXPENSES OF TERMINATION. If this Agreement shall be terminated pursuant
to Section 11 hereof, the Company or the Selling Shareholders shall not then be
under any liability to any Underwriter except as provided in Section 8 and
Section 10 hereof; but, if for any other reason this Agreement is terminated,
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 and
the Selling Shareholders shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Section 8 and Section 10 hereof.
14. NOTICE. 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 Xxxxx, Xxxxxxxx & Xxxx, Inc. on behalf of you as the
Representatives; and in all dealing with any Selling Shareholders hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Shareholders made or given by any
or all of the Attorneys-in-Fact for such Selling Shareholders.
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 as the Representatives in care of Xxxxx, Xxxxxxxx
& Xxxx, Inc., 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx; if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: President; and if to a Selling Shareholder shall be
delivered or sent by mail, telex or facsimile transmission to [________________]
on behalf of the Selling Shareholders; provided, however, that any notice to an
Underwriter pursuant to Section 10(d) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriter's Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company by you on request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
15. MISCELLANEOUS.
(a) This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters and the Company and the Selling Shareholders and,
to the extent provided in Sections 10 and 12 hereof, the officers and directors
of the Company and each person who controls the Company and the Selling
Shareholders 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.
(b) 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.
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(c) This Agreement shall be governed by and construed in accordance
with the laws of The Commonwealth of Massachusetts.
(d) 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.
If the foregoing is in accordance with your understanding, please sign
and return to us six 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 among 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 and the Selling Shareholders for examination, upon request, but without
warranty on your part as to the authority of the signors thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact
for the Selling Shareholders represents by so doing that he has been duly
appointed as Attorney-in-Fact by the Selling Shareholders pursuant to a validly
existing and binding Power-of-Attorney which authorizes such Attorney-in-Fact to
take such action.
Very truly yours,
EVERCEL, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE II ATTACHED HERETO
By:
-----------------------------------------
Name:
---------------------------------------
Title: Attorney-in-Fact
--------------------------------------
Accepted as of the date
hereof at Boston, Massachusetts
XXXXX, XXXXXXXX & XXXX, INC.
FAC/EQUITIES
XXXXXXX SECURITIES INC.
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By:
----------------------------------------
(Xxxxx, Xxxxxxxx & Xxxx, Inc.
on behalf of each of the underwriters)
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SCHEDULE I
Number of Company
Total Number Optional Shares to be
of Purchased if
Firm Shares to be Maximum Option
Purchased Exercised
Xxxxx, Xxxxxxxx & Xxxx, Inc................
FAC/Equities...............................
Xxxxxxx Securities Inc. ...................
Total:............................... [________] [________]
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SCHEDULE II
SELLING SHAREHOLDERS
Number of Selling Shareholders'
Name of Selling Shareholder Firm Shares
Total:..................................... [________]
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ANNEX I
FORM OF COMFORT LETTER
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ANNEX II
FORM OF LOCK-UP AGREEMENT FOR EXECUTION BY THE
COMPANY'S OFFICERS, DIRECTORS,
3% SHAREHOLDERS AND SELLING SHAREHOLDERS
32
