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EXHIBIT 1.01
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EXODUS COMMUNICATIONS, INC.
EQUITY SECURITIES
_______________________
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
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EXODUS COMMUNICATIONS, INC.
EQUITY SECURITIES
________________________
UNDERWRITING AGREEMENT STANDARD PROVISIONS
From time to time, Exodus Communications, Inc., a Delaware corporation
("Exodus"), may enter into one or more underwriting agreements that provide for
the sale of certain equity securities (the "Securities"), to the purchaser or
purchasers named therein (the "Underwriters"). The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (the
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as "this Agreement."
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. Capitalized terms not otherwise defined in this
Agreement shall have the meaning ascribed thereto in the Indenture (as
hereinafter defined).
The terms governing of the issuance and sale of any particular series of
Securities shall be as provided in the applicable Underwriting Agreement (with
respect to each Underwriting Agreement, such series of Securities are herein
referred to as the "Designated Securities").
1. Issuance of Designated Securities. Sales of the Designated Securities
may be made from time to time to the Underwriters of the Designated Securities.
Any firm or firms designated as the representative or representatives, as the
case may be, of the Underwriters of the Designated Securities in the
Underwriting Agreement relating thereto will act as the representative or
representatives (the "Representative"). The obligation of Exodus to issue and
sell any of the Designated Securities and the obligation of any Underwriters to
purchase any of the Designated Securities shall be evidenced by the Underwriting
Agreement with respect to the Designated Securities specified therein. Each
Underwriting Agreement shall specify the aggregate principal amount of the
Designated Securities, the public offering price of the Designated Securities,
the purchase price to the Underwriters of the Designated Securities, the names
of the Underwriters of the Designated Securities, the name of the
Representative, if any, of such Underwriters, and the principal amount of the
Designated Securities to be purchased by each Underwriter and shall set forth
the date, time and manner of delivery of the Designated Securities and payment
therefor. The Underwriting Agreement shall also specify, to the extent not set
forth in the Registration Statement and Prospectus (as hereinafter defined) with
respect thereto, the general terms of the Designated Securities. An Underwriting
Agreement shall be in writing (which may be in counterparts), and may be
evidenced by an exchange of facsimile transmissions. The obligations of the
Underwriters under each Underwriting Agreement shall be several and not joint.
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2. Representations and Covenants. Exodus represents to, and covenants
with, each Underwriter that:
(a) Exodus meets the requirements for the use of Form S-3 and a
registration statement on Form S-3 (Registration No. 333-40340), including a
prospectus, relating to the Securities of Exodus has been filed with the
Securities and Exchange Commission (the "Commission") in accordance with
applicable regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), and has been declared effective under the Act. Such
registration statement, as amended to the date of this Agreement, is hereinafter
referred to as the "Registration Statement," and such prospectus as proposed to
be supplemented by a prospectus supplement (the "Prospectus Supplement")
relating to the Designated Securities to be filed pursuant to Rule 424 under the
Act is hereinafter referred to as the "Prospectus." Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to and include
the documents which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the date of this Agreement, and
incorporated by reference in the Prospectus pursuant to Item 12 of Form S-
3,excluding any documents or portions of such documents which are deemed under
the rules and regulations of the Commission under the Act not to be incorporated
by reference; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange
Act deemed to be incorporated therein by reference after the date of this
Agreement. For purposes of this Agreement, "Effective Time" with respect to the
Registration Statement means (i) if Exodus has not advised the Representative
that is proposes to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this Agreement,
was declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) under the Act, or (ii) if Exodus has advised the
Representative that it proposes to file an amendment or post-effective amendment
to such registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. "Effective Date" with respect
to the Registration Statement means the date of the Effective Time thereof.
(b) At the Effective Time, the Registration Statement and the
Prospectus conformed, and any proposed amendments thereof and supplements
thereto relating to the Designated Securities will conform, in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder; each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied when so filed as to form
with the Exchange Act and the rules and regulations thereunder; on the Effective
Date neither the Registration Statement nor the Prospectus as of the date
thereof and on the Closing Date included or will include any untrue statement of
a material fact or omitted or will omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the case of
the Registration Statement, not misleading, or in the case of the Prospectus, in
light of the circumstances in which they were made, not misleading; provided,
however, that Exodus makes no representations as to any statements or omissions
made in reliance upon and in conformity with information furnished to Exodus by
or on behalf of any Underwriter for use in connection with the preparation of
such documents.
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3. Delivery Payment. Delivery of and payment for the Designated
Securities shall be made at the office, on the date and at the time specified in
the Underwriting Agreement (the "Closing Date"), which Closing Date may be
postponed by agreement between the Underwriters, or the Representative, as the
case may be, and Exodus. Delivery of the Designated Securities shall be made to
the Underwriters or, if appropriate, the Representative for the respective
accounts of the Underwriters, in either case, against payment by the
Underwriters directly or through the Representative of the purchase price
thereof to or upon the order of Exodus by certified or official bank check or
checks payable in New York Clearing House funds, unless otherwise agreed in the
Underwriting Agreement. Certificates for the Designated Securities shall be
registered in such names and in such denominations as the Representative may
request in writing not less than one full business day in advance of the Closing
Date.
If so requested by the Underwriters or the Representative, as the case
may be, Exodus agrees to have the Designated Securities available for
inspection, checking and packaging in New York, New York, at least one business
day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Designated Securities for sale to the public upon the terms
and conditions set forth in the Prospectus.
5. Agreements. Exodus agrees with the Underwriters that:
(a) Exodus will cause the Prospectus Supplement to be filed pursuant
to Rule 424 under the Act and will promptly advise the Underwriters or the
Representative, as the case may be, when the Prospectus Supplement has been so
filed, and prior to the termination of the offering of the Designated Securities
will promptly advise such Underwriters or Representative (i) when any amendment
to the Registration Statement has been declared effective or has become
effective upon filing pursuant to Rule 462(c) under the Act or any further
supplement to the Prospectus has been filed, (ii) of any request by the
Commission for any amendment of the Registration Statement or the Prospectus or
for any additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of the
receipt by Exodus of any notification with respect to the suspension of the
qualification of the Designated Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. Exodus will use
its best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof. Exodus will not file any
amendment to the Registration Statement or supplement to the Prospectus relating
to the Designated Securities unless it has furnished the Underwriters or the
Representative, as the case may be, a copy prior to filing and will not file any
such proposed amendment or supplement to which such Underwriters or
Representative reasonably objects.
(b) If, at any time when a prospectus relating to the Designated
Securities is required to be delivered under the Act or any other applicable
securities law, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder,
Exodus will promptly notify the Underwriters or the Representative, as the case
may be, and will promptly prepare and file with the Commission, subject to
paragraph (a) of this Section 5, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
(c) Exodus will make generally available to its security holders and
to the Underwriters or the Representative, as the case may be, as soon as
practicable, but not later than 45 days after the end of the 12-month period
beginning at the end of the fiscal quarter of Exodus during which the filing of
the Prospectus Supplement pursuant to Rule 424 under the Act first occurs
(except not later than 90 days if such filing date-is in the last fiscal
quarter), an earnings statement (which need not be audited) of Exodus and its
consolidated subsidiaries, covering such 12-month period, which will satisfy the
provisions of Section 11 (a) of the Act.
(d) Exodus will furnish to the Underwriters or the Representative, as
the case may be, and counsel for such Underwriters or for such Representative
copies of the Registration Statement (including, if requested, the exhibits
thereto and the documents incorporated by reference in the Prospectus) and each
amendment or supplement thereto relating to the Designated Securities which is
thereafter filed pursuant to paragraph (a) or (b) of this Section 5 and to each
Underwriter, so long as delivery of a prospectus by an Underwriter or dealer may
be required by the Act or other applicable securities laws, as many copies of
the Prospectus and any amendments thereof and supplements thereto, relating to
the Designated Securities, as such Underwriters or such Representative may
reasonably request.
(e) Exodus will pay (i) all expenses incurred by it in the
performance of its obligations under this Agreement, (ii) reasonable fees
charged for rating the Designated Securities and for preparing a Blue Sky and
Legal Investment Memorandum with respect to the sale of the Designated
Securities and (iii) the expenses of printing or otherwise producing and
delivering the Designated Securities, the documents specified in paragraph (d)
of this Section 5 and any Blue Sky and Legal Investment Memorandum.
(f) Exodus will use its best efforts to arrange and pay for the
qualification of the Designated Securities for sale under the laws of such
jurisdictions as the Underwriters or the Representative, as the case may be, may
designate and to maintain such qualifications in effect so long as required for
the distribution of the Designated Securities; provided, however, that Exodus
shall not be required to qualify to do business in any jurisdiction where it is
not now qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so subject.
(g) If the sale of the Designated Securities provided for in an
Underwriting Agreement is not consummated by reason of any failure, refusal or
inability on the part of Exodus to perform any agreement on its part to be
performed (except for any failure so to perform on the part of Exodus engendered
by a failure, refusal or inability on the part of the Underwriters or any
Representative to perform any agreement on their part to be performed) or the
failure of any condition set forth in Section 6, Exodus will reimburse the
several
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Underwriters who are named in such Underwriting Agreement for all reasonable
out-of-pocket disbursements incurred by the Underwriters in connection with
their investigation, marketing and preparing to market the Designated
Securities, and upon such reimbursement Exodus shall have no further liability
to the Underwriters except as provided in Section 7.
(h) During the period beginning on the date of this Agreement and
terminating on the later of (i) the Closing Date or (ii) the date of notice to
Exodus by the Representative or the Underwriters, (which shall not exceed forty-
five days from the date of this Agreement), Exodus will not offer, sell,
contract to sell or otherwise dispose of any Designated Securities of Exodus, or
securities convertible into or exchangeable for Designated Securities, without
the prior written consent of such Representative or such Underwriters.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Designated Securities shall be subject to the
accuracy of the representations on the part of Exodus contained herein as of the
date hereof and the Closing Date, to the performance by Exodus of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or threatened as of the Closing Date;
(b) Fenwick & West LLP, counsel for Exodus, shall have furnished to
the Representative their opinion, dated the Closing Date, substantially in the
form attached hereto as Exhibit A;
(c) The Underwriters or the Representative, as the case may be, shall
have received from counsel for the Underwriters such opinion or opinions, dated
the Closing Date, with respect to such matters as such Underwriters or
Representative may reasonably require;
(d) Exodus shall have furnished to the Underwriters or the
Representative, as the case may be, a certificate, dated the Closing Date, of
Exodus, signed by any executive officer of Exodus, to the effect that the signer
of such certificate has carefully examined the Registration Statement, the
Prospectus and this Agreement and that:
(i) The representations of Exodus in this Agreement are true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and Exodus has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted and are pending or, to his or her knowledge, threatened as of
such date; and
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(iii) Since the date of the most recent financial statements
included in or incorporated by reference into the Prospectus, there has been no
material adverse change in the condition (financial or otherwise) of Exodus and
its consolidated subsidiaries, taken as a whole.
(e) The Underwriters or the Representative, as the case may be, shall
have received from KPMG LLP a letter, dated the Closing Date, which letter shall
be in form as may be agreed upon among such Underwriters or Representative,
Exodus and KPMG LLP, and shall cover such matters as may be reasonably requested
by such Underwriters or Representative.
(f) Prior to the Closing Date, Exodus shall have furnished to the
Underwriters or the Representative, as the case may be, such further
information, certificates and documents as they may reasonably request.
(g) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of Exodus and its subsidiaries considered as a whole
which the Underwriters or the Representative, as the case may be, concludes, in
its judgment, after consultation with Exodus, materially impairs the investment
quality of the Designated Securities so as to make it impractical or inadvisable
to proceed with the public offering or the delivery of the Designated Securities
as contemplated by the Prospectus and there shall not have been any decrease in
the ratings of any of Exodus's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act).
7. Indemnification and Contribution.
(a) Exodus agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter, and each
person, if any, who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus, or in any amendment thereof or
supplement thereto relating to the Designated Securities, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them, as so incurred, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that Exodus will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with information
furnished in writing to Exodus by or on behalf of any Underwriter through the
Representative or the Underwriters, as the case may be, for use in connection
with the preparation thereof. This indemnity agreement will be in addition to
any liability which Exodus may otherwise have.
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(b) Each Underwriter severally agrees to indemnify and hold harmless
Exodus, each of its directors, officers, employees and agents, and each person
who controls Exodus within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from Exodus to each Underwriter, but
only with reference to information furnished in writing to Exodus by or on
behalf of such Underwriter directly or through any Representative for use in the
preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party, and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel, to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
representatives representing the indemnified parties who are parties to such
action), (ii) the indemnifying- party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). An indemnifying party will not, without
the prior written consent of each indemnified party, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
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(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from Exodus or the Underwriters on grounds of policy or otherwise,
Exodus and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which Exodus or one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount appearing on the cover page of the Prospectus bears to
the public offering price appearing thereon and Exodus is responsible for the
balance; provided that (y) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Designated Securities) be responsible for any amount in excess of the
underwriting discount applicable to the Designated Securities purchased by such
Underwriter hereunder and (z) 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. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person who
controls Exodus within the meaning of either the Act or the Exchange Act, each
officer of Exodus who shall have signed the Registration Statement and each
director of Exodus shall have the same rights to contribution as Exodus, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify in writing such party or parties shall not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have hereunder or otherwise than under this paragraph (d).
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters or the Representative, as the case may
be, by written notice given to Exodus prior to delivery of and payment for the
Designated Securities, if prior to such time (i) trading in Exodus's Common
Stock or securities generally on the Nasdaq National Market shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of such Underwriters or such Representative, impracticable or
inadvisable to proceed with the offering or delivery of the Designated
Securities as contemplated by the Prospectus and Prospectus Supplement.
9. Representations and Indemnities to Survive. The respective agreements,
representations, indemnities and other statements of Exodus, or its officers and
of the Underwriters and/or any Representative set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, Exodus or any of the
officers, directors or controlling persons referred to in Section
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7 hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections S(e) and 7 hereof shall survive the termination or
cancellation of this Agreement.
10. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any Designated Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Designated
Securities set forth opposite their names in the appropriate schedule of the
Underwriting Agreement bears to the aggregate amount of Designated Securities
set forth opposite the names of all the remaining Underwriters) the Designated
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Designated Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the amount of Designated Securities
set forth in the appropriate schedule of the Underwriting Agreement, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Designated Securities, and if such
nondefaulting Underwriters do not purchase all the Designated Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
Exodus. In the event of a default by any Underwriter as set forth in this
Section 10, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative or Underwriters, as the case may be, shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to Exodus and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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EXHIBIT A
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[FORM OF FENWICK & WEST LLP OPINION]
A-1
