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Exhibit 1.1
3,000,000 SHARES
TUMBLEWEED COMMUNICATIONS CORP.
COMMON STOCK, PAR VALUE $0.001 PER SHARE
UNDERWRITING AGREEMENT
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July __, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES, INC.
DAIN RAUSCHER INCORPORATED
U.S. BANCORP PIPER JAFFRAY
ING BARINGS LLC,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. Tumbleweed Communications Corp., a Delaware
corporation ("COMPANY"), proposes to issue and sell 1,500,000 shares of its
Common Stock, par value $0.001 per share ("SECURITIES") and Jeffrey C. Smith and
Jean-Christophe D. Bandini (collectively, the "FOUNDER SELLING STOCKHOLDERS"),
Hikari Tsushin, Inc. ("HIKARI") and certain other stockholders listed in
Schedule A hereto (the "MANAGEMENT SELLING STOCKHOLDERS," together with the
Founder Selling Stockholders and Hikari, the "SELLING STOCKHOLDERS") propose
severally to sell an aggregate of 1,500,000 outstanding shares of the Securities
(such 3,000,000 shares of Securities being hereinafter referred to as the "FIRM
SECURITIES"). Hikari also proposes to sell to the Underwriters, at the option of
the Underwriters, an aggregate of not more than 450,000 outstanding shares of
the Company's Securities, as set forth below (such 450,000 additional shares
being hereinafter referred to as the "OPTIONAL SECURITIES"). The Firm Securities
and the Optional Securities are herein collectively called the "OFFERED
SECURITIES." The Company and the Selling Stockholders, severally and not
jointly, except as otherwise indicated, hereby agree with the several
Underwriters named in Schedule B hereto ("UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS.
(a) The Company and, the Founder Selling Stockholders, represent and
warrant to, and agree with, the several Underwriters that:
(i) A registration statement (No. 333-41188) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933 ("ACT")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "INITIAL REGISTRATION STATEMENT") has been declared effective,
either (A) an additional registration statement (the "ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b)
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("RULE 462(b)") under the Act and, if so filed, has become effective
upon filing pursuant to such Rule and the Offered Securities all have
been duly registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement or
(B) such an additional registration statement is proposed to be filed
with the Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional registration
statement means (A) if the Company has advised the Representatives that
it does not propose 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),
or (B) if the Company has advised the Representatives 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. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT." The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT." The Initial Registration Statement and the Additional
Registration are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT." The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "PROSPECTUS." No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include 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, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the
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Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents includes,
or will include, any untrue statement of a material fact or omits, 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
Prospectus, in light of the circumstances under which they were made)
not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue
statement of a material fact 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 Prospectus, in light of the circumstances
under which they were made) not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
or any Selling Stockholder specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b) or 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority to own its properties and conduct
its business now being conducted and as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification except as would not have a material adverse effect
on the business, prospects, results of operations or financial
condition of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(iv) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with full corporate power and
authority to own its properties and conduct its business as now being
conducted and as described in the Prospectus except as would not have a
Material Adverse Effect; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
the failure to be so qualified would not have a Material Adverse
Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and except as described in the
Prospectus the capital stock of each subsidiary owned by the Company is
owned free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been issued, delivered and paid for in accordance with
this Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and nonassessable
and the authorized shares of Common Stock conform to the description
thereof contained in the Prospectus in all material respects; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements and
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understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such
securities in the securities registered pursuant to a Registration
Statement that have not been included or for which such right have not
been waived or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(viii) The Offered Securities have been approved for quotation
and trading on the Nasdaq Stock Market's National Market subject to
official notice of issuance.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
in connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the Act
and the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and such as may be required under state securities laws or
pursuant to the rules and regulations of the NASD.
(x) The execution, delivery and performance of this Agreement,
and the issuance and sales of the Offered Securities will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or by-laws of
the Company or any such subsidiary, except in each case as would not
have a Material Adverse Effect, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all properties and
assets owned by them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them, except in
each case as would not have a Material Adverse Effect; and except as
disclosed in the Prospectus, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or
to be made thereof by them, except in each case as would not have a
Material Adverse Effect.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xiv) No labor dispute with the employees of the Company
exists or, to the knowledge of the Company, is imminent that might have
a Material Adverse Effect.
(xv) Except as disclosed in the Prospectus, the Company and
its subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any
intellectual property
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rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect, and the Company is not aware
of any pending investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xviii) The consolidated financial statements included in each
Registration Statement and the Prospectus present fairly in all
material respects the financial position of the Company and its
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and except as otherwise disclosed in
the Prospectus, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; the financial schedules
included in each Registration Statement present fairly the information
required to be stated therein.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xx) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(b) Each Selling Stockholder, severally and not jointly, represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date.
(ii) Except as disclosed in the Prospectus, there are no
contracts, agreements or
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understandings between such Selling Stockholder and any person that
would give rise to a valid claim against such Selling Stockholder or
any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(iii) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles.
(v) Each of the (a) Custody Agreement signed by such Selling
Stockholder and the Custodian, relating to the deposit of the Offered
Securities to be sold by such Selling Stockholder (the "Custody
Agreement") and (b) power of attorney ("Power of Attorney") appointing
certain individuals named therein as the Selling Stockholder's
attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set forth
therein relating to the transactions contemplated hereby and by the
Prospectus, of such Selling Stockholder has been duly authorized,
executed and delivered by such Selling Stockholder and is a valid and
binding agreement of such Selling Stockholder, enforceable in
accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles.
(vi) The execution and delivery by such Selling Stockholder
of, and the performance by such Selling Stockholder of his obligations
under, this Agreement, the Custody Agreement and the Power of Attorney
or the consummation by such Selling Stockholder or any of the other
transactions contemplated hereby, will not contravene or conflict with,
result in a breach of, or constitute a default under, or require the
consent of any other party to any agreement or instrument to which such
Selling Stockholder is bound or under which he is entitled to any right
or benefit, any provision of applicable law or any judgment, order,
decree or regulation applicable to such Selling Stockholder of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder. No
consent, approval, authorization or other order of, or registration or
filing with, any court or other governmental authority or agency, is
required for the consummation by such Selling Stockholder of the
transactions contemplated in this Agreement, except such as have been
obtained or made and are in full force and effect under the Act,
applicable state securities or blue sky laws and from the National
Association of Securities Dealers, Inc. ("NASD").
(vii) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Securities to facilitate the sale or
resale of the Securities.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis
of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company and each
Selling Stockholder 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 Stockholder, at a purchase price
of $ per share, that number of Firm Securities (rounded up or down, as
determined by Credit Suisse First Boston Corporation ("CSFBC") in its
discretion, in order to avoid fractions) obtained by multiplying Firm
Securities in the case of the Company and the number of Firm Securities set
forth opposite the name of such Selling Stockholder in Schedule A hereto, in
the case of a Selling Stockholder, in each case by a fraction the numerator
of which is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is the total
number of Firm Securities.
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Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with the Custodian. Each
Selling Stockholder agrees that the shares represented by the certificates held
in custody for the Selling Stockholders under such Custody Agreements are
subject to the interests of the Underwriters hereunder, that the arrangements
made by the Selling Stockholders for such custody are to that extent
irrevocable, and that the obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the death of any
individual Selling Stockholder or the occurrence of any other event, or in the
case of a trust, by the death of any trustee or trustees or the termination of
such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or other event or
termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank designated by the Company which shall be
reasonably acceptable to CSFBC drawn to the order of the Company in the case of
1,500,000 shares of Firm Securities and the Custodian in the case of 1,500,000
shares of Firm Securities for the benefit of the Selling Stockholders, at the
office of Skadden, Arps, Slate, Meagher & Flom LLP at 10:00 A.M., New York time,
on August ___, 2000, or at such other time not later than seven full business
days thereafter as CSFBC and the Company determine, such time being herein
referred to as the "FIRST CLOSING DATE." For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, as amended, the First Closing Date (if later
than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities of all of the Offered Securities
sold pursuant to the Offering. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests and will be made available for checking and
packaging at the office of Skadden, Arps, Slate, Meagher & Flom LLP at least 24
hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
Hikari from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. Hikari agrees, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions set forth herein, to sell to the Underwriters the number of Optional
Securities specified in such notice and the Underwriters agree, severally and
not jointly, to purchase such Optional Securities. Such Optional Securities
shall be purchased from Hikari for the account of each Underwriter in the same
proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by CSFBC to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. No Optional Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by CSFBC to the Company and Hikari.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be reasonably determined
by CSFBC but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Custodian will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of Hikari the case of the Optional Securities. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the above
office of Skadden, Arps, Slate, Meagher & Flom LLP at a reasonable time in
advance of such Optional Closing Date.
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4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by CSFBC, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business day after
the Effective Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on or prior
to the time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend or
supplement the initial or any additional registration statement as filed or the
related prospectus or the Initial Registration Statement, the Additional
Registration Statement (if any) or the Prospectus and will not effect such
amendment or supplementation without CSFBC's written consent which shall not
unreasonably be withheld; and the Company will also advise CSFBC promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any amendment
or supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its reasonable efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs 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 to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company will promptly notify CSFBC of such event and will
promptly prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial Registration Statement (or, if
later, the Effective Date of the Additional Registration Statement) which will
satisfy the provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "AVAILABILITY DATE" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "AVAILABILITY DATE" means the 90th day after the end of
such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (of which will be signed and will include all exhibits),
each related preliminary prospectus, and, so long as a prospectus relating to
the Offered Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as CSFBC
reasonably requests. The Prospectus shall be so furnished on or prior to 3:00
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P.M., New York time, on the business day following the later of the execution
and delivery of this Agreement or the Effective Time of the Initial Registration
Statement. All other such documents shall be so furnished as soon as available.
The Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC designates and
will continue such qualifications in effect so long as required for the
distribution; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a securities dealer in any jurisdiction or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise
subject.
(g) During the period of five years hereafter, the Company will furnish
to the Representatives and, upon request, to each of the other Underwriters, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934, as amended, or mailed to stockholders, and (ii)
from time to time, such other publicly available information concerning the
Company as CSFBC may reasonably request.
(h) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to any additional
shares of its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the intention
to make any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC except (i) the Offered Securities to be sold to the
Underwriters hereunder, (ii) issuances related to the Company's acquisition of
Interface Systems, Inc., (iii) pursuant to the exercise of options, in each
case, outstanding as of the date hereof, grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof or as disclosed in
the Prospectus and issuances of securities pursuant to the exercise of such
options, or (iv) issuances of securities pursuant to the terms of the Company's
1999 Employee Stock Purchase Plan; and provided, further, that the Company may
file a registration statement or statements under the Securities Act with
respect to the foregoing.
(i) The Company and each Selling Stockholder agree with the several
Underwriters that the Company and such Selling Stockholder will pay all expenses
incident to the performance of the obligations of the Company and such Selling
Stockholder, as the case may be, under this Agreement, for any filing fees and
other expenses (including reasonable fees and disbursements of counsel) in
connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions as CSFBC designates and the printing of memoranda relating
thereto, for the filing fee incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the National Association of Securities Dealers, Inc. of the Offered Securities,
for any travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities, for any transfer taxes on the
sale by the Selling Stockholders of the Offered Securities to the Underwriters
and for expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(j) Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group on or prior to the First 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).
(k) Each Selling Stockholder agrees (other than Hikari), for a period
of 90 days after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any additional shares of the Securities of the
Company or securities convertible into or exchangeable or exercisable for any
shares of Securities, enter into a transaction which would have the same effect,
or enter into any swap, hedge or other arrangement that transfers, in whole or
in
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part, any of the economic consequences of ownership of the Securities, whether
any such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly disclose
the intention to make any such offer, sale, pledge or disposition, or enter into
any such transaction, swap, hedge or other arrangement, without, in each case,
the prior written consent of CSFBC PROVIDED, HOWEVER, that the Selling
Stockholders may make a disposition: (i) as a bona fide gift or gifts, provided
that the donee or donees thereof agree in writing to be bound by the terms of
this Agreement; (ii) as a distribution to limited partners or shareholders of
the undersigned, provided that the distributees thereof agree in writing to be
bound by the terms of this Agreement; (iii) if the undersigned is an individual,
either during his or her lifetime or on death by will or intestacy to his or her
immediate family or to a trust the beneficiaries of which are exclusively the
undersigned and/or a member or members of his or her immediate family, provided
that prior to any such transfer each transferee agrees in writing to be bound by
the terms of this Agreement; (iv) with respect to dispositions of common stock
acquired on the open market, (v) with the prior written consent of CSFBC; or
(vi) with respect to the delivery of common shares to the Company in connection
with the exercise of options issued on or prior to the date of the final
prospectus held by the Selling Shareholders under the Company's 1999 Stock
Purchase Plan. For the purposes of this paragraph, "immediate family" shall mean
spouse, lineal descendant, father, mother, brother or sister of the transferor.
(l) Hikari agrees, for a period of 30 days after the date of the
initial public offering of the Offered Securities, not to offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, any additional
shares of the Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of CSFBC PROVIDED, HOWEVER, that Hikari may make a disposition: (i) as a
bona fide gift or gifts, provided that the donee or donees thereof agree in
writing to be bound by the terms of this Agreement; (ii) as a distribution to
limited partners or shareholders of the undersigned, provided that the
distributees thereof agree in writing to be bound by the terms of this
Agreement; (iii) with respect to dispositions of common stock acquired on the
open market, or (iv) with the prior written consent of the CSFBC.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of KPMG LLP confirming that they are independent public
accountants for the Company within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the consolidated financial statements and
schedules examined by them and included in the Registration Statements
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
consolidated financial
10
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statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim consolidated financial
statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited condensed consolidated financial
statements included in the Registration Statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should be
made to such unaudited condensed consolidated financial
statements for them to be in conformity with generally
accepted accounting principles;
(B) the unaudited condensed consolidated total
revenues operating loss, net loss and basic and diluted net
loss per share amounts for the six-month periods ended June
30, 2000 included in the Prospectus do not agree with the
amounts set forth in the unaudited consolidated financial
statements for those same periods or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited consolidated statements of operation;
(C) at the date of the latest available consolidated
balance sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to the
date of this Agreement, there was any change in the capital
stock (except pursuant to option exercises or other issuances
described in the Prospectus) or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was
any decrease in consolidated net assets, as compared with
amounts shown on the latest consolidated balance sheet
included in the Prospectus except as set forth in such
letters; provided that in the event that the letters referred
to above set forth any changes in the capital stock, increases
in short term or long term debt or decreases in net current
assets, or total assets, it shall be a further condition to
the obligations of the Underwriters that (i) such letters
shall be accompanied by a written explanation of the company
as to the significance thereof, unless the Representatives
deem such explanation unnecessary, and (ii) such changes,
decreases or increases do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed
with the purchase and delivery of the Offered Securities as
contemplated by such Registration Statement, as amended as of
the date hereof;
(D) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year in total revenue
operating loss, net loss and basic and diluted net loss per
share amounts of net loss; except in all cases set forth in
clauses (B) and (C) above for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or
which are described in such letter; or
(E) the pro forma financial statements included in
the Prospectus do not comply as to form in all material
respects with applicable accounting requirements, including
Rule 11-02 of Regulation S-X, and that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements; and
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<PAGE>
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(v) if requested by the Representatives, any other information
and statements of the type ordinarily included in such accountants'
"comfort" letters to underwriters, delivered in accordance with
Statement of Auditing Standards Nos. 72 and 76 (or any successor
bulletins) with respect to the audited, unaudited and pro forma
financial statements and information contained in the Registration
Statement and Prospectus.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements.
(b) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of Arthur Andersen LLP confirming that they are independent
public accountants for Interface Systems, Inc. within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating to the
effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe
that:
(A) the unaudited condensed consolidated financial
statements included in the Registration Statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should be
made to such unaudited condensed consolidated financial
statements for them to be in conformity with generally
accepted accounting principles;
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<PAGE>
(B) the unaudited condensed consolidated total
revenues operating loss, net loss and basic and diluted net
loss per share amounts for the six-month periods ended June
30, 2000 included in the Prospectus do not agree with the
amounts set forth in the unaudited consolidated financial
statements for those same periods or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited consolidated statements of operation;
(C) at the date of the latest available consolidated
balance sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to the
date of this Agreement, there was any change in the capital
stock (except pursuant to option exercises or other issuances
described in the Prospectus) or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was
any decrease in consolidated net assets, as compared with
amounts shown on the latest consolidated balance sheet
included in the Prospectus except as set forth in such
letters; provided that in the event that the letters referred
to above set forth any changes in the capital stock, increases
in short term or long term debt or decreases in net current
assets, or total assets, it shall be a further condition to
the obligations of the Underwriters that (i) such letters
shall be accompanied by a written explanation of the Company
as to the significance thereof, unless the Representatives
deem such explanation unnecessary, and (ii) such changes,
decreases or increases do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed
with the purchase and delivery of the Offered Securities as
contemplated by such Registration Statement, as amended as of
the date hereof; or
(D) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year in total revenue
operating loss, net loss and basic and diluted net loss per
share amounts of net loss; except in all cases set forth in
clauses (B) and (C) above for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(v) if requested by the Representatives, any other information
and statements of the type ordinarily included in such accountants'
"comfort" letters to underwriters, delivered in accordance with
Statement of Auditing Standards Nos. 72 and 76 (or any successor
bulletins) with respect to the audited, unaudited and pro forma
financial statements and information contained in the Registration
Statement and Prospectus.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective
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<PAGE>
amendment to be filed shortly prior to its Effective Time, and (iii)
"PROSPECTUS" shall mean the prospectus included in the Registration
Statements.
(c) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by CSFBC. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Offered Securities; (ii) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iii) any banking moratorium declared by U.S. Federal
or New York authorities; or (iv) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the Offered
Securities.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Company, substantially to the effect that:
(i) The Company has been duly incorporated and is a
corporation validly existing and in good standing under the laws of the
State of Delaware with corporate power and authority to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in California and New Jersey;
(ii) The Offered Securities delivered on such Closing Date and
all other outstanding shares of the Common Stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus in all material respects; and the stockholders of the
Company have no statutory, or to our knowledge, contractual preemptive
rights with respect to the issuance Securities that have not been
waived;
(iii) Except as described in the Registration Statement or
Prospectus, to such counsel's knowledge, no holders of any securities
of the Company have registration rights under any agreement or
instrument filed by the Company as exhibits to the Registration
Statement that have not been waived or satisfied;
(iv) No Governmental Approval or consent, filing, registration
or approval of or with the Commission is required to be made or
obtained by the Company for the execution and delivery of this
Agreement in connection with the issuance or sale of the Offered
Securities by the Company pursuant to this Agreement, except such as
have been obtained and made and such as may be required by the NASD or
state securities laws;
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(v) The execution and delivery of this Agreement by the
Company and the issuance and sale of the Offered Securities will not
(i) require any Governmental Approvals except such as have been
obtained and made, (ii) conflict with the Certificate of Incorporation
or the Bylaws, (iii) constitute a violation of or default under the
terms of any agreement or instrument filed by the Company as exhibits
to the Registration Statement (except that we do not express any
opinion as to any covenant, restriction or provision of any such
agreement or instrument with respect to financial covenants, ratios or
tests or any aspect of the financial condition or results of operations
of the Company) or (iv) violate or conflict with, or result in any
contravention of, any Applicable Law or any Applicable Order;
(vi) The Registration Statement and the Prospectus, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations, except that, in each case, such counsel shall express no
opinion as to the financial statements, schedules and other financial
and statistical data included therein or excluded therefrom or the
exhibits thereto, and such counsel shall not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus;
(vii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company; and
(viii) The statements (A) in the Prospectus under the captions
"Description of Capital Stock" and, to the extent of the description of
the Underwriting Agreement, the first, second, and ninth paragraphs
under the caption "Underwriting" and (B) in the Registration Statement
in Items 14 and 15, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly summarize the matters referred to therein in all
material respects.
In addition, such opinion shall contain a statement that such counsel
has been orally advised that the Initial Registration Statement was
declared effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any) became
effective under the Act as of the date and time (if determinable)
specified in such opinion. In addition, such opinion shall state that
such counsel has been orally advised by the Commission that no stop
order suspending the effectiveness of the Registration Statement or any
part thereof has been issued and to the best of such counsel's
knowledge, no proceedings for that purpose have been instituted or are
pending or threatened by the Commission.
Such opinion shall also contain a statement to the effect that such
counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent
accountants of the Company, representatives of the Underwriters and
Underwriters' counsel at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and,
although such counsel does not pass upon, and assumes no responsibility
for, the accuracy completeness or fairness of the statements contained
in the Registration Statement or the Prospectus and has made no
independent check or verification thereof, on the basis of the
foregoing, no facts have come to the attention of such counsel that
have led them to believe that the Registration Statement, at the time
it became effective, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of its date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion or belief as to
the financial statements, schedules or other financial data and
statistical data included therein or excluded therefrom contained in
the Registration Statements or the Prospectus or to the exhibits to the
Registration Statement.
(e) The Representatives shall have received the opinion contemplated in
the Power of Attorney executed and delivered by each Selling Stockholder and an
opinion, dated such Closing Date, of Skadden,
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<PAGE>
Arps, Slate, Meagher & Flom LLP, counsel for the Selling Stockholders (other
than Hikari):
(i) Assuming that neither the Representatives nor any
Underwriter has notice of any adverse claims with respect to
certificate number[s] ___ registered in the names of _____________ and
evidencing ___ Secondary Shares then, upon delivery to the Underwriters
of such certificate[s] indorsed to the Representatives, the
Representatives will acquire such certificate[s] (and the shares
represented thereby) free of any adverse claims under Section 8-303 of
the Uniform Commercial Code as in effect on the date hereof in the
State of New York (the "New York UCC"). As used herein, "notice of
adverse claim" has the meaning set forth in Section 8-105 of the New
York UCC, and includes, without limitation, any adverse claim which the
Representative or any Underwriter would discover upon any investigation
which such person has a duty, imposed by statute or regulation, to
investigate.;
(ii) No Governmental Approval is required to be obtained or
made by any Selling Stockholder for the consummation of the
transactions contemplated by the Custody Agreement or this Agreement in
connection with the sale of the Offered Securities sold by the Selling
Stockholders, except such as have been obtained and made and such as
may be required by the NASD under state securities laws;
In the case of securities delivered in electronic form, the following opinion
may be issued in lieu of the preceding paragraph:
With respect to the security entitlements (as defined in Section 8-102(a)(17) of
the New York UCC) being purchased by the Underwriters, an action based on an
adverse claim to [indicate number] of the Shares, whether framed in conversion,
replevin, constructive trust, equitable lien, or other theory, may not be
asserted successfully against the Underwriters if and to the extent the
Underwriters acquire security entitlements with respect to such Shares from the
Depository Trust Company ("DTC") and neither the Representatives nor any
Underwriter has notice of any adverse claims.
(f) The Representatives shall have received the opinion contemplated in
the Power of Attorney executed and delivered by Hikari an opinion, dated such
Closing Date, of Nishimura & Partners, counsel for Hikari, to the effect that:
(i) Hikari had valid and unencumbered title to the Offered
Securities delivered by Hikari on such Closing Date and had full right,
power and authority to sell, assign, transfer and deliver the Offered
Securities delivered by Hikari on such Closing Date hereunder; and the
several Underwriters have acquired valid and unencumbered title to the
Offered Securities purchased by them from Hikari on such Closing Date
hereunder;
(ii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by Hikari for the consummation of the
transactions contemplated by the Custody Agreement or this Agreement in
connection with the sale of the Offered Securities sold by Hikari,
except such as have been obtained and made under the Act and such as
may be required under state securities laws;
(iii) The execution, delivery and performance of the Custody
Agreement and this Agreement and the consummation of the transactions
therein and herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
Hikari or any of their properties or any agreement or instrument to
which Hikari is a party or by which Hikari is bound or to which any of
the properties of Hikari is subject, or the charter or by-laws of
Hikari which is a corporation;
(iv) The Power of Attorney and related Custody Agreement with
respect to Hikari has been duly authorized, executed and delivered by
the Hikari and constitute valid and legally binding obligations of
Hikari enforceable in accordance with their terms, subject to
bankruptcy, insolvency,
16
<PAGE>
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and
(v) This Agreement has been duly authorized, executed and
delivered by Hikari.
(g) The Representatives shall have received from Gunderson Dettmer
Stough Villeneuve Franklin & Hachigian, LLP, counsel for the Underwriters, such
opinion or opinions, dated such Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities delivered on such Closing
Date, the Registration Statements, the Prospectus and other related matters as
the Representatives may require, and the Selling Stockholders and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such opinion,
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP may rely as to the
incorporation of the Company and all other matters governed by Delaware law upon
the opinion of Skadden, Arps, Slate, Meagher & Flom LLP to above.
(h) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and to their knowledge, no proceedings
for that purpose have been initiated or threatened by the Commission; the
Additional Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b),
including payment of the applicable filing fee in accordance with Rule 111(a) or
(b) under the Act, prior to the time the Prospectus was printed and distributed
to any Underwriter; and, subsequent to the respective dates of the most recent
financial statements in the Prospectus, there has been no material adverse
change, nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole except as set
forth in or contemplated by the Prospectus or as described in such certificate.
(i) The Representatives shall have received a letter, dated such
Closing Date, from each of KPMG LLP and Arthur Andersen LLP which meets the
requirements of subsections (a) and (b) of this Section, except that the
specified date referred to in such subsection will be a date not more than three
days prior to such Closing Date for the purposes of this subsection.
(j) On or prior to the date of this Agreement, The Representatives
shall have received lockup letters from each of executive officers and directors
of the Company and each of the Selling Stockholders.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company, the Founder Selling Stockholders, Joseph C. Consul and
Hikari, jointly and severally, will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if any who
controls such Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
17
<PAGE>
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company 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 an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered Securities
was required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus if the Company had
previously furnished copies thereof to such Underwriter.
Insofar as the foregoing indemnity agreement, or the representations
and warranties contained in Section 2(a)(ii), may permit indemnification for
liabilities under the Act of any person who is an Underwriter or a partner or
controlling person of an Underwriter within the meaning of Section 15 of the Act
and who, at the date of this Agreement, is a director, officer or controlling
person of the Company, the Company has been advised that in the opinion of the
Commission such provisions may contravene Federal public policy as expressed in
the Act and may therefore be unenforceable. In the event that a claim for
indemnification under such agreement or such representations and warranties for
any such liabilities (except insofar as such agreement provides for the payment
by the Company of expenses incurred or paid by a director, officer or
controlling person in the successful defense of any action, suit or proceeding)
is asserted by such a person, the Company will submit to a court of appropriate
jurisdiction (unless in the opinion of counsel for the Company the matter has
already been settled by controlling precedent) the question of whether or not
indemnification by it for such liabilities is against public policy as expressed
in the Act and therefore unenforceable, and the Company will be governed by the
final adjudication of such issue.
In addition, the Company and each of the Underwriters agree with the
Selling Stockholders that any claim of such Underwriter against the Selling
Stockholders for indemnification, reimbursement or advancement of expenses
pursuant to this Section 7 or for breach of any representation, warranty or
covenant in this Agreement other than for information provided by such Selling
Stockholder for inclusion in the Registration Statements or for any breach of
any representation or warranty in Section 2(b) hereof) shall first be sought by
such Underwriter to be satisfied in full by the Company and shall be satisfied
by the Selling Stockholders only to the extent that (i) such claim has not been
satisfied in full by the Company and (ii) 45 days have passed since the
termination of active negotiations between the Company and the Underwriters
regarding such claim. The indemnity provided for in this Section 7 shall be in
addition to any liability which the Selling Stockholders may otherwise have.
Selling Stockholders will not, without the prior written consent of the
Representatives, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any such Representatives
or any person who controls any such Representatives is a party to such claim,
action, suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of all of the Underwriters and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(b) The Management Selling Stockholders, severally and not jointly,
will indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue
18
<PAGE>
statement or alleged untrue statement or omission or alleged omission was made
in any Registration Statement or Prospectus or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred , it being understood and agreed that the
only such information furnished by any Management Selling Stockholder consists
of the information relating to such Stockholder specifically under the caption
"Principal and Selling Stockholders" in the Prospectus; provided, however, that
the Selling Stockholders 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 an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished copies thereof to such
Underwriter.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls them or any of them within the meaning of Section 15 of the Act, and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, 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 each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company and
each Selling Stockholder in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of (i) the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the fourth paragraph under the caption "Underwriting" and the
information contained in the tenth and eleventh paragraphs under the caption
"Underwriting."
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of
19
<PAGE>
any pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company or the Selling Stockholders, as the case may be, on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company or
the Selling Stockholders, as the case may be, 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 as well as any other
relevant equitable considerations. The relative benefits received by the Company
or the Selling Stockholders, as the case may be, 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 Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters. 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, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter (as
hereinafter defined) within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
(g) The liability of any Selling Stockholder under the representations
and warranties contained in Section 2 hereof and under the indemnity and
reimbursement agreements contained in the provisions of this Section 7 shall be
limited to an amount equal to the net proceeds of the stock sold by such Selling
Stockholder to the Underwriters. The Company and the Selling Stockholders may
agree, as among themselves and without limiting the rights of the Underwriters
under this Agreement, as to the respective amounts of such liability for which
they each shall be responsible.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are
20
<PAGE>
obligated to purchase on such Closing Date, CSFBC may make arrangements
satisfactory to the Company and the Selling Stockholders for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect
shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (ii), (iii) or (iv) of Section 6(d),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, with a copy (which shall not constitute
notice) to Gregory K. Miller, Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP, 155 Constitution Drive, Menlo Park, California 94025, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at 700 Saginaw Drive, Redwood City, California 94063, Attention General
Counsel, with a copy (which shall not constitute) to Gregory C. Smith, Skadden,
Arps, Slate, Meagher & Flom LLP, 525 University Avenue, Suite 220, Palo Alto,
California 94301, or, if sent to Hikari, will be mailed, delivered or
telegraphed and confirmed to it at 22F Ohtemachi Nomura Building, 2-1-1
Ohtemachi, Chiyoda-ku, Tokyo, Japan, or the Selling Stockholders or any of them
(other than Hikari), will be mailed, delivered or telegraphed and confirmed to
Joseph C. Consul or Bernard Cassidy as Attorney-In-Fact at 700 Saginaw Drive,
Redwood City, California 94063; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
12. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. Joseph Consul or Bernard
21
<PAGE>
Cassidy will act for the Selling Stockholders in connection with such
transactions, and any action under or in respect of this Agreement taken by
Joseph Consul or Bernard Cassidy will be binding upon all the Selling
Stockholders.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. _______, as its authorized agent in the
Borough of Manhattan in The City of New York upon which process may be served in
any such suit or proceeding, and agrees that service of process upon such agent,
and written notice of said service to the Company by the person serving the same
to the address provided in Section 10, shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action as may be necessary to
maintain such designation and appointment of such agent in full force and effect
for a period of seven years from the date of this Agreement.
22
<PAGE>
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
TUMBLEWEED COMMUNICATIONS CORP.
By__________________________________
Jeffrey C. Smith
Chief Executive Officer
SELLING STOCKHOLDERS:
HIKARI TSUSHIN, INC.
____________________________________
By:
Title: Attorney-in-Fact
JEFFREY C. SMITH
____________________________________
By:
Title: Attorney-in-Fact
JEAN-CHRISTOPHE C. BANDINI
____________________________________
By:
Title: Attorney-in-Fact
JOSEPH C. CONSUL
____________________________________
By:
Title: Attorney-in-Fact
DONALD TAYLOR
____________________________________
By:
Title: Attorney-in-Fact
23
<PAGE>
SHOMIT GHOSE
____________________________________
By:
Title: Attorney-in-Fact
MARK R. PASTORE
____________________________________
By:
Title: Attorney-in-Fact
KERRY S. CHAMPION
____________________________________
By:
Title: Attorney-in-Fact
ERIC HAUTEMONT
____________________________________
By:
Title: Attorney-in-Fact
MICHAEL J. EARHART
____________________________________
By:
Title: Attorney-in-Fact
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES, INC.
DAIN RAUSCHER INCORPORATED
U.S. BANCORP PIPER JAFFRAY
ING BARINGS LLC
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By ___________________________________
Name _________________________________
Title ________________________________
24
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES
SELLING STOCKHOLDER TO BE SOLD TO BE SOLD
------------------- --------------- ----------
<S> <C> <C>
Hikari Tsushin, Inc. 1,200,000 450,000
Jeffrey C. Smith 100,000 0
Jean-Christophe D. Bandini 80,000 0
Shomit A. Ghose 20,000 0
Donald Taylor 20,000 0
Joseph C. Consul 20,000 0
Kerry S. Champion 20,000 0
Mark R. Pastore 20,000 0
Michael J. Earhart 10,000 0
Eric Hautemont 10,000 0
--------- -------
Total............................................... 1,500,000 450,000
--------- -------
</TABLE>
25
<PAGE>
SCHEDULE B
<TABLE>
<CAPTION>
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
<S> <C>
Credit Suisse First Boston Corporation................................
Chase Securities, Inc.
Dain Rauscher Incorporated
U.S. Bancorp Piper Jaffray
ING Barings LLC
---------------
Total......................................
===============
</TABLE>
26
