EXHIBIT 1.1
BRIO TECHNOLOGY, INC.
_________ SHARES
COMMON STOCK, PAR VALUE $0.001 PER SHARE
UNDERWRITING AGREEMENT
Dated April ____, 1998
BRIO TECHNOLOGY, INC.
April __, 1998
2,900,000 SHARES COMMON STOCK
(PLUS AN OPTION TO PURCHASE UP TO
435,000 ADDITIONAL SHARES TO COVER OVER-ALLOTMENTS)
UNDERWRITING AGREEMENT
DEUTSCHE XXXXXX XXXXXXXX INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
FIRST ALBANY CORPORATION
XXXXX XXXXXXX INC.
As Representatives of the several Underwriters
c/o Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Brio Technology, Inc., a Delaware corporation (the "Company"), and the
persons named in Schedule 2 hereto (the "Selling Stockholders") hereby confirm
their agreement with the several underwriters named in Schedule 1 hereto (the
"Underwriters"), for whom you have been duly authorized to act as
representatives (the firms acting in such capacities, the "Representatives"), as
set forth below. If you are the only Underwriters, all references herein to the
Representatives shall be deemed to be references to the Underwriters.
SECTION 1. UNDERWRITING. Subject to the terms and conditions contained herein:
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(a) The Company proposes to issue and sell 2,775,000 shares of common
stock, par value $0.001 per share (the "Common Stock"), of the Company, and the
Selling Stockholders propose to sell 125,000 shares of Common Stock (said shares
to be issued and sold by the Company and shares to be sold by the Selling
Stockholders collectively, the "Firm Shares") to the several Underwriters. The
Company also proposes to issue and sell not more than 310,000 additional shares
of Common Stock, and the Selling Stockholders also propose to sell not more than
125,000 additional shares of Common Stock (collectively, the "Option Shares"
and, together with the Firm Shares, the "Shares") to the several Underwriters if
requested by the Representatives as provided in Section 2(b) hereof.
(b) Upon your authorization of the release of the Firm Shares, the
Underwriters propose to make a public offering (the "Offering") of the Firm
Shares upon the terms set forth in the Prospectus (as defined below) as soon
after the Registration Statement (as defined below) and this Agreement have
become effective as in the Representatives' sole judgment is advisable. As used
in this Agreement, the term "Original Registration
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Statement" means the registration statement (File No. 333-47263) initially
filed with the Securities and Exchange Commission (the "Commission") relating
to the Shares, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Securities Act
of 1933, as amended (the "Securities Act"), and included in the Prospectus;
the term "Rule 462(b) Registration Statement" means any registration statement
filed with the Commission pursuant to Rule 462(b) under the Securities Act
(including the Registration Statement and any Preliminary Prospectus (as
defined below) or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each
prospectus subject to completion filed with the Original Registration
Statement or any amendment thereto (including the prospectus subject to
completion, if any, included in the Original Registration Statement or any
amendment thereto at the time it was or is declared effective); and the term
"Prospectus" means:
(i) if the Company relies on Rule 434 under the Securities Act, the
Term Sheet (as defined below) relating to the Shares that is first filed
pursuant to Rule 424(b)(7) under the Securities Act, together with the
Preliminary Prospectus identified therein that such Term Sheet supplements;
(ii) if the Company does not rely on Rule 434 under the Securities
Act, the prospectus first filed with the Commission pursuant to Rule 424(b)
under the Securities Act;
(iii) if the Company does not rely on Rule 434 under the Securities
Act and if no prospectus is required to be filed pursuant to Rule 424(b) under
the Securities Act, the prospectus included in the Registration Statement; or
(iv) for purposes of the representations and warranties contained in
Section 5 hereof, if the prospectus is not in existence, the most recent
Preliminary Prospectus;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Securities Act. Any reference herein to the "date" of a
Prospectus that includes a Term Sheet shall mean the date of such Term Sheet.
SECTION 2. PURCHASE AND CLOSING.
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(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell, and the Selling Stockholders
propose to sell, to each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company and the Selling
Stockholders, at a purchase price of $___ per Share (the "Purchase Price"), the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule 1 hereto. Firm Shares shall be registered by ______________ in the
name of Cede & Co. ("Cede & Co.") (the nominee of the Depository Trust Company
("DTC")), and credited to the accounts of such of its participants as the
Representatives shall request, upon notice to the Company and the Selling
Stockholders at least 48 hours prior to the First Closing Date (as defined
below), with any transfer taxes payable in connection with the transfer of the
Firm Shares to the Underwriters duly paid, against payment by or on behalf of
the Underwriters to the account of the Company and the Selling Stockholders of
the aggregate Purchase Price therefor by wire transfer
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in immediately available funds. Delivery or registry of and payment for the
Firm Shares shall be made at the offices of Venture Law Group, 0000 Xxxx Xxxx
Xxxx, Xxxxx Xxxx, Xxxxxxxxxx at 9:30 A.M., New York City time, on May
____,1998 (the [third or fourth] full business day following the date of this
Agreement), or at such other place, time or date as the Representatives, the
Company and the Selling Stockholders may agree upon. Such time and date of
delivery against payment are herein referred to as the "First Closing Date,"
and the implementation of all the actions described in this Section 2(a) is
herein referred to as the "First Closing."
(b) For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Shares as contemplated by the Prospectus, the
Company and the Selling Stockholders hereby grant to the several Underwriters an
option to purchase, severally and not jointly, the Option Shares. The purchase
price to be paid for any Option Shares shall be the same as the Purchase Price
for the Firm Shares set forth above in Section 2(a). The option granted hereby
may be exercised as to all or any part of the Option Shares from time to time
within thirty days after the date of the Prospectus (or, if such 30th day shall
be a Saturday or Sunday or a holiday, on the next business day thereafter when
the New York Stock Exchange and The Nasdaq Stock Market Inc.'s National Market
(the "Nasdaq National Market") is open for trading). The Underwriters shall not
be under any obligation to purchase any of the Option Shares prior to the
exercise of such option. The Representatives may from time to time exercise the
option granted hereby by giving notice in writing or by telephone (confirmed in
writing) to the Company and the Selling Stockholders setting forth the aggregate
number of Option Shares as to which the several Underwriters are then exercising
the option and the date and time for delivery or registry of and payment for
such Option Shares. Any such date of delivery or registry shall be determined
by the Representatives but shall not be earlier than two business days or later
than five business days after such exercise of the option and, in any event,
shall not be earlier than the First Closing Date. The time and date set forth
in such notice, or such other time or date as the Representatives, the Company
and the Selling Stockholders may agree upon or as the Representatives may
determine pursuant to Section 2(a) hereof, is herein called an "Option Closing
Date" with respect to such Option Shares, and the implementation of all the
actions described in this Section 2(b) is herein referred to as the "Option
Closing." As used in this Agreement, the term "Closing Date" means either the
First Closing Date or any Option Closing Date, as applicable, and the term
"Closing" means either the First Closing or any Option Closing, as applicable.
If the option is exercised as to all or any portion of the Option Shares, then
either one or more certificates in definitive form for such Option Shares shall
be delivered or, if such Option Shares are to be held through DTC, such Option
Shares shall be registered and credited, on the related Option Closing Date in
the same manner, and upon the same terms and conditions, set forth in Section
2(a), except that reference therein to the Firm Shares and the First Closing
Date shall be deemed, for purposes of this paragraph (b), to refer to such
Option Shares and Option Closing Date, respectively. Upon exercise of the
option as provided herein, the Company and the Selling Stockholders shall become
obligated to sell to each of the several Underwriters, and, on the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, each of the Underwriters
(severally and not jointly) shall become obligated to purchase from the Company
and the Selling Stockholders, the same percentage of the total number of the
Option Shares as to which the several Underwriters are then exercising the
option as such Underwriter is obligated to purchase of the aggregate number of
Firm Shares, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares. In the event that the option is exercised
in part, the number of Option Shares to be sold by each of the Selling
Stockholders shall be, as nearly as practicable, in the same proportion to each
other as are the number of Option Shares to be sold by each Selling Stockholder
listed opposite their names on Schedule 2 hereto.
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(c) The Company and the Selling Stockholders hereby acknowledge that the
payment of monies pursuant to Section 2(a) and Section 2(b) hereof (a "Payment")
by or on behalf of the Underwriters of the aggregate Purchase Price for any
Shares does not constitute closing of a purchase and sale of the Shares. Only
execution and delivery, by facsimile or otherwise, of a receipt for Shares by
the Underwriters indicates completion of the closing of a purchase of the Shares
from the Company and the Selling Stockholders. Furthermore, in the event that
the Underwriters make a Payment to the Company and the Selling Stockholders
prior to the completion of the closing of a purchase of Shares, the Company and
the Selling Stockholders hereby acknowledge that until the Underwriters execute
and deliver such receipt for the Shares, the Company and the Selling
Stockholders will not be entitled to the Payment and shall return the Payment to
the Underwriters as soon as practicable (by wire transfer of same-day funds)
upon demand. In the event that the closing of a purchase of Shares is not
completed and the Payment is not returned by the Company and the Selling
Stockholders to the Underwriters on the same day the Payment was received by the
Company and the Selling Stockholders, the Company and the Selling Stockholders
agree to pay to the Underwriters in respect of each day the Payment is not
returned by them, in same-day funds, interest on the amount of such Payment in
an amount representing the Underwriters' cost of financing as reasonably
determined by the Representatives, pro rata in proportion to the percentage of
such Payment received by each.
(d) It is understood that any of you, individually and not as one of the
Representatives, may (but shall not be obligated to) make Payment on behalf of
any Underwriter or Underwriters for any of the Shares to be purchased by such
Underwriter or Underwriters. No such Payment shall relieve such Underwriter or
Underwriters from any of its or their obligations hereunder.
SECTION 3. COVENANTS.
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(a) The Company covenants and agrees with the several Underwriters that:
(i) The Company will:
(x) use its best efforts to cause the Registration Statement,
if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required,
the Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Securities Act. During any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act, the Company (I) will comply
with all requirements imposed upon it by the Securities Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Shares in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(II) will not file with the Commission the Prospectus, Term Sheet, any
amendment or supplement to such Prospectus or Term Sheet, any amendment to the
Registration Statement (including the amendment referred to in the second
sentence of Section 5(a)(i) hereof) or any Rule 462(b) Registration Statement
unless the Representatives previously have been advised of, and furnished with
a copy within a reasonable period of time prior to, the proposed filing and
the Representatives shall have given their consent to such filing, which
consent shall not unreasonably be withheld. The Company will prepare and file
with the Commission, in accordance with the rules and regulations of the
Commission, promptly upon request by the Representatives or counsel for the
Underwriters, any amendments to the Registration Statement or amendments
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or supplements to the Prospectus that may be necessary or advisable in
connection with the distribution of the Shares by the several Underwriters.
The Company will advise the Representatives, promptly after receiving notice
thereof, of the time when the Registration Statement or any amendment thereto
has been filed or declared effective or the Prospectus or Term Sheet or any
amendment or supplement thereto has been filed and will provide evidence
satisfactory to the Representatives of each such filing or effectiveness;
(y) without charge, provide (I) to the Representatives and to
counsel for the Underwriters, an executed and a conformed copy of the Original
Registration Statement and each amendment thereto or any Rule 462(b)
Registration Statement (in each case including exhibits thereto), (II) to each
other Underwriter, a conformed copy of the Original Registration Statement and
each amendment thereto or any Rule 462(b) Registration Statement (in each case
without exhibits thereto), and (III) so long as a prospectus relating to the
Shares is required to be delivered under the Securities Act, as many copies of
each Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto as the Representatives may reasonably request. Without limiting the
application of clause (III) of the preceding sentence, the Company, not later
than (A) 9:00 A.M., New York City time, on the business day following the date
of determination of the public offering price, if such determination occurred
at or prior to 12:00 noon, New York City time, on such date or (B) 6:00 P.M.,
New York City time, on the business day following the date of determination of
the public offering price, if such determination occurred after 12:00 noon,
New York City time, on such date, will deliver to the Underwriters, without
charge, as many copies of the Prospectus and any amendment or supplement
thereto as the Representatives may reasonably request for purposes of
confirming orders that are expected to settle on the First Closing Date; and
(z) advise the Representatives, promptly after receiving notice
or obtaining knowledge thereof, of (I) the issuance by the Commission of any
stop order suspending the effectiveness of the Original Registration Statement
or any amendment thereto or any Rule 462(b) Registration Statement or any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, (II) the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, (III)
the institution, threatening or contemplation of any proceeding for any
purpose identified in the preceding clause (I) or (II), or (IV) any request
made by the Commission for amending the Original Registration Statement or any
Rule 462(b) Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Company will use its best
efforts to prevent the issuance of any such stop order and, if any such stop
order is issued, to obtain the withdrawal thereof as promptly as possible.
(ii) The Company will arrange for the qualification of the Shares for
offering and sale in each jurisdiction as the Representatives shall designate
including, but not limited to, pursuant to applicable state securities ("Blue
Sky") laws of certain states of the United States of America or other U.S.
jurisdictions, and the Company shall maintain such qualifications in effect for
so long as may be necessary in order to complete the placement of the Shares;
provided, however, that the Company shall not be obliged to file any general
consent to service of process or to qualify as a foreign corporation or as a
securities dealer in any jurisdiction or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(iii) If, at any time prior to the final date when a prospectus
relating to the Shares is required to be delivered under the Securities Act, any
event occurs as a result of which the Prospectus, as then amended or
supplemented, would contain any untrue statement of a material fact or omit to
state a material fact necessary
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in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if for any other reason it
shall be necessary at any time to amend the Registration Statement or amend or
supplement the Prospectus to comply with the Securities Act or the rules or
regulations of the Commission thereunder or applicable law, the Company will
promptly notify the Representatives thereof and will promptly, at its own
expense, but subject to the second sentence of Section 3(a)(i)(x) hereof: (x)
prepare and file with the Commission an amendment to the Registration
Statement or amendment or supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and (y) supply any amended
Registration Statement or amended or supplemented Prospectus to the
Underwriters in such quantities as the Underwriters may reasonably request.
(iv) The Company will make generally available to the Company's
security holders and to the Representatives as soon as practicable an earnings
statement that satisfies the provisions of Section 11(a) of the Securities Act,
including Rule 158 thereunder.
(v) The Company will apply the net proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(vi) The Company will not, and will not allow any subsidiary to,
publicly announce any intention to, and will not itself, and will not allow any
subsidiary to, without the prior written consent of Deutsche Xxxxxx Xxxxxxxx
Inc., on behalf of the Underwriters, (x) offer, pledge, sell, offer to sell,
contract to sell, sell any option or contract to purchase, purchase any option
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into, or exercisable or exchangeable for, Common Stock,
or (y) enter into any swap or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the shares of Common
Stock or securities convertible into, or exercisable or exchangeable for, shares
of Common Stock (whether any such transaction described in clause (x) or (y)
above is to be settled by delivery of shares of Common Stock or such other
securities, in cash or otherwise), for a period beginning from the date hereof
and continuing to and including the date 180 days after the date of the
Prospectus, except pursuant to this Agreement and other than with respect to (a)
shares of Common Stock to be issued upon the exercise of a warrant to purchase
shares of Common Stock, or upon conversion or exchange of securities convertible
or exchangeable into shares of Common Stock, in each case, which are outstanding
on the date hereof and disclosed in the Prospectus, and (b) shares of Common
Stock (or any securities exercisable, convertible into or exchangeable for
shares of Common Stock) issued pursuant to any employee benefit plans, qualified
stock option plans or other employee compensation plans which are disclosed in
the Prospectus.
(vii) Neither the Company nor any of its affiliates, nor any person
acting on behalf of any of them will, directly or indirectly, (x) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares, or (y) (I) sell, bid for, purchase, or pay anyone any compensation for
soliciting purchases of, the Shares, or (II) pay or agree to pay to any person
any compensation for soliciting another to purchase any other securities of the
Company; provided, however, that this paragraph shall not be construed to apply
to the Underwriters.
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(viii) The Company will obtain the agreements described in Section
7(i) hereof prior to the First Closing Date.
(ix) If at any time during the 25-day period after the Registration
Statement becomes effective or during the period prior to any Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in the Representatives' sole judgment the market price of the
Shares has been or is likely to be materially affected (regardless of whether
such rumor, publication or event necessitates a supplement to or amendment of
the Prospectus), the Company will, after notice from the Representatives
advising the Company to the effect set forth above, forthwith prepare, consult
with the Representatives concerning the substance of, and disseminate a press
release or other public statement reasonably satisfactory to the
Representatives, responding to or commenting on such rumor, publication or
event.
(x) If the Company elects to rely on Rule 462(b), the Company shall
both file the Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Securities Act by the earlier of (x) 10:00 P.M. New
York City time on the date of this Agreement and (y) the time confirmations are
sent or given, as specified by Rule 462(b)(2) under the Securities Act.
(xi) The Company will cause the Shares to be duly included for
quotation on the Nasdaq National Market prior to the First Closing Date. The
Company will ensure that the Shares remain included for quotation on the Nasdaq
National Market following the First Closing Date.
(xii) The Company will (i) enforce the terms of each Lock-up
Agreement (as defined in Section 5 (a) (xxxi)), (ii) issue stop-transfer
instructions to the transfer agent for the Common Stock with respect to any
transaction or contemplated transaction that would constitute a breach of or
default under the applicable Lock-up Agreement and (iii) upon written request
of Deutsche Xxxxxx Xxxxxxxx Inc., release from the Lock-up Agreements those
shares of Common Stock held by those holders set forth in such request. In
addition, except with the prior written consent of Deutsche Xxxxxx Xxxxxxxx
Inc., the Company agrees (i) not to amend or terminate, or waive any right
under, any Lock-up Agreement, or take any other action that would directly or
indirectly have the same effect as an amendment or termination, or waiver of
any right under, any Lock-up Agreement, that would permit any holder of shares
of Common Stock, or any securities convertible into, or exercisable or
exchangeable for, Common Stock, to (x) offer, pledge, sell, offer to sell,
contract to sell, sell any option or contract to purchase, purchase any option
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, such shares of Common Stock or other
securities, or (y) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of such shares
of Common Stock or other securities, and (ii) not to consent to any sale,
short sale, grant of an option for the purchase of, or other disposition or
transfer of shares of Common Stock, or securities convertible into or
exercisable or exchangeable for Common Stock, subject to a Lock-up Agreement.
(xiii) The Company will place a restrictive legend on any shares of
Common Stock acquired pursuant to the exercise, after the date hereof and
prior to the expiration of the 180-day period after the date of the initial
public offering of the Shares, of any option granted under the 1992 Stock
Option Plan (the "Option Plan"), which legend shall restrict the transfer of
such shares prior to the expiration of such 180-day period. In addition, the
Company agrees that, without the prior written consent of Deutsche Xxxxxx
Xxxxxxxx Inc., it will not
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release any stockholder or option holder from the market standoff provision
imposed by the Company pursuant to the terms of the Option Plan earlier than
180 days after the date of the initial public offering of the Shares.
(b) Each Selling Stockholder agrees that:
(i) It will not, and no person acting on behalf of such Selling
Stockholder will, directly or indirectly, (x) take any action designed to cause
or to result in, or that has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares or (y) (I) sell, bid
for, purchase, or pay anyone any compensation for soliciting purchases of, the
Shares or (II) pay or agree to pay to any person any compensation for soliciting
another to purchase any other securities of the Company (except for the sale of
Shares by the Selling Stockholders under this Agreement); provided, however,
that this paragraph shall not be construed to apply to the Underwriters.
(ii) It will not publicly announce any intention to, and will not
itself, without the prior written consent of Deutsche Xxxxxx Xxxxxxxx Inc. on
behalf of the Underwriters, (x) offer, pledge, sell, offer to sell, contract to
sell, sell any option or contract to purchase, purchase any option to sell,
grant any option, right or warrant to purchase, or otherwise transfer or dispose
of, directly or indirectly, any of the shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, Common Stock, or (y) enter
into any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the shares of Common Stock or any
securities convertible into, or exercisable or exchangeable for, shares of
Common Stock (whether any such transaction described in clause (x) or (y) above
is to be settled by delivery of shares of Common Stock or such other securities,
in cash or otherwise), in each case, beneficially owned (within the meaning of
Rule 13d-3 under the Exchange Act) or otherwise controlled by such person on the
date hereof or hereafter acquired, for a period beginning from the date hereof
and continuing to and including the date 180 days after the date of the
Prospectus; provided, however, that such Selling Stockholder may, without the
prior written consent of Deutsche Xxxxxx Xxxxxxxx Inc. on behalf of the
Underwriters, transfer shares of Common Stock or such other securities to
members of such Selling Stockholder's immediate family or to trusts for the
benefit of members of such Selling Stockholder's immediate family or in
connection with bona fide gifts, provided that any transferee agrees to the
transfer restrictions described above.
SECTION 4. EXPENSES.
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(a) The Company shall bear and pay all costs and expenses incurred incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 9 hereof, including: (i) the fees and expenses of its
counsel, accountants and any other experts or advisors retained by the Company;
(ii) the costs of delivering and distributing the Powers of Attorney (as defined
below) and the Custody Agreements (as defined below) and the fees and expenses
of the Custodian (as defined below) (and any other Attorney-in-Fact (as defined
below)); (iii) fees and expenses incurred in connection with the registration of
the Shares under the Securities Act and the preparation and filing of the
Registration Statement, the Prospectus and all amendments and supplements
thereto; (iv) the printing and distribution of the Prospectus and any
Preliminary Prospectus and the printing and production of all other documents
connected with the Offering (including this Agreement and any other related
agreements); (v) expenses related to the qualification of the Shares under the
state securities or Blue Sky laws, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with
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the preparation of any Blue Sky memoranda; (vi) the filing fees and expenses,
if any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc., including the fees and disbursements of counsel for
the Underwriters in connection therewith; (vii) all expenses arising from the
quoting of the Shares on the Nasdaq National Market; (viii) all arrangements
relating to the preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Shares, including transfer agent's and registrar's
fees; (ix) the costs and expenses of the "roadshow" and any other meetings
with prospective investors in the Shares (other than as shall have been
specifically approved by the Representatives to be paid for by the
Underwriters); and (x) the costs and expenses of travel, lodging and meals of
the Company's employees in connection with advertising relating to the
Offering (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters). Subject to the provisions
of Section 10, the Underwriters agree to pay all costs and expenses incident
to the performance of their obligations under this Agreement not payable by
the Company pursuant to the preceding sentence, including, without limitation,
the fees and disbursements of counsel to the Underwriters (other than as set
forth in clauses (v) and (vi) above).
(b) The Selling Stockholders shall bear and pay all costs and expenses
incurred incident to the performance of their respective obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 9 hereof, including: (i) any
stamp duties, capital duties and stock transfer taxes, if any, payable upon the
sale of the Shares of such Selling Stockholders to the Underwriters and (ii) the
fees and disbursements of their respective counsel, accountants and other
advisors.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
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(a) As a condition of the obligation of the Underwriters to underwrite and
pay for the Shares, the Company and, to the best of their knowledge, the Selling
Stockholders jointly and severally represent and warrant to, and agree with,
each of the several Underwriters as follows:
REGISTRATION STATEMENT AND PROSPECTUS
(i) The Original Registration Statement, including the Preliminary
Prospectus, has been filed by the Company with the Commission under the
Securities Act, and one or more amendments to such Registration Statement may
have been so filed. After the execution of this Agreement, the Company will
file with the Commission either (x) if such Registration Statement, as it may
have been amended, has been declared by the Commission to be effective under the
Securities Act, either (I) if the Company relies on Rule 434 under the
Securities Act, a Term Sheet relating to the Shares that shall identify the
Preliminary Prospectus that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Securities Act or
(II) if the Company does not rely on Rule 434 under the Securities Act, a
prospectus in the form most recently included in an amendment to such
Registration Statement (or, if no such amendment shall have been filed, in such
Registration Statement), with such changes or insertions as are required by Rule
430A under the Securities Act or permitted by Rule 424(b) under the Securities
Act, and in the case of either clause (I) or (II) of this sentence, as have been
provided to and approved by the Representatives prior to the execution of this
Agreement, or (y) if such Registration Statement, as it may have been amended,
has not been declared by the Commission to be effective under the Securities
Act, an amendment to such Registration Statement, including a form of
prospectus, a copy of which amendment has been furnished to and approved by
the Representatives prior
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to the execution of this Agreement. The Company may also file a Rule 462(b)
Registration Statement with the Commission for the purpose of registering
certain additional Shares, which registration shall be effective upon filing
with the Commission.
(ii) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary Prospectus was
filed with the Commission, it (x) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of, the Securities Act and the rules and regulations of the
Commission thereunder and (y) did not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto was or is
declared effective, it (I) contained or will contain all statements required to
be stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (II) did not or will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. When the Prospectus or any Term Sheet that is a part thereof or any
amendment or supplement to the Prospectus is filed with the Commission pursuant
to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement or the amendment
thereto containing the Prospectus or such amendment or supplement to the
Prospectus was or is declared effective) and on the Closing Date, the
Prospectus, as amended or supplemented at any such time, (A) contained or will
contain all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements of, the
Securities Act and the rules and regulations of the Commission thereunder and
(B) did not or will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (ii) do not apply to statements or
omissions made in any Preliminary Prospectus, the Registration Statement or any
amendment thereto or the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein.
(iii) If the Company has elected to rely on Rule 462(b) and the Rule
462(b) Registration Statement is not effective, (x) the Company will file a Rule
462(b) Registration Statement in compliance with, and that is effective upon
filing pursuant to, Rule 462(b) and (y) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement, in compliance with Rule
111 under the Securities Act, or the Commission has received payment of such
filing fee.
(iv) If the Company has elected to rely on Rule 434 under the
Securities Act, the Prospectus is not "materially different," as such term is
used in Rule 434, from the prospectus included in the Registration Statement at
the time of its effectiveness or an effective post-effective amendment thereto
(including such information that is permitted to be omitted pursuant to Rule
430A under the Securities Act);
(v) The Company and the Selling Stockholders have not distributed and,
prior to the later of (x) any Closing Date and (y) the completion of the
distribution of the Shares, will not distribute any offering material in
connection with the Offering other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto.
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THE SHARES
(vi) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable, have been issued in compliance with all
applicable federal and state securities laws and were not issued in violation of
or subject to any preemptive rights or other rights to subscribe for or purchase
such securities. The Shares have been duly authorized by all necessary
corporate action of the Company and, after payment therefor in accordance
herewith, will be validly issued, fully paid and nonassessable at the Closing
Date. No holders of outstanding shares of capital stock of the Company are
entitled as such to any preemptive or other rights to subscribe for any of the
Shares, and no holder of securities of the Company has any right which has not
been fully exercised or waived to require the Company to register the offer or
sale of any securities owned by such holder under the Securities Act in the
Offering contemplated by this Agreement.
(vii) Except as disclosed in the Prospectus, there are no outstanding
(x) securities or obligations of the Company or any of its subsidiaries
convertible into or exchangeable for any capital stock of the Company or any
such subsidiary, (y) warrants, rights or options to subscribe for or purchase
from the Company or any such subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (z) obligations of the
Company or any such subsidiary to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(viii) Except for the shares of capital stock of each of the
subsidiaries owned by the Company and its subsidiaries, neither the Company nor
any such subsidiary owns any shares of stock or any other equity securities of
any corporation or has any equity interest in any firm, partnership, association
or other entity, except as described in or contemplated by the Prospectus. The
Company does not have any significant subsidiaries, as defined in paragraph (w)
of Rule 1-02 of Regulation S-X promulgated by the Commission.
LISTING
(ix) All of the Shares have been duly authorized and accepted for
quotation on the Nasdaq National Market, subject to official notice of issuance.
MARKET MANIPULATION
(x) Neither the Company nor any of its affiliates, nor any person
acting on behalf of any of them has, directly or indirectly, (x) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares, or (y) since the filing of the Original Registration Statement (I) sold,
bid for, purchased, or paid anyone any compensation for soliciting purchases of,
the Shares or (II) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company; provided,
however, that this paragraph shall not be construed to apply to the
Underwriters.
CORPORATE POWER AND AUTHORITY
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(xi) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the law of its jurisdiction of
incorporation with full power and authority to own, lease and operate its
properties and assets and conduct its business as described in the Prospectus,
is duly qualified to transact business as a foreign corporation and is in good
standing in each jurisdiction in which its ownership, leasing or operation of
its properties or assets or the conduct of its business requires such
qualification, except where the failure to be so qualified does not amount to a
material liability or disability to the Company and its subsidiaries, taken as a
whole, and has full power and authority to execute and perform its obligations
under this Agreement; each subsidiary of the Company is a corporation duly
incorporated and validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and is duly qualified to transact
business and is in good standing in each jurisdiction in which its ownership,
leasing or operation of its properties or assets or the conduct of its business
requires such qualification, except where the failure to be so qualified does
not amount to a material liability or disability to the Company and its
subsidiaries, taken as a whole, and each has full power and authority to own,
lease and operate its properties and assets and conduct its business as
described in the Registration Statement and the Prospectus; all of the issued
and outstanding shares of capital stock of each of the Company's subsidiaries
have been duly authorized and validly issued, are fully paid and nonassessable
and are owned beneficially by the Company free and clear of any security
interests, liens, encumbrances, equities or claims.
(xii) The execution and delivery of the Agreement and Plan of Merger
dated as of __________, 1998 (the "Merger Agreement") between Brio Technology,
Inc., a California corporation (the "California Corporation"), and the Company,
effecting the reincorporation of the California Corporation under the laws of
the State of Delaware, was duly authorized by all necessary corporate action on
the part of each of the California Corporation and the Company. Each of the
California Corporation and the Company had all corporate power and authority to
execute and deliver the Merger Agreement, to file the Merger Agreement with the
Secretary of State of California and the Secretary of State of Delaware and to
consummate the reincorporation contemplated by the Merger Agreement, and the
Merger Agreement at the time of execution and filing constituted a valid and
binding obligation of each of the California Corporation and the Company.
(xiii) The execution and delivery of this Agreement and the issuance
and sale of the Shares have been duly authorized by all necessary corporate
action of the Company, and this Agreement has been duly executed and delivered
by the Company and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (i) as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws, (ii) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally and (iii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies.
(xiv) The issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of
the other transactions herein contemplated do not (x) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained or made or such as
may be required by the securities or Blue Sky laws of the various states of
the United States of America and other U.S. jurisdictions in connection with
the offer and sale of the Shares by the Underwriters, or (y) conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which
-12-
the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or any of their respective properties are bound, or
the charter documents or by-laws of the Company or any of its subsidiaries, or
any statute or any judgment, decree, order, rule or regulation of any court or
other governmental authority or any arbitrator applicable to the Company or
any of its subsidiaries.
(xv) The Company is not, and will conduct its operations in a manner
so that it continues not to be, an "investment company" and, after giving effect
to the Offering and the application of the proceeds therefrom, will not be an
"investment company," as such term is defined in the Investment Company Act of
1940, as amended (the "1940 Act").
TITLE, LICENSES AND CONSENTS
(xvi) The Company and each of its subsidiaries own no real property
and have marketable title to all personal property owned by each of them, in
each case free and clear of any security interests, liens, encumbrances,
equities, claims and other defects, except such as do not materially and
adversely affect the value of such property and do not interfere with the use
made or proposed to be made of such property by the Company or such
subsidiary, and any real property and buildings held under lease by the
Company or any such subsidiary are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or such subsidiary, in each case except as described
in or contemplated by the Prospectus.
(xvii) Except as disclosed in the Prospectus, the Company and each of
its subsidiaries own or possess, or can acquired on reasonable terms, adequate
licenses or other rights to use all patents, patent rights inventions, trade
secrets, copyrights, trademarks, service marks, trade names, technology and
know-how currently employed or proposed to be employed by them in connection
with their business as described in the Prospectus, the Company is not
obligated to pay a royalty, grant a license, or provide other consideration to
any third party in connection with its patents, copyrights, trademarks,
service marks, trade names, or technology other than as disclosed in the
Prospectus, and, except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries has received any notice of infringement or
conflict with (and neither the Company nor any of its subsidiaries knows of
any infringement or conflict with) asserted rights of others with respect to
any patents, patent rights, inventions, trade secrets, copyrights, trademarks,
service marks, trade names, technology or know-how which could result in any
material adverse effect upon the Company and its subsidiaries, taken as a
whole; and, except as disclosed in the Prospectus, the discoveries,
inventions, products or processes of the Company and its subsidiaries referred
to in the Prospectus do not, to the best knowledge of the Company or any of
its subsidiaries, infringe or conflict with any right or patent of any third
party, or any discovery, invention, product or process which is the subject of
a patent application filed by any third party, known to the Company or any of
its subsidiaries which could have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(xviii) The Company and its subsidiaries possess all consents,
licenses, certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or modification
of any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a materially adverse effect on or constitute a materially adverse change
in, or constitute a development involving a prospective
-13-
materially adverse effect on or change in, the condition (financial or
otherwise), earnings, properties, business affairs or business prospects, net
worth or results of operations of the Company and its subsidiaries, taken as a
whole, except as described in or contemplated by the Prospectus.
FINANCIAL STATEMENTS
(xix) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectus, are
independent public accountants as required by the Securities Act and the
applicable rules and regulations thereunder.
(xx) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Registration Statement
and the Prospectus were prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout the periods
involved (except as otherwise noted therein) and they present fairly the
financial condition of the Company as of the dates at which they were prepared
and the results of operations of the Company in respect of the periods for which
they were prepared.
INTERNAL ACCOUNTING CONTROLS
(xxi) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (w)
transactions are executed in accordance with management's general or specific
authorizations; (x) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to maintain asset
accountability; (y) access to assets is permitted only in accordance with
management's general or specific authorization; and (z) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
LITIGATION
(xxii) No legal or governmental proceedings are pending or, to the
best knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which the property of the Company or any of its
subsidiaries is subject that are required to be described in the Registration
Statement or the Prospectus and are not described therein; and no statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described therein or filed as required.
-14-
DIVIDENDS AND DISTRIBUTIONS
(xxiii) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, making any
other distribution on such subsidiary's capital stock, repaying to the Company
any loans or advances to such subsidiary from the Company or transferring any
of such subsidiary's property or assets to the Company or any other subsidiary
of the Company, and the Company is not currently prohibited, directly or
indirectly, from paying any dividends or making any other distribution on its
capital stock, in each case except as described in or contemplated by the
Prospectus.
TAXES
(xxiv) The Company has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
materially adverse effect on the Company and its subsidiaries, taken as a
whole) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as described in or
contemplated by the Prospectus.
INSURANCE
(xxv) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which
they are engaged; neither the Company nor any such subsidiary has been refused
any insurance coverage sought or applied for; and neither the Company nor any
such subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect the
condition (financial or otherwise), earnings, properties, business affairs or
business prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus.
PENSION AND LABOR
(xxvi) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (x) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (y) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan" for
which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
-15-
(xxvii) No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the best knowledge of the Company, is
threatened or imminent that could have a materially adverse effect on or
constitute a materially adverse change in, or constitute a development
involving a prospective materially adverse effect on or change in, the
condition (financial or otherwise), properties, management, earnings, business
affairs or business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
ENVIRONMENTAL
(xxviii) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to occupational
safety and health or to the storage, handling or transportation of hazardous
or toxic materials, and the Company and its subsidiaries have received all
permits, licenses or other approvals required of them under applicable federal
and state occupational safety and health and environmental laws and
regulations to conduct their respective businesses, and the Company and each
such subsidiary is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or regulation,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
which would not, singly or in the aggregate, have a materially adverse effect
on or constitute a materially adverse change in, or constitute a development
involving a prospective materially adverse effect on or change in, the
condition (financial or otherwise), earnings, properties, business affairs or
business prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus.
OTHER AGREEMENTS
(xxix) No default by the Company, or to the Company's knowledge, by
another party, exists, and no event has occurred which, with notice or lapse of
time or both, would constitute a default by the Company, or to the Company's
knowledge, by another party, in the due performance and observance of any term,
covenant or condition of any material indenture, mortgage, deed of trust, lease
or other material agreement or instrument to which the Company is a party or by
which the Company or any of its properties is bound.
LOCK-UP AGREEMENTS
(xxx) Except as disclosed in the Prospectus and except for the
Shares, all outstanding shares of Common Stock, and all securities convertible
into or exercisable or exchangeable for Common Stock, are subject to valid and
binding agreements (collectively, the "Lock-up Agreements") that restrict the
holders thereof from selling, making any short sale of, granting any option
for the purchase of, or otherwise transferring or disposing of, any of such
shares of Common Stock, or any such securities convertible into or exercisable
or exchangeable for Common Stock, for a period of 180 days after the date of
the Prospectus without the prior written consent of the Company or Deutsche
Xxxxxx Xxxxxxxx Inc.
(xxxi) The Company (i) has notified each holder of a currently
outstanding option issued under the Option Plan and each person who has acquired
shares of Common Stock pursuant to the exercise of any option granted under the
Option Plan that pursuant to the terms of the Option Plan, none of such options
or shares may be sold or otherwise transferred or disposed of for a period of
180 days after the date of the initial public
-16-
offering of the Shares and (ii) has imposed a stop-transfer instruction with
the Company's transfer agent in order to enforce the foregoing lock-up
provision imposed pursuant to the Option Plan.
(xxxii) The Company (i) has notified each stockholder who is party
to the Amended and Restated Rights Agreement dated June 27, 1997, the Amended
and Restated Stock Restriction Agreement dated June 27, 1997 or the Common
Stock Purchase Warrant dated ___________, (collectively, the "Rights
Agreements"), that pursuant to the terms of the Rights Agreements, none of the
shares of the Company's capital stock held by such stockholder may be sold or
otherwise transferred or disposed of for a period of 180 days after the date
of the initial public offering of the Shares and (ii) has imposed a stop-
transfer instruction with the Company's transfer agent in order to enforce the
foregoing lock-up provision imposed pursuant to the Rights Agreements.
ABSENCE OF MATERIALLY ADVERSE CHANGE
(xxxiii) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (w) the Company and
its subsidiaries, taken as a whole, have not incurred any material liability
or obligation, direct or contingent, nor entered into any material transaction
not in the ordinary course of business; (x) the Company has not purchase any
of its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; and (y) there has
not been any material change in the capital stock, short-term or long-term
debt of the Company and its subsidiaries, taken as a whole, except in each
case as described in or contemplated by the Prospectus; and (z) there has not
been any material loss or interference with the businesses or properties or
the Company and its subsidiaries, taken as a whole, from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, and there has
been no materially adverse change (including, without limitation, a change in
management or control), or development involving a prospective materially
adverse change, in the condition (financial or otherwise), management,
earnings, property, business affairs or business prospects, stockholders'
equity, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, other than as described in or contemplated by
the Prospectus.
(xxxiv) No receiver or liquidator (or similar person) has been
appointed in respect of the Company or any subsidiary of the Company or in
respect of any part of the assets of the Company or any subsidiary of the
Company; no resolution, order of any court, regulatory body, governmental body
or otherwise, or petition or application for an order, has been passed, made
or presented for the winding up of the Company or any subsidiary of the
Company or for the protection of the Company or any such subsidiary from its
creditors; and the Company has not, and no subsidiary of the Company has,
stopped or suspended payments of its debts, become unable to pay its debts or
otherwise become insolvent.
(b) As a further condition of the obligation of the Underwriters to
underwrite and pay for the Shares, each Selling Stockholder, severally and not
jointly, represents and warrants to, and agrees with, each of the several
Underwriters that:
(i) Such Selling Stockholder has full power to enter into this
Agreement and to sell, assign, transfer and deliver to the Underwriters the
Shares to be sold by such Selling Stockholder hereunder in
-17-
accordance with the terms of this Agreement; and this Agreement has been duly
executed and delivered by such Selling Stockholder.
(ii) Such Selling Stockholder has duly executed and delivered a power
of attorney and custody agreement (with respect to such Selling Stockholder, the
"Power-of-Attorney" and the "Custody Agreement," respectively), each in the form
heretofore delivered to the Representatives, appointing _________________as such
Selling Stockholder's attorney-in-fact (the "Attorney-in-Fact") with authority
to execute, deliver and perform this Agreement on behalf of such Selling
Stockholder and appointing __________________, as custodian thereunder (the
"Custodian"). Certificates in negotiable form, endorsed in blank or accompanied
by blank stock powers duly executed, with signatures appropriately guaranteed,
representing the Shares to be sold by such Selling Stockholder hereunder have
been deposited with the Custodian pursuant to the Custody Agreement for the
purpose of delivery pursuant to this Agreement. Such Selling Stockholder has
full power to enter into the Custody Agreement and the Power-of-Attorney and to
perform its obligations under the Custody Agreement. Assuming due
authorization, execution and delivery by the Custodian, the Power-of-Attorney
and Custody Agreement are the legal, valid, binding and enforceable instruments
of such Selling Stockholder. Such Selling Stockholder agrees that each of the
Shares represented by the certificates on deposit with the Custodian is subject
to the interests of the Underwriters hereunder, that the arrangements made for
such custody, the appointment of the Attorney-in-Fact and the right, power and
authority of the Attorney-in-Fact to execute and deliver this Agreement, to
agree on the price at which the Shares (including such Selling Stockholder's
Shares) are to be sold to the Underwriters, and to carry out the terms of this
Agreement, are to that extent irrevocable and that the obligations of such
Selling Stockholder hereunder shall not be terminated, except as provided in
this Agreement or the Custody Agreement, by any act of such Selling Stockholder,
by operation of law or otherwise, whether in the case of any individual Selling
Stockholder by the death or incapacity of such Selling Stockholder, in the case
of a trust or estate by the death of the trustee or trustees or the executor or
executors or the termination of such trust or estate, or in the case of a
corporate or partnership Selling Stockholder by its liquidation or dissolution
or by the occurrence of any other event. If any individual Selling Stockholder,
trustee or executor should die or become incapacitated or any such trust should
be terminated, or if any corporate or partnership Selling Stockholder shall
liquidate or dissolve, or if any other event should occur, before the delivery
of such Shares hereunder, the certificates for such Shares deposited with the
Custodian shall be delivered by the Custodian in accordance with the respective
terms and conditions of this Agreement as if such death, incapacity,
termination, liquidation or dissolution or other event had not occurred,
regardless of whether or not the Custodian or the Attorney-in-Fact shall have
received notice thereof.
(iii) Such Selling Stockholder is the lawful owner of the Shares to
be sold by such Selling Stockholder hereunder and upon sale and delivery of,
and payment for, such Shares, as provided herein, such Selling Stockholder
will convey good and marketable title to such Shares, free and clear of any
security interests, liens, encumbrances, equities, claims or other defects
(assuming the Underwriters are acquiring the Shares in good faith and without
notice of any adverse claim).
(iv) Neither such Selling Stockholder nor any person acting on behalf
of it has, directly or indirectly, (x) taken any action designed to cause or to
result in, or that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares or (y) since the
filing of the Original Registration Statement (I) sold, bid for, purchased, or
paid anyone any compensation for soliciting purchases of, the Shares or (II)
paid or agreed to pay
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to any person any compensation for soliciting another to purchase any other
securities of the Company (except for the sale of Shares by the Selling
Stockholders under this Agreement).
(v) Such Selling Stockholder has reviewed the Prospectus and the
Registration Statement, and the information regarding such Selling Stockholder
set forth therein under the caption "Principal and Selling Stockholders" is
complete and accurate.
(vi) The sale by such Selling Stockholder of Shares pursuant hereto
is not prompted by any adverse information concerning the Company or its
subsidiaries that is not set forth in the Registration Statement or the
Prospectus.
(vii) The sale of the Shares to the Underwriters by such Selling
Stockholder pursuant to this Agreement, the compliance by such Selling
Stockholder with the other provisions of this Agreement, the Custody Agreement
and the consummation of the other transactions herein contemplated do not (i)
require the consent, approval, authorization, registration or qualification of
or with any governmental authority, except such as have been obtained, such as
may be required under state securities or blue sky laws and, if the registration
statement filed with respect to the Shares (as amended) is not effective under
the Securities Act as of the time of execution hereof, such as may be required
(and shall be obtained as provided in this Agreement) under the Securities Act,
or (ii) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which such Selling Stockholder
is a party or by which such Selling Stockholder or any of such Selling
Stockholder's properties are bound, or any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority or any
arbitrator applicable to such Selling Stockholder.
(c) The above representations and warranties shall be deemed to be repeated
at each Closing, and all references therein to the Shares and the Closing Date
shall be deemed to refer to the Firm Shares or the Option Shares and the First
Closing Date or the applicable Option Closing Date, each as applicable.
SECTION 6. INDEMNITY.
---------
(a) The Company and each Selling Stockholder jointly and severally agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which such Underwriter or such controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company or such Selling Stockholder in Section 5 hereof,
(ii) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or
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(iii) the omission or alleged omission to state in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other costs or expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Company and such Selling Stockholder will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein; provided further, however, that no Selling Stockholder will be liable
to any Underwriter or any person controlling such Underwriter with respect to
any such untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus that is corrected in the Prospectus
(or any amendment or supplement thereto) if the person asserting any such loss,
claim, damage or liability purchased Shares from such Underwriter but was not
sent or given a copy of the Prospectus (as amended or supplemented) in any case
where such delivery of the Prospectus (as amended or supplemented) was required
by the Securities Act, unless such failure to deliver the Prospectus (as amended
or supplemented) was a result of noncompliance by the Company with Section 3
hereof. Notwithstanding any other provision of this Section 6, no Selling
Stockholder shall be liable for indemnification hereunder in an aggregate amount
exceeding the net proceeds (before deducting expenses) received by such Selling
Stockholder in respect of the Shares sold by such Selling Stockholder to the
Underwriters pursuant to this Agreement. In addition, the Company and each of
the Underwriters agrees with each of the Selling Stockholders that any claim of
such Underwriter against such Selling Stockholders for indemnification,
reimbursement or advancement of expenses pursuant to this Section 6 or for
breach of any representation or warranty in Section 5 hereof shall first be
sought by such Underwriter to be satisfied in full by the Company and shall be
satisfied by the Founders only to the extent that such claim has not been
satisfied in full by the Company for any reason within the 30-day period
following the date requested for payment in accordance with the terms of this
Agreement. The Company and the Selling Stockholders may agree, as among
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of such liability for which they each
shall be responsible, including, without limitation, allocating between the
Company and the Selling Stockholders the liability resulting in a breach of the
representations and warranties of the Company and the Selling Stockholders
hereunder. The indemnity provided for in this Section 6 shall be in addition to
any liability which the Company and such Selling Stockholder may otherwise have.
Neither the Company nor any Selling Stockholder will, without the prior written
consent of the Representatives, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not any
such Representatives or any person who controls any such Representatives is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement, each Selling Stockholder and each person, if any, who
controls the Company or such Selling Stockholder within the meaning of Section
15 of the
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Securities Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities to which the Company or any such director or officer of
the Company, such Selling Stockholder or any such controlling person of the
Company or such Selling Stockholder may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto or (ii) the omission or
the alleged omission to state in the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and, subject to the limitation
set forth immediately preceding this clause, will reimburse, as incurred, any
legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person or such Selling Stockholder or
controlling person of such Selling Stockholder in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or any action in
respect thereof. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to paragraph (a) or (b) of this Section 6, such person (for purposes of
this paragraph (c), the "indemnified party") shall, promptly after receipt by
such party of notice of the commencement of such action, notify the person
against whom such indemnity may be sought (for purposes of this paragraph (c),
the "indemnifying party"), but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 6. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated in writing by the Representatives in
the case of paragraph (a) of this Section 6, representing the indemnified
parties under such paragraph (a) who are parties to such action or
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actions), or (ii) the indemnifying party does not promptly retain counsel
satisfactory to the indemnified party, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they are incurred. After such notice from
the indemnifying party to such indemnified party, the indemnifying party will
not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 6 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, 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 (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the Offering or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative benefits
but also the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that 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 Stockholders on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total proceeds from
the Offering (before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders or the
Underwriters, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company, the
Selling Stockholders and the Underwriters agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Shares purchased by such Underwriter under
this Agreement, less the aggregate amount of any damages that such Underwriter
has otherwise been required to pay in respect of the same or any substantially
similar claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Deutsche Xxxxxx Xxxxxxxx Inc. Master Agreement Among Underwriters. For
purposes of this paragraph (d), each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company or any
Selling Stockholder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, shall have the same rights to contribution as
the Company or such Selling Stockholder, as the case may be.
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SECTION 7. CONDITIONS PRECEDENT.
--------------------
The obligations of the several Underwriters to purchase and pay for the
Shares shall be subject, in the Representatives' sole discretion, to the
accuracy of the representations and warranties of the Company and the Selling
Stockholders contained herein as of the date hereof and as of each Closing Date,
as if made on and as of each Closing Date, to the accuracy of the statements of
the Company's officers and the Selling Stockholders made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective covenants and agreements hereunder and to the
following additional conditions:
(a) (i) If the Original Registration Statement or any amendment thereto
filed prior to the First Closing Date has not been declared effective as of the
time of execution hereof, the Original Registration Statement or such amendment
shall have been declared effective not later than 6:00 P.M. New York City time
on the date of determination of the public offering price, if such determination
occurred at or prior to 4:30 P.M. New York City time on such date, or 12:00 Noon
New York City time on the business day following the day on which the public
offering price was determined, if such determination occurred after 4:30 P.M.
New York City time on such date, and (ii) if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have been
declared effective not later than the time confirmations are sent or given as
specified by Rule 462(b)(2), or such later time and date as shall have been
consented to by the Representatives; if required, the Prospectus or any Term
Sheet that constitutes a part thereof and any amendment or supplement thereto
shall have been filed with the Commission in the manner and within the time
period required by Rules 434 and 424(b) under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received a legal opinion from Venture
Law Group, counsel for the Company, dated the Closing Date, to the effect that:
(i) the Registration Statement is effective under the Securities Act;
any required filing of the Prospectus, or any Term Sheet that constitutes a part
thereof, pursuant to Rules 434 and 424(b) has been made in the manner and within
the time period required by Rules 434 and 424(b); such counsel has been advised
by the Commission that no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued and, to the best
knowledge of such counsel, no proceedings for that purpose are pending or
threatened by the Commission;
(ii) the Original Registration Statement and each amendment thereto,
any Rule 462(b) Registration Statement and the Prospectus (in each case, other
than the financial statements and other financial information contained therein,
as to which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission thereunder;
(iii) if the Company elects to rely on Rule 434 under the Securities
Act, the Prospectus is not "materially different," as such term is used in Rule
434, from the prospectus included in the Registration Statement
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at the time of its effectiveness or an effective post-effective amendment
thereto (including such information that is permitted to be omitted pursuant
to Rule 430A under the Securities Act);
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable, and except as set forth in the Prospectus, the
Company does not have outstanding any options to purchase, or any preemptive
rights or, to the best knowledge of such counsel, other rights to subscribe for
or to purchase, any securities or obligations 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 all outstanding
shares of capital stock and options and other rights to acquire capital stock
have been issued in compliance with all applicable federal and state securities
laws and were not issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities; the Shares have been duly
authorized by all necessary corporate action of the Company and, when issued and
delivered to and paid for by the Underwriters pursuant to this Agreement, will
be validly issued, fully paid and nonassessable;
(v) no holders of outstanding shares of capital stock of the Company
are entitled as such to any preemptive or, to the best of such counsel's
knowledge, other rights to subscribe for any of the Shares; and no holder of
securities of the Company has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of any securities
owned by such holder under the Securities Act in the Offering contemplated by
this Agreement;
(vi) all of the Shares have been duly authorized and accepted for
quotation on the Nasdaq National Market, subject to official notice of issuance;
(vii) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of all other jurisdictions
where the ownership, leasing or operation of its properties or assets or the
conduct of its business requires such qualification, except where the failure
to be so qualified does not amount to a material liability or disability to
the Company and its subsidiaries, taken as a whole; the Company has full power
and authority to own, lease and operate its properties and assets and conduct
its business as described in the Registration Statement and the Prospectus,
and the Company has full power and authority to enter into this Agreement and
to carry out all the terms and provisions hereof to be carried out by it;
(viii) the execution and delivery of the Merger Agreement, effecting
the reincorporation of the California Corporation under the laws of the State
of Delaware, was duly authorized by all necessary corporate action on the part
of each of the California Corporation and the Company;
(ix) the statements set forth under the heading "Description of
Capital Stock" in the Prospectus, insofar as such statements purport to
summarize certain provisions of the capital stock of the Company, provide a fair
summary of such provisions; and the statements set forth under the headings
"Risk Factors -- Control by Existing Stockholders," "Risk Factors -- Anti-
Takeover Provisions," "Dividend Policy," "Management -- Employment Agreements,"
"Management -- Stock Plans," "Management -- Limitation of Liability and
Indemnification Matters," "Certain Transactions" and "Shares Eligible" in the
Prospectus, insofar as such
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statements constitute a summary of the legal matters, documents or proceedings
referred to therein, have been reviewed by such counsel and fairly present the
information called for with respect to such legal matters, documents and
proceedings in all material respects as required by the Securities Act and the
rules and regulations thereunder;
(x) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company, and this Agreement
has been duly executed and delivered by the Company; the issuance, offering and
sale of the Shares to the Underwriters by the Company pursuant to this
Agreement, the compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions herein contemplated do
not (x) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained or made (and specified in such opinion) or such as may be required by
the securities or Blue Sky laws of the various states of the United States of
America and other U.S. jurisdictions in connection with the offer and sale of
the Shares by the Underwriters, or (y) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, lease or other agreement or instrument,
known to such counsel, to which the Company is a party or by which the Company
or any of its properties are bound, or the charter documents or by-laws of the
Company or any of its subsidiaries, or any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority or any
arbitrator known to such counsel and applicable to the Company;
(xi) the Company is not an "investment company" and, after giving
effect to the Offering and the application of the proceeds therefrom, will not
be an "investment company", as such term is defined in the 1940 Act; and
(xii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company is a party or to which
the property of the Company is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described therein or filed
as required.
In addition, such counsel shall state that in addition to rendering legal
advice and assistance to the Company in the course of the preparation of the
Registration Statement and the Prospectus, involving, among other things,
discussions and inquiries concerning various legal matters and the review of
certain corporate records, documents and proceedings (in addition to those
described in paragraphs (i) and (__) above), such counsel also participated in
conferences with certain officers and other representatives of the Company,
including its independent auditors and with the Underwriters and their counsel,
at which the contents of the Registration Statement and the Prospectus and
related matters were discussed; provided such counsel may state that they have
not independently verified the accuracy, completeness or fairness of the
information contained in the Registration Statement and Prospectus.
Such counsel shall also state that based upon its participation as
described in the preceding paragraph, such counsel has no reason to believe that
(except for the description of the Business Objects, S.A. litigation, financial
statements, and schedules and other financial and statistical data derived from
the financial statements,
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as to which such counsel expresses no belief) the Registration Statement, as
of its effective date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that (except for the description
of the Business Objects, S.A. litigation, financial statements, and schedules
and other financial and statistical data derived from the financial
statements, as to which such counsel expresses no belief) the Prospectus, as
of its date and as of the Closing Date, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than the States of California and
Delaware or the United States, to the extent satisfactory in form and scope to
counsel for the Underwriters, upon the opinion(s) of other counsel. The
foregoing opinion shall also state that the Underwriters are justified in
relying upon such opinion(s) of other counsel, and copies of such opinion shall
be delivered to the Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion. The opinions of issuer's counsel described herein shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(c) The Representatives shall have received a legal opinion from Xxxx,
Gotshal & Xxxxxx LLP, special patent counsel for the Company, dated the Closing
date, to the effect that:
(i) the statements set forth under the headings "Risk Factors --
Litigation with Business Objects, S.A." and "Business --Legal Proceedings" in
the Registration Statement and the Prospectus, insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred to
therein, have been reviewed by such counsel and fairly present the information
called for with respect to such legal matters, documents and proceedings in all
material respects as required by the Securities Act and the rules and
regulations thereunder, and such counsel has no reason to believe that such
information, (i) as of the effective date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make such information not misleading and (ii) as of the date of
such opinion, included or includes any untrue statement of material fact or
omitted or omits to state a material fact necessary in order to make such
information, in light of the circumstances in which they were made, not
misleading.
(d) The Representatives shall have received a legal opinion from Venture
Law Group, counsel for the Selling Stockholders, dated the Closing Date, to the
effect that:
(i) each of the Selling Stockholders has valid title to the Shares to
be sold by such Selling Stockholder, and such Selling Stockholder has full power
to enter into this Agreement, the Custody Agreement and the Power-of-Attorney
and to sell, assign, transfer and deliver the Shares being sold by such Selling
Stockholder hereunder in the manner provided in this Agreement and to perform
its obligations under the Custody Agreement; this Agreement, the Custody
Agreement and the Power-of-Attorney have been duly executed and delivered by
each Selling Stockholder; assuming due authorization, execution and delivery by
the Custodian, the Custody Agreement and the Power-of-Attorney are the legal,
valid, binding and enforceable instruments of such
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Selling Stockholder, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law);
(ii) the delivery by each Selling Stockholder to the several
Underwriters of certificates for the Shares being sold hereunder by such Selling
Stockholder against payment therefor as provided herein, will convey good and
marketable title to such Shares to the several Underwriters, free and clear of
all security interests, liens, encumbrances, equities, claims or other defects;
(iii) the sale of the Shares to the Underwriters by such Selling
Stockholder pursuant to this Agreement, the compliance by such Selling
Stockholder with the other provisions of this Agreement and the Custody
Agreement and the consummation of the other transactions herein contemplated do
not (x) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained and such as may be required under state securities or blue sky laws, or
(y) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which such Selling Stockholder
is a party or by which such Selling Stockholder or any of properties are bound,
or any statute or any judgment, decree, order, rule or regulation of any court
or other governmental authority or any arbitrator applicable to such Selling
Stockholder.
In rendering such opinion, such counsel may rely, as to matters of fact, to
the extent such counsel deems proper, on certificates of the Selling
Stockholders and public officials and, as to matters involving the application
of laws of any jurisdiction other than the States of California or Delaware or
the United States, to the extent satisfactory in form and scope to counsel for
the Underwriters, upon the opinion(s) of other counsel. The foregoing opinion
shall also state that the Underwriters are justified in relying upon such
opinion(s) of other counsel, and copies of such opinion(s) shall be delivered to
the Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (d) shall include any amendment or supplement thereto at the date of
such opinion.
(e) The Representatives shall have received a legal opinion from Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the Underwriters, dated the Closing Date,
covering the issuance and sale of the Shares, the Registration Statement and the
Prospectus, and such other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(f) The Representatives shall have received from Xxxxxx Xxxxxxxx & Co. a
letter or letters dated, respectively, the date hereof and the Closing Date, in
form and substance satisfactory to the Representatives, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date shall use a
--------
"cut-off date" not earlier than the date hereof.
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(g) The Company shall have furnished or caused to be furnished to the
Underwriters at the Closing a certificate of its Chairman of the Board, its
President or its Chief Executive Officer and its Chief Financial Officer
satisfactory to the Underwriters to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Closing Date; the
Registration Statement, as of its effective date, did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Prospectus, as amended or supplemented as of the Closing Date, does not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company has
performed all covenants and agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto has been issued, and no proceedings for that
purpose have been instituted or threatened or, to the best of the Company's
knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not been any
materially adverse change (including, without limitation, a change in management
or control), or development involving a prospective materially adverse change,
in the condition (financial or otherwise), management, earnings, properties,
business affairs or business prospects, stockholders' equity, net worth or
results of operations of the Company or any of its subsidiaries, except in each
case as described in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto).
(h) The Representatives shall have received from each Selling Stockholder a
certificate, signed by such Selling Stockholder, dated the Closing Date, to the
effect that:
(i) the representations and warranties of such Selling Stockholder in
this Agreement are true and correct as if made on and as of the Closing Date;
(ii) the Registration Statement, as amended as of the Closing Date,
does not include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Closing Date, does not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(iii) such Selling Stockholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior to the Closing
Date.
(i) The Representatives shall have received from each person who is a
director or officer of the Company and substantially all holders of the
outstanding shares of Common Stock an agreement dated on or
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before the date of this Agreement to the effect that such person will not
publicly announce any intention to and will not, without the prior written
consent of the Representatives on behalf of the Underwriters, (i) offer,
pledge, sell, offer to sell, contract to sell, sell any option or contract to
purchase, purchase any option to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any of
the shares of Common Stock or any securities convertible into, or exercisable
or exchangeable for, Common Stock, or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, shares of Common Stock
(whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of shares of Common Stock or such other securities, in
cash or otherwise), in each case, beneficially owned (within the meaning of
Rule 13d-3 under the Exchange Act) or otherwise controlled by such person on
the date hereof or hereafter acquired, for a period beginning from the date
hereof and continuing to and including the date 180 days after the date of the
Prospectus; provided, however, that such person may, without the prior written
consent of the Representatives on behalf of the Underwriters, transfer shares
of Common Stock or such other securities to members of such person's immediate
family or to trusts for the benefit of members of such person's immediate
family or in connection with bona fide gifts, provided that any transferee
agrees to the transfer restrictions described above.
(j) Prior to the commencement of the Offering, the Company shall have made
an application for the quotation of the Shares on the Nasdaq National Market and
the Shares shall have been included for trading on the Nasdaq National Market,
subject to official notice of issuance.
(k) Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(l) On or before the Closing Date, the Representatives and counsel for the
Underwriters shall have received such further certificates, documents or other
information as they may have reasonably requested from the Company and the
Selling Stockholders.
(m) All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
satisfactory in all material respects to the Representatives and counsel for the
Underwriters. The Company and the Selling Stockholders shall furnish to the
Representatives such conformed copies of such opinions, certificates, letters
and documents in such quantities as the Representatives and counsel for the
Underwriters shall reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Shares shall be subject, in their discretion, to each of the foregoing
conditions to purchase the Shares, except that all references therein to the
Shares and the Closing Date shall be deemed to refer to the Firm Shares or the
Option Shares and the First Closing Date or the related Option Closing Date,
each as applicable.
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SECTION 8. DEFAULT OF UNDERWRITERS.
-----------------------
If, at the any Closing, any one or more of the Underwriters shall fail or
refuse to purchase Shares that it has or they have agreed to purchase hereunder
on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is ten
percent or less of the aggregate number of the Shares to be purchased on such
date, the other Underwriters may make arrangements satisfactory to the
Representatives for the purchase of such Shares by other persons (who may
include one or more of the non-defaulting Underwriters, including the
Representatives), but if no such arrangements are made by the First Closing Date
or the related Option Closing Date, as the case may be, the other Underwriters
shall be obligated severally in the proportions that the number of Firm Shares
set forth opposite their respective names in Schedule 1 hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as the Representatives may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, at the
First Closing, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than ten per cent of the aggregate number of Firm Shares
to be purchased, and arrangements satisfactory to the Representatives, the
Company and the Selling Stockholders for the purchase of such Firm Shares are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
any Selling Stockholder. In any such case either the Representatives or the
Company shall have the right to postpone the Closing, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If, at any Option Closing, any Underwriter or Underwriters shall fail
or refuse to purchase Option Shares, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation hereunder to purchase Option Shares
or (ii) purchase not less than the number of Option Shares that such non-
defaulting Underwriters would have been obligated to purchase in the absence of
such default. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 8. Any action taken
under this Section 8 shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
SECTION 9. TERMINATION.
-----------
This Agreement shall be subject to termination in the sole discretion of
the Representatives by notice to the Company and the Selling Stockholders given
prior to any Closing Date in the event that the Company or any Selling
Stockholder shall have failed, refused or been unable to perform all obligations
and satisfy all conditions on its part to be performed or satisfied hereunder at
or prior thereto or, if at or prior to any Closing Date, (a) trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or materially limited or minimum or maximum
prices shall have been established by or on, as the case may be, the Commission
or the New York Stock Exchange or the Nasdaq National Market; (b) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market; (c) a general moratorium on commercial banking
activities shall have been declared by either Federal or New York State
authorities; (d) there shall have occurred (i) an outbreak or escalation of
hostilities between the United States and any foreign power, (ii) an outbreak or
escalation of any other insurrection or armed conflict involving the United
States, or (iii) any other calamity or crisis or materially adverse change in
general economic, political or financial conditions having an effect on the U.S.
financial markets that, in the sole judgment of the
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Representatives, makes it impractical or inadvisable to proceed with the
public offering or the delivery of the Shares as contemplated by the
Registration Statement, as amended as of the date hereof; or (e) the Company
or any of its subsidiaries shall have, in the sole judgment of the
Representatives, sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, or there shall have been any
materially adverse change (including, without limitation, a change in
management or control), or constitute a development involving a prospective
materially adverse change, in the condition (financial or otherwise),
management, earnings, properties, business affairs or business prospects,
stockholders' equity, net worth or results of operations of the Company and
its subsidiaries, taken as a whole, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or supplement
thereto). Termination of this Agreement pursuant to this Section 9 shall be
without liability of any party to any other party except for the liability of
the Company in relation to expenses as provided in Sections 4 and 10 hereof,
the liability of the Selling Stockholders in relation to expenses as provided
in Sections 4 and 10 hereof, the indemnity provided in Section 6 hereof and
any liability arising before or in relation to such termination.
SECTION 10. REIMBURSEMENT OF EXPENSES.
-------------------------
If the sale of the Shares provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in Section 7
hereof is not satisfied or because of any termination pursuant to Section 9
hereof (other than by reason of a default by any of the Underwriters), the
Company shall reimburse the Underwriters, severally upon demand, for all out-of-
pocket expenses (including fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase and sale of the
Shares. If the Company is required to make any payments to the Underwriters
under this Section 10 because of any Selling Stockholder's refusal, inability or
failure to satisfy any condition to the obligations of the Underwriters set
forth in Section 7 hereof, such defaulting Selling Stockholder, pro rata in
proportion to the percentage of Shares to be sold by each, shall reimburse the
Company on demand for all amounts so paid.
SECTION 11. INFORMATION SUPPLIED BY UNDERWRITERS.
------------------------------------
The statements set forth in [the second to last paragraph on the front
cover page and under the heading "Underwriting" in any Preliminary Prospectus or
the Prospectus] (to the extent such statements relate to the Underwriters)
constitute the only information furnished by any Underwriter through the
Representatives to the Company for the purposes of Section 5(a)(ii) and Section
6 hereof. The Underwriters confirm that such statements (to such extent) are
correct.
SECTION 12. NOTICES.
-------
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 the Representatives. Any notice or notification in any form to be
given under this Agreement may be delivered in person or sent by telex,
facsimile or telephone (subject in the case of a communication by telephone to
confirmation by telex or facsimile) addressed to:
in the case of the Company:
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Brio Technology, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Telex: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
in the case of the Underwriters:
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Telex: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
In the case of the Selling Stockholders, any such notice shall be addressed to
the Selling Stockholders at the addresses set forth in Schedule 2 hereto. Any
notice under this Section 12 shall take effect, in the case of delivery, at the
time of delivery and, in the case of telex or facsimile, at the time of
dispatch.
SECTION 13. MISCELLANEOUS.
-------------
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect, the meaning or interpretation of
this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange is open for trading, and (b) "subsidiary" has
the meaning set forth in Rule 405 under the Securities Act.
(d) This Agreement may be executed in any number of counterparts, all of
which, taken together, shall constitute one and the same Agreement and any party
may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding upon
the several Underwriters, the Company, the Selling Stockholders and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that (i)
the indemnities of the Company and the Selling Stockholders contained in Section
6 hereof shall also be for the benefit of any person or persons who control any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and (ii) the indemnities of the Underwriters contained in
Section 6 hereof shall also be for the benefit of the
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directors of the Company, the officers of the Company who have signed the
Registration Statement, each Selling Stockholder and any person or persons who
control the Company or such Selling Stockholder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act. No purchaser of
Shares from any Underwriter shall be deemed a successor because of such
purchase.
(f) The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Company, its officers, the Selling
Stockholders and the several Underwriters 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 (i) any investigation made by or on behalf
of the Company, any of its officers or directors, the Selling Stockholders, any
Underwriter or any controlling person referred to in Section 6 hereof and (ii)
delivery of and payment for the Shares. The respective agreements, covenants,
indemnities and other statements set forth in Sections 4, 6 and 10 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
SECTION 14. SEVERABILITY.
------------
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement would be held in
any jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 15. GOVERNING LAW.
-------------
The validity and interpretation of this Agreement, and the terms and
conditions set forth herein, shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any provisions
relating to conflicts of laws. If the foregoing is in accordance with your
understanding, please sign and return to us eight (8) 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 the Deutsche Xxxxxx Xxxxxxxx Inc. Master Agreement Among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
BRIO TECHNOLOGY, INC.
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By: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
SELLING STOCKHOLDERS
---------------------------- -----------------------------------
XXXXXX X. XXXXXX XXXXXXXXX XXXXXXX
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
DEUTSCHE XXXXXX XXXXXXXX INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
FIRST ALBANY CORPORATION
XXXXX XXXXXXX INC.
By: DEUTSCHE XXXXXX XXXXXXXX INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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SCHEDULE 1
----------
THE UNDERWRITERS
----------------
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Deutsche Xxxxxx Xxxxxxxx Inc.
BancAmerica Xxxxxxxxx Xxxxxxxx
First Albany Corporation
Xxxxx Xxxxxxx Inc.
TOTAL FIRM SHARES:
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SCHEDULE 2
----------
THE SELLING STOCKHOLDERS
------------------------
NAME AND ADDRESS OF NUMBER OF FIRM SHARES NUMBER OF OPTION SHARES
SELLING STOCKHOLDERS TO BE SOLD TO BE SOLD
-------------------- --------------------- -----------------------
Xxxxxx X. Xxxxxx
----------------------
----------------------
----------------------
Xxxxxxxxx Xxxxxxx
----------------------
----------------------
----------------------
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