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UNDERWRITING AGREEMENT
, 2000
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▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
SoundView Technology Group, Inc.
▇▇▇▇▇-▇▇▇▇▇▇ Capital Group, Inc.
As Representatives of the several Underwriters
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
IntraNet Solutions, Inc., a Minnesota corporation (the "Company"), and
the shareholders of the Company named in Schedule B hereto (the "Selling
Shareholders") propose, subject to the terms and conditions stated herein, to
issue and sell, or to sell, as the case may be, to the several Underwriters
named in Schedule A hereto (the "Underwriters"), for which you are acting as
representatives (the "Representatives"), an aggregate of [4,000,000] shares (the
"Firm Shares") of Common Stock, $.01 par value, of the Company (the "Common
Stock"), including [2,500,000] shares to be sold by the Company and [1,500,000]
shares to be sold by the Selling Shareholders. The Company also propose, subject
to the terms and conditions stated herein, to sell to the Underwriters, at the
Underwriters' election, up to an aggregate of [600,000] additional shares of
Common Stock (the "Option Shares"). The Firm Shares and the Option Shares are
herein collectively called the "Shares."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-[ ]) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "Act"). The registration statement, as
amended at the time it was declared effective, including (i) the information (if
any) deemed to be part thereof pursuant to Rule 430A under the Act and (ii) the
documents incorporated by reference in the prospectus contained therein pursuant
to Item 12 of Form S-3 under the Act is herein referred to as the "Registration
Statement." The form of prospectus first filed by the Company with the
Commission pursuant to Rules 424(b) and 430A under the Act is referred to herein
as the "Prospectus." Each preliminary prospectus included in the Registration
Statement prior to the time it became effective or filed with the Commission
pursuant to Rule 424(a) under the Act is referred to herein as a "Preliminary
Prospectus." Copies of the Registration Statement, including all exhibits and
schedules thereto, any amendments thereto and all Preliminary Prospectuses have
been delivered to you.
The Company and the Selling Shareholders hereby confirm their
respective agreements with respect to the purchase of the Shares by the
Underwriters as follows:
1. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) The Registration Statement has been declared
effective under the Act, and no post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. No stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or threatened by the
Commission.
(ii) No order preventing or suspending the use of
any Preliminary Prospectus has been issued by the Commission, nor, to the best
of the Company's knowledge have proceedings for such purpose been instituted,
and each Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and regulations
of the Commission promulgated thereunder (collectively, the "Regulations"), and
did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, the Company makes no representation or warranty
as to information
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contained in or omitted in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives expressly for use in the preparation thereof.
(iii) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the Act
or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
applicable, and rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will confirm in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters through the
Representatives expressly for use in the preparation thereof;
(iv) The Registration Statement conforms, and the
Prospectus and any amendments or supplements thereto will conform, in all
material respects to the requirements of the Act and Regulations. The
Registration Statement does not contain, and neither the Prospectus nor any
amendments or supplements thereto will contain, any untrue statement of a
material fact or omits or will omit, as the case may be, to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
any Underwriter through the Representatives, expressly for use in the
preparation thereof.
(v) The Company has been duly organized, is validly
existing as a corporation under the laws of its state of incorporation, has the
corporate power and authority to own, lease, license and use its properties and
conduct its business as described in the Prospectus, and is duly qualified to
transact business and is in good standing in all jurisdictions in which the
conduct of its business or its ownership, leasing, licensing or using of
property requires such qualification and the failure so to qualify would have a
material adverse effect on the business, properties, key personnel, prospects,
condition, financial or otherwise, or results of operations of the Company and
its subsidiaries, taken as a whole (a "Material Adverse Effect").
(vi) The Company has no subsidiaries other than
InfoAccess, Inc., IntraNet Distribution Group, Inc. and IntraNet Integration
Group, Inc. (herein referred to as its "subsidiaries"). Each subsidiary of the
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own, lease, license and use its properties and
conduct its business as described in the Prospectus, and is duly qualified to
transact business in all jurisdictions in which the conduct of its business or
its ownership, lease, license or use of property requires such qualification and
the failure so to qualify would have a Material Adverse Effect. Other than the
Company's subsidiaries, the Company does not own, directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership, joint venture,
association or other entity. All outstanding shares of capital stock of each of
the subsidiaries of the Company have been duly authorized and validly issued,
are fully paid and non-assessable, and are owned, directly or indirectly, by the
Company free and clear of all liens, encumbrances and security interests. No
options, warrants or other rights to purchase, agreements or other obligations
to issue, or other rights to convert any obligations into, shares of capital
stock or ownership interests in any of the subsidiaries of the Company are
outstanding.
(vii) The outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable. All offers and sales by the Company of outstanding shares of
capital stock and other securities of the Company, prior to the date hereof,
were made in compliance with the Act and all applicable state securities or blue
sky laws and were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right. The Shares to be issued and sold by the
Company to the Underwriters pursuant to this Agreement have been duly authorized
and, when issued and paid for as
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contemplated herein, will be validly issued, fully paid and nonassessable. Each
of the Underwriters will receive good and marketable title to the Shares
purchased by it, free and clear of any and all liens, encumbrances, pledges,
security interests, charges, claims, equitable interests, restrictions and
defects. Except as otherwise stated in the Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, or any restriction upon
the voting or transfer of, any shares of capital stock of the Company pursuant
to the Company's charter, bylaws or any agreement or other instrument to which
the Company is a party or by which the Company is bound. Neither the filing of
the Registration Statement nor the offering or the sale of the Shares as
contemplated by this Agreement gives rise to any rights for, or relating to, the
registration of any shares of capital stock or other securities of the Company,
except such rights which have been validly waived or satisfied. Except as
described in the Prospectus, there are no outstanding options, warrants,
agreements or contracts to purchase or preemptive or other rights to purchase,
subscribe for or acquire from the Company any shares of its capital stock or any
securities or obligations convertible into or exercisable for shares of the
Company's capital stock. The Company has the authorized and outstanding capital
stock as set forth under the heading "Capitalization" in the Prospectus as of
the date set forth therein. The outstanding capital stock of the Company,
including the Shares, conforms, and the Shares to be issued by the Company to
the Underwriters will conform, to the description thereof contained in the
Prospectus.
(viii) The financial statements, together with the
related notes and schedules as set forth in the Registration Statement and
Prospectus, present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and its subsidiaries
on the basis stated in the Registration Statement at the indicated dates and for
the indicated periods. Such financial statements have been prepared in
accordance with generally accepted accounting principles, consistently applied
throughout the periods involved, all adjustments necessary for a fair
presentation of results for such periods have been made, except as otherwise
stated therein and are in accordance with the books and records of the Company.
The summary and selected financial and statistical data included in the
Registration Statement present fairly the information shown therein on the basis
stated in the Registration Statement and have been compiled on a basis
consistent with the financial statements presented therein. The books, records
and accounts of the Company and its subsidiaries accurately and fairly reflect
in all material respects, in reasonable detail, the transactions in and
dispositions of the assets of, and the results of operations of, the Company and
its subsidiaries.
(ix) There is no action, suit, claim, proceeding or
investigation pending or, to the knowledge of the Company, threatened or
contemplated against the Company or any of its subsidiaries or any of their
respective officers, directors, properties, assets or rights before any court or
administrative or regulatory agency which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the aggregate,
result in a Material Adverse Effect except as set forth in the Registration
Statement.
(x) The Company has good and marketable title to all
properties and assets reflected in the financial statements hereinabove
described as owned by the Company (or as described in the Prospectus as owned by
the Company), in each case free and clear of all liens, encumbrances, pledges,
security interests, charges, claims, equitable interests, restrictions and
defects, except such as are described in the Prospectus or do not materially
affect the value of such properties and assets and do not materially interfere
with the use made and proposed to be made of such properties and assets by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid and
enforceable leases with such exceptions set forth in the Prospectus or as are
not material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries.
(xi) Since the respective dates as of which
information is given in the Registration Statement and Prospectus, as they may
be amended or supplemented, (A) there has not been any material adverse change,
or any development that could reasonably be expected to result in a material
adverse change, in or affecting the condition, financial or otherwise, of the
Company and its subsidiaries, taken as a whole, or the business affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, whether or not occurring in
the ordinary course of business, (B) there has not been any transaction not in
the ordinary course of business entered into by the Company or any of its
subsidiaries which is material to the Company and its subsidiaries, taken as a
whole, other than transactions described or contemplated in the Registration
Statement, (C) the Company and its subsidiaries have not incurred any material
liabilities or obligations, direct or indirect or contingent or non-contingent,
which are not in the ordinary course of business or which could result in a
material reduction in the future earnings of the Company and its subsidiaries,
(D) the
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Company and its subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
windstorm, accident or other calamity, whether or not covered by insurance, (E)
there has not been any change in the capital stock of the Company (other than
upon the exercise of options and warrants described in the Registration
Statement), or any material increase in the short-term or long-term debt
(including capitalized lease obligations) of the Company and its subsidiaries,
taken as a whole, (F) there has not been any declaration or payment of any
dividends or any distributions of any kind with respect to the capital stock of
the Company, other than any dividends or distributions described or contemplated
in the Registration Statement, or (G) there has not been any issuance of
warrants, options, convertible securities or other rights to purchase or acquire
capital stock of the Company (other than options granted under the Company's
employee stock option plans referred to in the Prospectus).
(xii) Neither the Company nor any of its
subsidiaries is in violation of, or in default under, its charter or bylaws, or
any statute, or any law, rule, regulation, order, judgment, injunction, decree
or authorization of any court or governmental or administrative agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their
properties, or any indenture, mortgage, deed of trust, loan agreement, lease,
franchise, license or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any property or assets of the Company or any
of its subsidiaries is subject, which violation or default would have a Material
Adverse Effect.
(xiii) The issuance and sale of the Shares by the
Company and the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions contemplated herein will not
violate any provision of the charter or bylaws of the Company or any of its
subsidiaries or any statute or any order, judgment, decree, rule, regulation or
authorization of any court or governmental or administrative agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their
properties, and will not conflict with, result in a breach or violation of, or
constitute, either by itself or upon notice or passage of time or both, a
default under any indenture, mortgage, deed of trust, loan agreement, lease,
franchise, license or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any property or assets of the Company or any
of its subsidiaries is subject. No approval, consent, order, authorization,
designation, declaration or filing by or with any court or governmental agency
or body is required for the execution and delivery by the Company of this
Agreement and the consummation of the transactions herein contemplated, except
as may be required under the Act or any state securities or blue sky laws or
under the rules and regulations of the National Association of Securities
Dealers, Inc. (the "NASD"). No further approval or authorization of any
securityholder, the Company's Board of Directors or any duly appointed committee
thereof or others is required for the issuance and sale or transfer of the
Shares, except as may be required by the NASD or under state securities or blue
sky laws.
(xiv) The Company and each of its subsidiaries holds
and is operating in compliance with all licenses, approvals, certificates and
permits from governmental and regulatory authorities, foreign and domestic,
which are necessary or material to the conduct of its business as described in
the Prospectus (except where the failure to so hold or operate in compliance
with such a license, approval, certificate or permit would not have a Material
Adverse Effect) and there are no proceedings pending or, to the knowledge of the
Company, threatened, which may cause any such license, approval, certificate or
permit to be withdrawn, cancelled, suspended or not renewed.
(xv) The Company has the power and authority to
enter into this Agreement and to authorize, issue and sell the Shares it will
sell hereunder as contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(xvi) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Ernst & Young LLP,
which have certified certain of the financial statements filed with the
Commission as part of the Registration Statement, are independent public
accountants as required by the Act and Regulations.
(xvii) The Company has not taken and will not take,
directly or indirectly, any action designed to, or which has constituted, or
which might reasonably be expected to cause or result in, stabilization or
manipulation of the price of the Common Stock.
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(xviii) The Company's Common Stock is registered
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); and the Shares have been approved for designation upon
notice of issuance on The Nasdaq National Market under the symbol "INRS."
(xix) The Company has obtained and delivered to the
Representatives written agreements (the "Lock-Up Agreements"), in form and
substance satisfactory to the Representatives, of each of its officers and
directors that such officers and directors shall not, except pursuant to the
Registration Statement (A) 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 (B) 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 (A) or (B) above
is to be settled by delivery of the 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
officer or director on the date hereof or hereafter acquired, for a period
beginning from the date of execution of this Agreement and continuing to and
including the date 90 days after the date of the Prospectus (the "Lock-Up
Period"); provided, however, that such officer or director may, without the
prior written consent of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters,
transfer shares of Common Stock or any securities convertible into, or
exercisable or exchangeable for, Common Stock either during his or her lifetime
or, on death, by will or intestacy to members of his or her immediate family or
to trusts exclusively for the benefit of members of his or her immediate family
or in connection with bona fide gifts, provided that, prior to any such
transfer, such transferee executes an agreement, satisfactory to ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, pursuant to which such transferee agrees to receive and hold such
shares subject to the provisions of the Lock-Up Agreement and that there shall
be no further transfer except in accordance with the provisions of the Lock-Up
Agreement. For purposes of this paragraph, "immediate family" shall mean the
spouse, lineal descendant, father, mother, brother or sister of such officer or
director. The restrictions on transfers described in the Lock-Up Agreements
shall not apply to (1) the sale of any shares of Common Stock to the
Underwriters pursuant to this Agreement or (2) transactions in shares of Common
Stock acquired in open-market transactions after completion of the Offering.
(xx) The Company has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company.
(xxi) The Company is in compliance with all
provisions of Florida Statutes Section 517.075 (Chapter 92-198, laws of
Florida). The Company does not do any business, directly or indirectly, with the
government of Cuba or with any person or entity located in Cuba.
(xxii) The Company and its subsidiaries have timely
filed all federal, state, local and foreign tax returns or reports required to
be filed, and have paid in full all taxes indicated by said returns or reports
and all assessments received by it or any of them to the extent that such taxes
have become due and payable, except where the Company and its subsidiaries are
contesting in good faith such taxes and assessments and there is no tax
deficiency that has been or, to the Company's knowledge, might be asserted
against the Company or any of its subsidiaries which might have a Material
Adverse Effect and all material tax liabilities, whether or not disputed, are
adequately provided for on the books of the Company and its subsidiaries. Except
as set forth in the Registration Statement and the Prospectus, neither the
Company nor any subsidiary has executed or filed with any taxing authority,
foreign or domestic, any agreement extending the period for assessment or
collection of any income taxes or is a party to any pending action or proceeding
by any foreign or domestic governmental agency for assessment or collection of
taxes, and no claims for assessment or collection of taxes have been asserted
against the Company or any of its subsidiaries.
(xxiii) The Company and each of its subsidiaries
owns or possesses adequate licenses or other rights to use all patents, patent
applications, trademarks, service marks, tradenames, trademark registrations,
service ▇▇▇▇ registrations, copyrights, licenses, inventions, trade secrets
know-how, technology and other similar rights necessary for or material to the
conduct of its business as described in the Prospectus (except for failures to
own or possess such rights that would not have a Material Adverse Effect). The
Company has no knowledge of any
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facts which would preclude it from having rights to its patent applications
described in the Prospectus. Except as disclosed in the Prospectus, the Company
has no knowledge of any infringement by it or its subsidiaries of, or conflicts
with, any patents, patent applications, trademarks, service marks, tradenames,
trademark registrations, service ▇▇▇▇ registrations, copyrights, licenses,
inventions, trade secrets, know-how, technology or other similar rights of
others, and neither the Company nor any of its subsidiaries has any knowledge of
or has received any notice or claim of conflict with the asserted rights of
others with respect any of the foregoing.
(xxiv) The Company is not, and upon completion of
the sale of Shares contemplated hereby will not be, required to register as an
"investment company" under the Investment Company Act of 1940, as amended.
(xxv) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C) access to records is
permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxvi) Other than as contemplated by this Agreement,
neither the Company nor any of its subsidiaries has incurred any liability for
any finder's or broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xxvii) The Company and its subsidiaries maintain
insurance with insurers of recognized financial responsibility of the types and
in the amounts generally deemed adequate for their respective businesses and
consistent with insurance coverage maintained by similar companies in similar
businesses, including, but not limited to, insurance covering real and personal
property owned or leased by the Company or its subsidiaries against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect; 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 have a
Material Adverse Effect.
(xxviii) To the Company's knowledge, no labor
disturbance by the employees of the Company or any of its subsidiaries exists or
is imminent; and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers, subassemblers,
subcontractors or international distributors that might be expected to result in
a material adverse change in the condition (financial or otherwise), earnings,
operations, business or business prospects of the Company and its subsidiaries
considered as one enterprise. No collective bargaining agreement exists with any
of the Company's employees and, to the Company's knowledge, no such agreement is
imminent.
(xxix) The Company has not distributed and will not
distribute prior to the later of (A) the Closing Date, or any date on which
Option Shares are to be purchased, as the case may be, and (B) completion of the
distribution of the Shares, any offering material in connection with the
offering and sale of the Shares other than any Preliminary Prospectuses, the
Prospectus, the Registration Statement and other materials, if any, permitted by
the Act.
(xxx) Neither the Company nor any of its
subsidiaries (nor any person representing the Company or any of its
subsidiaries) has at any time during the last five (5) years (A) made any
payment in violation of the Foreign Corrupt Practices Act, or (B) made any
payment to any federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
thereof.
(xxxi) Except as set forth in the Registration
Statement and Prospectus, (i) the Company and each of its subsidiaries is in
compliance with all rules, laws and regulations relating to the use,
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treatment, storage and disposal of toxic substances and protection of health or
the environment ("Environmental Laws") which are applicable to its business,
except for such instances of non-compliance as would not individually or in the
aggregate have a Material Adverse Effect, (ii) neither the Company nor any of
its subsidiaries has received notice from any governmental authority or third
party of an asserted claim under Environmental Laws, which claim is required to
be disclosed in the Registration Statement and the Prospectus and is not so
disclosed, (iii) to the knowledge of the Company, neither the Company nor any of
its subsidiaries will be required to make future material capital expenditures
to comply with Environmental Laws and (iv) to the knowledge of the Company, no
property which is owned, leased or occupied by the Company or any of its
subsidiaries has been designated as a Superfund site pursuant to the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. ss. 9601, et seq.), or otherwise designated as a
contaminated site under applicable state or local law.
(xxxii) There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company or any of the members of the families of
any of them, except as disclosed in the Registration Statement and the
Prospectus.
(xxxiii) The Company has filed and made available to the
Underwriters all forms, reports, and documents required to be filed by the
Company with the Commission since March 31, 1999 (including all exhibits, notes,
and schedules thereto and documents incorporated by reference therein)
(collectively, the "Commission Reports"). The Commission Reports (i) at the time
filed, with respect to all of the Commission Reports other than registration
statements filed under the Act, or at the time of their respective effective
dates, with respect to registration statements filed under the Act, complied as
to form in all material respects with the applicable requirements of the Act or
the Exchange Act, as the case may be, and (ii) did not at the time filed or at
the time of their respective effective dates, as the case may be (or if amended
or superseded by a filing prior to the date of this Agreement, then on the date
of such filing), contain any untrue statement of a material fact or omit to
state a material fact required to be stated in such Commission Reports or
necessary in order to make the statements in such Commission Reports, in the
light of the circumstances under which they were made, not misleading. None of
the Company's subsidiaries is required to file any forms, reports, or other
documents with the Commission.
(b) Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel to the Underwriters shall be deemed
to be a representation and warranty of the Company to each Underwriter as to the
matters covered thereby.
2. Representations, Warranties and Covenants of the Selling
Shareholders.
(a) Each Selling Shareholder severally represents and warrants
to, and covenants and agrees with, each of the Underwriters and the Company
that:
(i) Such Selling Shareholder has duly executed and
delivered a Custody Agreement (the "Custody Agreement") with Norwest Bank
Minnesota, N.A., as Custodian, pursuant to which certificates in negotiable form
for the Shares to be sold by such Selling Shareholder hereunder have been placed
in custody for delivery under this Agreement and a Power of Attorney (the "Power
of Attorney") appointing certain individuals as their attorneys-in-fact in
connection with the sale of the Shares.
(ii) Such Selling Shareholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the Custody
Agreement, and to sell, assign, transfer and deliver the Shares to be sold by
such Selling Shareholder hereunder; and all consents, approvals, authorizations
and orders necessary for the execution and delivery by such Selling Shareholder
of this Agreement and the Custody Agreement, and for the sale and delivery of
the Shares to be sold by such Selling Shareholder hereunder, have been obtained,
except such as may be required by any state securities or blue sky laws.
(iii) Such Selling Shareholder has, and at the Closing
Date (as such date is hereinafter defined), will have good and valid title to
the Shares to be sold by such Selling Shareholder hereunder, free of any liens,
encumbrances, security interests, equities or claims whatsoever; and upon
delivery of and payment for such Shares pursuant to this Agreement, good and
valid title thereto, free of any liens, encumbrances, security interests,
equities or claims whatsoever, will be transferred to the several Underwriters.
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(iv) The execution and delivery by such Selling
Shareholder of this Agreement and the Custody Agreement and the consummation by
such Selling Shareholder of the transactions herein and therein contemplated and
the fulfillment by such Selling Shareholder of the terms hereof and thereof will
not conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any will, mortgage, deed of trust,
loan agreement or other agreement, instrument or obligation to which such
Selling Shareholder is a party or to which any of the property or assets of such
Selling Shareholder is subject, except for such agreements, instruments or
obligations for which consents have been obtained, nor will such actions result
in any violations of any statute, rule, regulation or order applicable to such
Selling Shareholder of any court or of any regulatory body or administrative
agency or other governmental body having jurisdiction over such Selling
Shareholder.
(v) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to, or which has constituted,
or which might reasonably be expected to cause or result in, stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Shares.
(vi) To the extent that any statements or omissions made
in the Registration Statement, any Preliminary Prospectus thereof, the
Prospectus or any amendment or supplement thereto are made in reliance upon and
in conformity with written information with respect to such Selling Shareholder
furnished to the Company by such Selling Shareholder expressly for use therein,
such Preliminary Prospectus and the Registration Statement did not, and the
Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus will not, when they become effective or are filed
with the Commission, as the case may be, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(vii) Such Selling Shareholder will not offer to sell,
sell, transfer, assign or otherwise dispose of any Common Stock or other capital
stock of the Company, directly or indirectly, for a period of 90 days after the
date of the Prospectus, otherwise than as expressly permitted under the Lock-Up
Agreement between such Selling Shareholder and the Representatives.
(viii) Such Selling Shareholder has reviewed the
information contained in the Registration Statement and, based on such review
and such Selling Shareholder's knowledge of the industry, the Company and its
business (but without further investigation), such Selling Shareholder does not
have knowledge that, and nothing has come to such Selling Shareholder's
attention that would give such Selling Shareholder reason to believe that, at
the time the Registration Statement became or becomes, as the case may be,
effective and at all times subsequent thereto up to and on the Closing Date, (i)
the Registration Statement and the Prospectus, and any amendments or supplements
thereto, contained or will contain any untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) the
Prospectus, and any amendments or supplements thereto effective on or prior to
the Closing Date, contained or will contain any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ix) The Shares to be sold by such Selling Shareholder
pursuant to this Agreement have been duly authorized and are validly issued,
fully paid and non-assessable.
(x) This Agreement and the Custody Agreement have been
duly executed and delivered by such Selling Shareholder and are valid and
binding agreements of such Selling Shareholder.
(xi) Assuming the Underwriters purchase the Shares to be
sold by such Selling Shareholder for value, in good faith and without notice of
any adverse claim within the meaning of Article VIII of the Uniform Commercial
Code, delivery of the Shares to be sold by such Selling Shareholder pursuant to
this Agreement will pass marketable title to such Shares free and clear of any
security interests, claims, liens, equities and other encumbrances.
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(b) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of 1986, as
amended, with respect to the transactions herein contemplated, each Selling
Shareholder agrees to deliver to you prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
(c) Each Selling Shareholder specifically agrees that the
Shares represented by the certificates held in custody for such Selling
Shareholder under the Custody Agreement are subject to the interests of the
Underwriters hereunder, and that the arrangements made by such Selling
Shareholder for such custody are to that extent irrevocable. Such Selling
Shareholder specifically agrees that the obligations of such Selling Shareholder
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of such Selling Shareholder or by the occurrence of any other event.
If such Selling Shareholder should die or become incapacitated, or if any other
such event should occur before the delivery of the Shares hereunder,
certificates representing the Shares shall be delivered by or on behalf of such
Selling Shareholder in accordance with the terms and conditions of this
Agreement and of the Custody Agreement shall be as valid as if such death,
incapacity or other event had not occurred, regardless of whether or not the
Custodian shall have received notice of such death, incapacity or other event.
(d) Any certificate signed by or on behalf of any Selling
Shareholder and delivered to the Representatives or to counsel to the
Underwriters shall be deemed to be a representation and warranty of such Selling
Shareholder to each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and covenants contained herein, and subject to the
terms and conditions herein set forth, the Company and each Selling Shareholder
agree, severally and not jointly, to sell to each Underwriter and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
each Selling Shareholder, at a price of $[ ] per share, the number of Firm
Shares (to be adjusted by you to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Company and
each Selling Shareholder, as set forth opposite their respective names in
Schedule B hereto, by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule A hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all the Underwriters from
the Company and the Selling Shareholders hereunder.
In addition, on the basis of the representations, warranties and
covenants contained herein and subject to the terms and conditions herein set
forth, the Company hereby grants, to the several Underwriters an option to
purchase at the Underwriters' election up to the number of Option Shares, at the
same price per share as set forth for the Firm Shares in the paragraph above,
for the sole purpose of covering over allotments in the sale of the Firm Shares.
The option granted hereby may be exercised in whole or in part, but only once,
and at any time upon written notice given within 30 days after the date of this
Agreement, by you, as Representatives of the several Underwriters, to the
Company, and the Custodian setting forth the number of Option Shares as to which
the several Underwriters are exercising the option and the time and date at
which certificates are to be delivered. If any Option Shares are purchased, each
Underwriter agrees, severally and not jointly, to purchase that portion of the
number of Option Shares as to which such election shall have been exercised
(subject to adjustment to eliminate fractional shares) determined by multiplying
such number of Option Shares by a fraction the numerator of which is the maximum
number of Option Shares which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule A hereto and the
denominator of which is the maximum number of Option Shares which all of the
Underwriters are entitled to purchase hereunder. The time and date at which
certificates for Option Shares are to be delivered shall be determined by the
Representatives but shall not be earlier than two or later than ten full
business days after the exercise of such option, and shall not in any event be
prior to the Closing Date. If the date of exercise of the option is three or
more full days before the Closing Date, the notice of exercise shall set the
Closing Date as the Option Closing Date.
Certificates in definitive form for the Shares to be purchased by each
Underwriter hereunder, and in such denominations and registered in such names as
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company and such
Selling Shareholder to you for the account of such Underwriter at such time and
place as shall hereafter be designated by the Representatives,
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against payment by such Underwriter or on its behalf of the purchase price
therefor by certified or official bank checks, payable to the order of the
Company and such Selling Shareholder in same day funds. The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 8:30 a.m.,
Minneapolis, Minnesota time, at the offices of Faegre & ▇▇▇▇▇▇, LLP,
Minneapolis, Minnesota, on the third (or if the Shares are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, the fourth) full business day following the date hereof, or at such other
time and date as you and the Company determine pursuant to Rule 15c6-1(a) under
the Exchange Act, such time and date being herein referred to as the "Closing
Date," and, with respect to the Option Shares, at the time and on the date
specified by you in the written notice given by you of the Underwriters'
election to purchase the Option Shares, or such other time and date as you and
the Company may agree upon in writing, such time and date being referred to
herein as the "Option Closing Date." Such certificates will be made available
for checking and packaging at least twenty-four hours prior to the Closing Date
or the Option Closing Date, as the case may be, at a location as may be
designated by you.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to make a public offering of the Firm Shares as soon as the
Representatives deem it advisable to do so. The Firm Shares are to be initially
offered to the public at the initial public offering price and terms set forth
in the Prospectus. The Representatives may from time to time thereafter change
the public offering price and other selling terms. To the extent, if at all,
that any Option Shares are purchased pursuant to Section 3 hereof, the
Underwriters will offer such Option Shares to the public on the foregoing terms.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriters that:
(a) The Company will prepare and timely file with the
Commission under Rule 424(b) under the Act a Prospectus containing information
previously omitted at the time of effectiveness of the Registration Statement in
reliance on Rule 430A under the Act, and will not file any amendment to the
Registration Statement or supplement to the Prospectus of which the
Representatives shall not previously have been advised and furnished with a copy
and as to which the Representatives shall have reasonably objected in writing
promptly after reasonable notice thereof or which is not in compliance with the
Act or the Regulations.
(b) The Company will timely file with the Commission all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Shares.
(c) The Company will advise the Representatives promptly of
any request of the Commission for amendment of the Registration Statement or for
any supplement to the Prospectus or for any additional information, or of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for that purpose, and the Company
will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus or suspending such
qualification and to obtain as soon as possible the lifting thereof, if issued.
(d) The Company will endeavor to qualify the Shares for sale
under the securities laws of such jurisdictions as the Representatives may
reasonably have designated in writing and will, or will cause counsel to, make
such applications, file such documents, and furnish such information as may be
reasonably requested by the Representatives, provided that the Company shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time to time, prepare
and file such statements, reports and other documents as are or may be required
to continue such qualifications in effect for so long a period as the
Representatives may reasonably request for distribution of the Shares.
(e) The Company will furnish the Underwriters with as many
copies of any Preliminary Prospectus as the Representatives may reasonably
request and, during the period when delivery of a prospectus is required under
the Act, the Company will furnish the Underwriters with as many copies of the
Prospectus in final form, or as thereafter amended or supplemented, as the
Representatives may, from time to time, reasonably request.
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The Company will deliver to the Representatives, at or before the Closing Date,
five signed copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the Representatives
such number of copies of the Registration Statement, without exhibits, and of
all amendments thereto, as the Representatives may reasonably request.
(f) If, during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer, any event shall occur as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, not misleading, or if
for any other reason it shall be necessary at any time to amend or supplement
the Prospectus to comply with any law, the Company promptly will prepare and
file with the Commission an appropriate amendment to the Registration Statement
or supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein in
light of the circumstances existing when it is so delivered, not misleading, or
so that the Prospectus will comply with law. In case any Underwriter is required
to deliver a prospectus in connection with sales of any Shares at any time nine
months or more after the effective date of the Registration Statement, upon the
request of the Representatives but at the expense of such Underwriter, the
Company will prepare and deliver to such Underwriter as many copies as the
Representatives may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act.
(g) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
18 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 thereunder and will advise you in
writing when such statement has been so made available.
(h) During a period of five (5) years after the date hereof,
or such shorter period that the Company remains subject to the periodic
reporting requirements of the Exchange Act, the Company, as soon as practicable
after the end of each respective financial quarter or year, as applicable, will
furnish to its shareholders annual reports (including financial statements
audited by independent certified public accountants) and will, upon request,
furnish to you and the other several Underwriters hereunder (i) concurrently
with making such reports available to its shareholders, statements of operations
of the Company for each of the first three quarters in the form made available
to the Company's shareholders; (ii) concurrently with the furnishing thereof to
its shareholders, a balance sheet of the Company as of the end of such fiscal
year, together with statements of operations, of shareholders' equity and of
cash flow of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent certified
public accountants; (iii) concurrently with the furnishing of such reports to
its shareholders, copies of all reports (financial or other) mailed to
shareholders; and (iv) as soon as they are available, copies of all reports and
financial statements furnished to or filed with the Commission, any securities
exchange or The Nasdaq National Market by the Company (except for documents for
which confidential treatment is requested).
(i) No offering, sale or other disposition of any Common Stock
or other capital stock of the Company, or warrants, options, convertible
securities or other rights to acquire such Common Stock or other capital stock
(other than pursuant to employee stock option plans, employee stock purchase
plans, outstanding options or on the conversion of convertible securities
outstanding on the date of this Agreement; (ii) in connection with business
acquisitions or (iii) pursuant to offerings exempt from the registration
requirements of the Act, provided that the Company shall not register the resale
of Common Stock or other capital stock of the Company, or warrants, options,
convertible securities or other rights to acquire such Common Stock or other
capital stock issued or issuable pursuant to such exempt transaction during the
Lock-Up Period; provided, that any employee stock options issued pursuant to
employee stock option plans during the Lock-Up Period shall not vest and become
exercisable to any extent prior to the expiration of the Lock-Up Period; and,
provided further, that any shares of Common Stock issued to any current officer
or director during the Lock-Up Period pursuant to the exercise of stock options
shall bear a restrictive legend restricting the transfer of such shares during
the Lock-Up Period) will be made from the date of this Agreement until the end
of the Lock-Up Period, directly or indirectly, by the Company otherwise than
hereunder or with the prior written consent of the Representatives.
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(j) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder substantially in accordance with the
purposes set forth under "Use of Proceeds" in the Prospectus. The Company will
invest such proceeds pending their use in such a manner that, upon completion of
such investment, the Company will not be an "investment company" as defined in
the Investment Company Act of 1940, as amended.
(k) The Company will use its best efforts to maintain the
designation of the Common Stock on The Nasdaq National Market.
(l) From the date of this Agreement until the termination of
the Lock-Up Period, the Company will not, without the prior written consent of
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, alter or amend in any
manner the vesting schedule of any option, warrant or other security of the
Company or its subsidiaries.
(m) The Company will maintain a Transfer Agent and, if
necessary under the jurisdiction of incorporation of the Company, a Registrar
(which may be the same entity as the Transfer Agent) for its Common Stock.
(n) If the Company elects to rely upon Rule 462(b) under the
Act ("Rule 462(b)"), the Company shall file with the Commission a registration
statement pursuant to Rule 462(b) (a "462(b) Registration Statement") by 10:00
p.m. Washington D.C. time, on the date of this Agreement and the Company shall
at the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
6. Costs and Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, the Company will pay (directly or by
reimbursement) all costs, expenses and fees incident to the performance of the
obligations of the Company and the Selling Shareholders under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company, the cost of preparing, printing and filing of the Registration
Statement, Preliminary Prospectuses and the Prospectus and any amendments and
supplements thereto and the printing, mailing and delivery to the Underwriters
and dealers of copies thereof and of this Agreement, the Agreement Among
Underwriters, any Selected Dealers Agreement, the Underwriters' Selling
Memorandum, the Invitation Letter, the Power of Attorney, the Blue Sky
Memorandum and any supplements or amendments thereto (excluding, except as
provided below, fees and expenses of counsel to the Underwriters); the filing
fees of the Commission; the filing fees and expenses (including legal fees and
disbursements of counsel for the Underwriters) incident to securing any required
review by the NASD of the terms of the sale of the Shares; listing fees, if any,
transfer taxes and the expenses, including the fees and disbursements of counsel
for the Underwriters incurred in connection with the qualification of the Shares
under state securities or blue sky laws; the fees and expenses incurred in
connection with the designation of the Common Stock on The Nasdaq National
Market; the costs of preparing stock certificates; the costs and fees of any
registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 6. In addition, the Company will pay all travel and
lodging expenses incurred by management of the Company in connection with any
informational "road show" meetings held in connection with the offering and will
also pay for the preparation of all materials used in connection with such
meetings. The Selling Shareholders will pay the fees and expenses of any
separate counsel retained by them in connection with the transactions
contemplated hereby. The Company and the Selling Shareholders shall not,
however, be required to pay for any of the Underwriters' expenses (other than
those related to qualification of the Shares under state securities or blue sky
laws and those incident to securing any required review by the NASD of the terms
of the sale of the Shares but including, without limitation, the Underwriter
expenses specified in Section 5(e) of this Agreement) except that, if this
Agreement shall not be consummated because the conditions in Section 7 hereof
are not satisfied or because this Agreement is terminated by the Representatives
pursuant to clause (i) of Section 11(a) hereof, or by reason of any failure,
refusal or inability on the part of the Company or the Selling Shareholders to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on their respective parts to be performed, unless
such failure to satisfy said condition or to comply with said terms shall be due
to the default or omission of any Underwriter, then the Company shall promptly
upon request by the Representatives reimburse the several Underwriters for all
appropriately itemized out-of-pocket accountable expenses, including fees and
disbursements of counsel, reasonably
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incurred in connection with investigating, marketing and proposing to market the
Shares or in contemplation of performing their obligations hereunder; but the
Company and the Selling Shareholders shall not in any event be liable to any of
the several Underwriters for damages on account of loss of anticipated profits
from the sale by them of the Shares.
7. Conditions of Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Firm Shares on the Closing Date
and the Option Shares, if any, on the Option Closing Date, are subject to the
condition that all representations and warranties of the Company, and the
Selling Shareholders contained herein are true and correct, at and as of the
Closing Date or the Option Closing Date, as the case may be, the condition that
the Company and the Selling Shareholders shall have performed all of their
respective covenants and obligations hereunder (to the extent performance of
such covenants and obligations are due at such times) and to the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the Regulations and in accordance with Section 5(a) hereof; if the
Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective by 10:00 p.m., Washington D.C. time, on
the date of this Agreement; no stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, or any part thereof shall
have been issued and no proceedings for that purpose shall have been initiated
or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives.
(b) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Faegre & ▇▇▇▇▇▇ LLP,
counsel for the Company [and the Selling Shareholders], dated the Closing Date
or the Option Closing Date, as the case may be, addressed to the Underwriters,
to the effect that:
(i) The Company has been duly organized and is validly existing
as a corporation under the laws of its state of incorporation, with corporate
power and authority to own, lease, license and use its properties and conduct
its business as described in the Prospectus, and is duly qualified to transact
business and is in good standing in all jurisdictions in which the conduct of
its business or its ownership, lease, license or use of property requires such
qualification and the failure so to qualify would have a Material Adverse
Effect.
(ii) The Company has authorized and outstanding capital stock as
described in the Prospectus as of the date set forth therein. The outstanding
shares of the Company's capital stock have been duly authorized and validly
issued and are fully paid and nonassessable. The form of certificate for the
Shares is in due and proper form and complies with the requirements of
applicable state corporation laws. The Shares to be issued and sold by the
Company pursuant to this Agreement have been duly authorized and, when issued
and paid for as contemplated herein, will be validly issued, delivered, fully
paid and nonassessable. No preemptive right, co-sale right, registration right,
right of first refusal or other similar right of shareholders of the Company, or
of holders of warrants, options, convertible securities or other rights to
acquire shares of capital stock of the Company, exist with respect to any of the
Shares or the issue and sale thereof (i) pursuant to the terms of the Company's
charter or bylaws or (ii) to the knowledge of such counsel, pursuant to the
terms of any agreement or instrument to which the Company is a party or by which
the Company is bound. To the knowledge of such counsel, no rights to register
outstanding shares of the Company's capital stock, or shares issuable upon the
exercise of outstanding warrants, options, convertible securities or other
rights to acquire shares of such capital stock, exist which have not been
validly exercised or waived with respect to the Registration Statement. The
capital stock of the Company, including the Shares, conforms in all material
respects as to legal matters to the description thereof contained in the
Prospectus.
(iii) The Registration Statement has become effective under the
Act and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
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(iv) The Registration Statement, the Prospectus and each
amendment or supplement thereto comply as to form in all material respects with
the requirements of the Act and the rules and regulations thereunder (except
that such counsel need express no opinion as to the financial statements and the
notes thereto and related schedules and other financial data included therein or
omitted therefrom).
(v) The statements (A) in the Prospectus under the caption
"Shares Eligible for Future Sale" and (B) in the Registration Statement in Item
15 insofar as such statements constitute a summary of matters of law, are, in
all material respects, accurate summaries and fairly present the information
required to be stated.
(vi) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company prior to the
Closing Date or the Option Closing Date (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of the
Commission thereunder; and they have no reason to believe that any of such
documents, when such documents became effective or were so filed, as the case
may be, contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact, or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents which were
filed under the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading.
(vii) Such counsel does not know of any contracts, agreements,
documents or instruments required to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the Prospectus which are
not so filed or described as required; and insofar as any statements in the
Registration Statement or the Prospectus constitute summaries of any contract,
agreement, document or instrument, such statements are, in all material
respects, accurate summaries and fairly present the information required to be
stated.
(viii) Such counsel knows of no legal or governmental
proceeding, pending or threatened, before any court or administrative body or
regulatory agency, to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
Prospectus and are not so described, or statutes or regulations that are
required to be described in the Registration Statement or the Prospectus that
are not so described as required.
(vix) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will not
conflict with or result in a violation of or default under the charter or bylaws
of the Company or any of its subsidiaries, or under any statute, permit,
judgment, decree, order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties (other than the state securities and
blue sky laws, as to which such counsel need express no opinion) and do not and
will not conflict with or result in a violation of or default under (except for
such conflicts, violations or defaults as would not have a Material Adverse
Effect) under any lease, license, contract, indenture, mortgage, loan agreement
or other agreement or other instrument or obligation known to such counsel to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any property or assets of the
Company or any of its subsidiaries is subject, except such agreements,
instruments or obligations with respect to which valid consents or waivers have
been obtained by the Company.
(x) To such counsel's knowledge, neither the Company nor any of
its subsidiaries is in violation of, or in default under, its charter or bylaws,
or any statute, or any law, rule, regulation, order, judgment, injunction,
decree or authorization of any court or governmental or administrative agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties, or any indenture, mortgage, deed of trust, loan agreement,
lease, franchise, license or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any property or
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assets of the Company or any of its subsidiaries is subject, which violation or
default would have a Material Adverse Effect.
(xi) The Company has the corporate power and authority to enter
into this Agreement and to authorize, issue, sell and deliver the Shares to be
sold by the Company as contemplated hereby. This Agreement has been duly and
validly authorized, executed and delivered by the Company.
(xii) No approval, consent, order, authorization, designation,
declaration, qualification or filing by or with any judicial, regulatory,
administrative or other governmental body is necessary in connection with the
execution and delivery of this Agreement and the consummation of the
transactions herein contemplated (other than as may be required by state
securities and blue sky laws, as to which such counsel need express no opinion)
except such as have been obtained or made.
(xiii) The Company is not, and immediately upon completion of
the sale of Shares contemplated hereby will not be, required to register as an
"investment company" under the Investment Company Act of 1940, as amended.
(xiv) Although such counsel assumes no responsibility for the
factual accuracy or completeness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in the opinion in
subsections (ii) and (v) of this Section 7(b) and on the basis of the procedures
undertaken by such counsel (and relying as to materiality to the extent such
counsel deems appropriate upon opinions of officers and other representatives of
the Company), no facts have come to the attention of such counsel that cause it
to believe that the Registration Statement and any amendments and supplements
thereto, at the time they became effective and as of the Closing Date or the
Option Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or that the Prospectus or any further amendment or supplement
thereto, at the time it was transmitted to the Commission for filing pursuant to
Rule 424(b) and as of the Closing Date and the Option Closing Date, included an
untrue statement of a material fact or omitted 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, except that such counsel need not
express any opinion with respect to the financial statements and supporting
schedules and other financial data included in the Registration Statement and
the Prospectus.
(c) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of [Faegre & ▇▇▇▇▇▇
LLP], counsel for each of the Selling Shareholders, dated the Closing Date or
the Option Closing Date, as the case may be, addressed to the Underwriters, to
the effect that:
(i) A Custody Agreement has been duly executed and delivered by
such Selling Shareholder and is the valid and binding agreement of such Selling
Shareholder.
(ii) This Agreement has been duly executed and delivered by such
Selling Shareholder.
(iii) The sale of the Shares to be sold by such Selling
Shareholder hereunder and the compliance by such Selling Shareholder with all of
the provisions of this Agreement and the Custody Agreement, and the consummation
of the transactions herein and therein contemplated, will not conflict with or
result in a breach or violation of any terms or provisions of, or constitute a
default under, any statute, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which such
Selling Shareholder is a party or by which such Selling Shareholder is bound or
to which any of the property or assets of such Selling Shareholder is subject,
nor will such action result in any violation of any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over such Selling Shareholder or the property of such Selling
Shareholder.
(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the Shares to be
sold by such Selling Shareholder hereunder, except such consents, approvals,
authorizations or orders as have been validly obtained and are in full force and
effect, such as have been obtained under the Act, and
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such as may be required under the state securities or blue sky laws in
connection with the purchase and distribution of such Shares by the
Underwriters, as to which such counsel need express no opinion.
(v) Such Selling Shareholder has full right, power and authority
to sell, assign, transfer and deliver the Shares to be sold by such Selling
Shareholder hereunder.
(vi) Upon delivery of the Shares being sold by such Selling
Shareholder and payment therefor, good and valid title to the Shares being sold
by such Selling Shareholder, free and clear of any claims, liens, encumbrances,
security interests or other adverse claims, will be transferred to each of the
several Underwriters who have purchased such Shares in good faith and without
notice of any such claim, lien, encumbrance, security interest or other adverse
claim within the meaning of the Uniform Commercial Code.
(d) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, an opinion dated the Closing Date or the Option
Closing Date, as the case may be, with respect to the incorporation of the
Company, the validity of the Shares, the Registration Statement, the Prospectus,
and other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(e) The Representatives shall have received on each of the date hereof,
the Closing Date and the Option Closing Date, as the case may be, a signed
letter, dated as of the date hereof, the Closing Date or the Option Closing
Date, as the case may be, in form and substance reasonably satisfactory to the
Representatives, from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Ernst & Young LLP, to the effect
that they are independent public accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the related rules and regulations
and 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.
(f) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date or the Option Closing Date, as the case may be, there
shall not have been any change or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in your judgment, is material and adverse to the Company and
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at the Closing Date or the Option Closing
Date, as the case may be, on the terms and in the manner contemplated in the
Prospectus.
(g) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate or certificates of the
chief executive officer and the chief financial officer of the Company to the
effect that, as of the Closing Date or the Option Closing Date, as the case may
be, each of them severally represents as follows:
(i) The Prospectus was filed with the Commission pursuant to
Rule 424(b) within the applicable period prescribed for such filing by the
Regulations and in accordance with Section 5(a) of this Agreement; no stop order
suspending the effectiveness of the Registration Statement has been issued, and
no proceedings for such purpose have been initiated or are, to such officer's
knowledge, threatened by the Commission.
(ii) The representations and warranties of the Company set forth
in Section 1 of this Agreement are true and correct at and as of the Closing
Date or the Option Closing Date, as the case may be, and the Company has
performed all of its obligations under this Agreement to be performed at or
prior to the Closing Date or the Option Closing Date, as the case may be.
(h) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate of the Selling
Shareholders pursuant to which the Selling Shareholders certify that their
representations and warranties set forth in this Agreement are true and correct
at and as of the Closing Date or the Option Closing Date, as the case may be,
and that they have performed all of their obligations under this Agreement to be
performed at or prior to the Closing Date or the Option Closing Date, as the
case may be.
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(i) The Company and the Selling Shareholders shall have
furnished to the Representatives such further certificates and documents as the
Representatives may reasonably have requested.
(j) The Lock-Up Agreements shall have been delivered to the
Representatives prior to the date hereof and are, as of the Closing Date or the
Option Closing Date, as the case may be, in full force and effect.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Representatives and to ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 7
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Company of such termination in writing or
by telegram at or prior to the Closing Date or the Option Closing Date, as the
case may be. In such event, the Company and the Underwriters shall not be under
any obligation to each other (except to the extent provided in Sections 6 and 8
hereof).
8. Indemnification.
(a) The Company and the Selling Shareholders jointly and
severally agree to indemnify and hold harmless each Underwriter, each officer
and director thereof, and each person, if any, who controls any Underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) to which such Underwriter or such persons may became subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings 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, any Preliminary Prospectus or the
Prospectus, including any amendments or supplements thereto, or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, or (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Common Stock or the offering
contemplated hereby, and which is included as part of or referred to in any
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arising out of or based upon matters covered by clause (i) or (ii)
above, and will reimburse each Underwriter and each such officer, director and
controlling person for any legal or other expenses reasonably incurred by such
Underwriter or such officer, director or controlling person in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Selling Shareholders shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement, or omission or alleged omission, made in the Registration
Statement, any Preliminary Prospectus or the Prospectus, including any
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein; provided further, that the Company
and the Selling Shareholders shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission,
made in a Preliminary Prospectus, if a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the Underwriters
to the person asserting such loss, claim, damage or liability, if required by
law so to have been delivered, at or prior to the written confirmation of the
sale of Shares to such person, and if the Prospectus (as amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability, unless the failure to so deliver the Prospectus (as amended
or supplemented) is the result of noncompliance by the Company with the first
sentence of paragraph 5(d) of this Agreement. Notwithstanding the provisions of
this Section 8(a), any liability of the Selling Shareholders under this Section
8(a) shall be limited to the amount of the proceeds received by the Selling
Shareholders.
(b) Each Underwriter agrees severally and not jointly to
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the Registration Statement, the Selling Shareholders
and each person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Company or any
such director, officer, Selling Shareholder or controlling
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person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made, and will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, Selling Shareholder or controlling person
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that each Underwriter will be liable
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity or contribution may be sought pursuant to this Section 8, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) or contribution provided for
in Section 8(d) shall be available with respect to a proceeding to any party who
shall fail to give notice of such proceeding as provided in this Section 8(c) if
the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the indemnifying
party or parties from any liability which it or they may have to the indemnified
party otherwise than on account of the provisions of Section 8(a) or (b). In
case any such proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party and shall pay as incurred the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay promptly as
incurred the reasonable fees and expenses of the counsel retained by the
indemnified party in the event (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and the indemnified party
shall have reasonably concluded that there may be a conflict between the
positions of the indemnifying party and the indemnified party in conducting the
defense of any such action or that there may be legal defenses available to it
or other indemnified parties which are different from or additional to those
available to the indemnifying party. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more than one separate
firm at any time for all such indemnified parties. Such firm shall be designated
in writing by the Representatives and shall be reasonably satisfactory to the
Company in the case of parties indemnified pursuant to Section 8(a) and shall be
designated in writing by the Company and shall be reasonably satisfactory to the
Representatives in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a), or (b) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other from the offering
of the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received
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by the Company and the Selling Shareholders on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Shareholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Selling Shareholders on
the one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereto) referred to above in this Section
8(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter, the Selling Shareholders shall not be required to contribute
any amount in excess of the proceeds received by the Selling Shareholders, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Selling
Shareholders under this Section 8 shall be in addition to any liability which
the Company and the Selling Shareholders may otherwise have, and the obligations
of the Underwriters under this Section 8 shall be in addition to any liability
which the Underwriters may otherwise have.
9. Default by Underwriters. If on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter shall fail to purchase and pay
for the portion of the Shares which such Underwriter has agreed to purchase and
pay for on such date (otherwise than by reason of any default on the part of the
Company or a Selling Shareholder), you, as Representatives of the Underwriters,
shall use your best efforts to procure within 36 hours thereafter one or more of
the other Underwriters, or any others, to purchase from the Company and the
Selling Shareholders such amounts as may be agreed upon, and upon the terms set
forth herein, of the Firm Shares or Option Shares, as the case may be, which the
defaulting Underwriter or Underwriters failed to purchase. If the aggregate
number of Shares that the defaulting Underwriter or Underwriters agreed to
purchase shall not be purchased in accordance with the preceding sentence, the
Company shall have the right, within 36 hours next succeeding the 36-hour period
above referred to, to make arrangements with other underwriters or purchasers
satisfactory to you for purchase of such remaining Shares on the terms herein
set forth. If during such two 36-hour periods you, as Representatives, and the
Company shall not have procured such other Underwriters, or any others, to
purchase the Firm Shares or Option Shares, as the case may be, agreed to be
purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of Shares with respect to which such default shall occur does
not exceed 10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the other Underwriters shall be obligated, severally, in proportion to
the respective numbers of Firm Shares or Option Shares, as the case may be,
which they are obligated to purchase hereunder, to purchase the Firm Shares or
Option Shares, as the case may be, which such defaulting Underwriter or
Underwriters failed to purchase, or (b) if the aggregate number of shares of
Firm Shares or Option Shares, as the case may be, with respect to which such
default shall occur exceeds 10% of the Firm Shares or Option Shares, as the case
may be, covered hereby, the Company and the Selling Shareholders or you as the
Representatives of the Underwriters will have the right, by written notice given
within the next 36-hour period to the parties to this Agreement, to terminate
this Agreement without liability on the part of the non-defaulting Underwriters
or of the Company and the Selling Shareholders except for expenses to be borne
by the Company, the Selling Shareholders and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 9 (and assuming that this Agreement is not terminated
pursuant to the immediately preceding sentences), the Closing Date or Option
Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as you, as Representatives, may determine in order that
the required changes in the Registration Statement or in the Prospectus or in
any other documents or arrangements may be
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effected. The term "Underwriter" includes any person substituted for a
defaulting Underwriter. Any action taken under this Section 9 shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Notices. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or telegraphed
and confirmed as follows: if to the Underwriters, to ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ Plaza, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, with copies to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇▇ Center South, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq.; if to the Company or Selling Shareholders, to IntraNet Solutions, Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
with copies to Faegre & ▇▇▇▇▇▇ LLP, 2200 Norwest Center, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
11. Termination. This Agreement may be terminated by you by notice to
the Company and the Selling Shareholders as follows:
(a) at any time prior to the Closing Date if any of the following
has occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change in or
affecting the condition, financial or otherwise, of the Company and its
subsidiaries taken as a whole or the business affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, (ii) any outbreak or escalation of hostilities or declaration of war
or national emergency after the date hereof or other national or international
calamity or crisis or change in economic or political conditions if the effect
of such outbreak, escalation, declaration, emergency, calamity, crisis or change
on the financial markets of the United States would, in your judgment, make the
offering or delivery of the Shares impracticable or inadvisable, (iii)
suspension of trading in securities on the New York Stock Exchange or the
American Stock Exchange or limitation on prices (other than limitations on hours
or numbers of days of trading) for securities on either such Exchange, or a halt
or suspension of trading in securities generally which are quoted on The Nasdaq
National Market System or The Nasdaq SmallCap Market, or (iv) declaration of a
banking moratorium by either federal or New York State authorities; or
(b) as provided in Sections 7 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company,
as to any obligation of the Underwriters to purchase the Option Shares, upon the
occurrence at any time prior to the Option Closing Date of any of the events
described in subparagraph (a) above or as provided in Sections 7 and 9 of this
Agreement.
12. Written Information. For all purposes under this Agreement
(including, without limitation, Section 1, Section 2, Section 3 and Section 8
hereof), the Company and the Selling Shareholders understand and agree with each
of the Underwriters that the following constitutes the only written information
furnished to the Company by or through the Representatives specifically for use
in preparation of the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto: (i) the per share "Public
offering price" and per share "Underwriting discounts and commissions" set forth
on the cover page of the Prospectus, and (ii) the information set forth under
the caption "Underwriting" in the Preliminary Prospectus and the Prospectus.
13. Successors. This Agreement has been and is made solely for the
benefit of and shall be binding upon the Underwriters, the Company, the Selling
Shareholders and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. The
term "successors" shall not include any purchaser of the Shares merely because
of such purchase.
14. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers or the Selling Shareholders and (c)
delivery of and payment for the Shares under this Agreement.
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Each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Minnesota.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholders and the several Underwriters in accordance with its terms.
Very truly yours,
IntraNet Solutions, Inc.
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President and Chief Executive Officer
Selling Shareholders:
By:
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Attorney-in-Fact for
the Selling Shareholders
The foregoing Underwriting Agreement is
Hereby confirmed and accepted as of the
Date first above written.
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
SoundView Technology Group, Inc.
▇▇▇▇▇-▇▇▇▇▇▇ Capital Group, Inc.
As Representatives of the several Underwriters
By ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
By:
--------------------------------------
Name:
--------------------------------------
Its:
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