<PAGE>
As filed with the Securities and Exchange Commission on February 8, 2000
Registration No. 333-90253
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
Vicinity Corporation
(Exact name of registrant as specified in its charter)
---------------
<TABLE>
<S> <C> <C>
Delaware 7374 77-0414631
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization Classification Code Number) Identification Number)
</TABLE>
1135 A San Antonio Road
Palo Alto, California 94303
(650) 237-0300
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
---------------
Emerick M. Woods
Chief Executive Officer
Vicinity Corporation
1135A San Antonio Road
Palo Alto, California 94303
(650) 237-0300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies to:
<TABLE>
<S> <C>
Christopher L. Kaufman, Esq. Bruce Dallas, Esq.
Anthony J. Richmond, Esq. Davis Polk & Wardwell
Latham & Watkins 1600 El Camino Real
135 Commonwealth Drive Menlo Park, California 94025
Menlo Park, California 94025 (650) 752-2000
(650) 328-4600
</TABLE>
---------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement is declared effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_] ______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] _____________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
---------------
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
Explanatory Note
The purpose of this Amendment No. 4 to the Registration Statement is to file
Exhibit 10.29 to the Registration Statement as set forth in Item 16(a) of Part
II.
<PAGE>
Part II
Information Not Required in Prospectus
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than the
underwriting discount, payable by the Registrant in connection with the sale of
the Common Stock being registered. All amounts are estimates except the SEC
registration fee, the NASD filing fees and the Nasdaq National Market listing
fee.
<TABLE>
<CAPTION>
Amount to
Be Paid
----------
<S> <C>
SEC registration fee............................................. $28,433
NASD filing fee.................................................. 10,965
Nasdaq National Market listing fee............................... 95,000
Legal fees and expenses.......................................... 350,000
Accounting fees and expenses..................................... 350,000
Printing and engraving........................................... 275,000
Blue sky fees and expenses (including legal fees)................ 2,500
Transfer agent fees.............................................. 15,000
Miscellaneous.................................................... 23,102
----------
Total.......................................................... $1,150,000
==========
</TABLE>
-------------------
* To be provided by amendment.
Item 14. Indemnification of Directors and Officers
Our Certificate of Incorporation in effect as of the date hereof, and our
Restated Certificate of Incorporation to be in effect upon the closing of this
offering (collectively, the "Certificate") provides that, except to the extent
prohibited by the Delaware General Corporation Law, as amended (the "DGCL"),
the Registrant's directors shall not be personally liable to the Registrant or
its stockholders for monetary damages for any breach of fiduciary duty as
directors of the Registrant. Under the DGCL, the directors have a fiduciary
duty to the Registrant which is not eliminated by this provision of the
Certificate and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of nonmonetary relief will remain available. In
addition, each director will continue to be subject to liability under the DGCL
for breach of the director's duty of loyalty to the Registrant, for acts or
omissions which are found by a court of competent jurisdiction to be not in
good faith or involving intentional misconduct, for knowing violations of law,
for actions leading to improper personal benefit to the director, and for
payment of dividends or approval of stock repurchases or redemptions that are
prohibited by the DGCL. This provision also does not affect the directors'
responsibilities under any other laws, such as the Federal securities laws. The
Registrant may obtain for liability insurance for its officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its directors and
officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that this
provision shall not eliminate or limit the liability of a director: (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) arising under
Section 174 of the DGCL or (iv) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not
II-1
<PAGE>
be deemed exclusive of any other rights to which the directors and officers may
be entitled under the corporation's bylaws, any agreement, a vote of
stockholders or otherwise. The Certificate eliminates the personal liability of
directors to the fullest extent permitted by Section 102(b)(7) of the DGCL and
provides that the Registrant may fully indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (whether civil, criminal, administrative
or investigative) by reason of the fact that such person is or was a director
or officer of the Registrant, or is or was serving at the request of the
Registrant as a director or officer of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding.
Item 15. Recent Sales of Unregistered Securities
(a) Issuances of Shares of Preferred Stock and warrants exercisable for
Preferred Stock
On December 12, 1996, the Registrant issued and sold 3,304,000 shares of its
Series C Preferred Stock to 21st Century Internet Fund, L.P., CMG@Ventures I,
L.P. and EnCompass Group, Inc. for an aggregate purchase price equal to
$4,989,040. This sale was deemed to be exempt from registration under the
Securities Act in reliance on Section 4(2) of the Securities Act or Regulation
D promulgated thereunder as a transaction by an issuer not involving a public
offering.
On December 9, 1998, the Registrant issued and sold 2,300,613 shares of its
Series D Preferred Stock and warrants exercisable for up to 952,381 shares of
Series E Preferred Stock at an exercise price of $2.10 per share to Oak
Investment Partners VIII, L.P. and Oak VIII Affiliates Fund, L.P. for an
aggregate purchase price equal to $3,750,952. This sale was deemed to be exempt
from registration under the Securities Act in reliance on Section 4(2) of the
Securities Act or Regulation D promulgated thereunder as a transaction by an
issuer not involving a public offering.
On March 19, 1999, the Registrant issued and sold 59,524 shares of its Series
E Preferred Stock to two individual accredited investors for an aggregate
purchase price equal to $125,000. This sale was deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of the
Securities Act or Regulation D promulgated thereunder as a transaction by an
issuer not involving a public offering.
Between July 12, 1999 and August 31, 1999, the Registrant issued and sold
2,070,000 shares of its Series F Preferred Stock to EnCompass Group, Inc., 21st
Century Internet Fund, L.P. and ten other accredited institutional investors
for an aggregate purchase price equal to $10,385,000. This sale was deemed to
be exempt from registration under the Securities Act in reliance on
Section 4(2) of the Securities Act or Regulation D promulgated thereunder as a
transaction by an issuer not involving a public offering.
On November 16, 1999, the Registrant issued and sold 952,381 shares of its
Series E Preferred Stock to Oak Investment Partners VIII, L.P. and Oak VIII
Affiliates Fund, L.P. upon the exercise of warrants.
(b) Issuances of Shares of Common Stock
On February 1, 1998, the Registrant issued 882,500 shares of its Common Stock
in consideration of Settlement and Release Agreements entered into on that day
between the Registrant and each of Rama Aysola, James DiSanto and Eddie
Babcock, each of whom, together with Timothy Bacci, was a founder and a former
employee of the Registrant. This sale was deemed to be exempt from registration
under the Securities Act in reliance on Section 4(2) of the Securities Act or
Regulation D promulgated thereunder as a transaction by an issuer not involving
a public offering.
II-2
<PAGE>
On July 27, 1998, the Registrant issued and sold 275,512 shares of its Common
Stock pursuant to the early exercise of outstanding warrants by CMG@Ventures I,
L.P. This sale was deemed to be exempt from registration under the Securities
Act in reliance on Section 4(2) of the Securities Act or Regulation D
promulgated thereunder as a transaction by an issuer not involving a public
offering.
Between July 8, 1997 and January 10, 2000, the Registrant issued 2,920,649
shares of its Common Stock to 60 individuals upon exercise of outstanding
employee incentive stock options. These sales were deemed to be exempt from
registration under the Securities Act in reliance on Rule 701 promulgated under
Section 3(b) of the Securities Act as a transaction to compensatory benefit
plans and contracts relating to compensation as provided under Rule 701.
(c) Issuances of Options to Employees, Directors and Consultants
Between November 25, 1996 and January 10, 2000, the Registrant issued options
exercisable for 4,278,975 shares (net of cancellations) of its Common Stock
pursuant to Registrant's 1996 Incentive Stock Option Plan to 152 individuals.
Of this amount, options for 3,000,649 shares of Common Stock had been exercised
as of January 10, 2000. These grants were deemed to be exempt from registration
under the Securities Act in reliance on Rule 701 promulgated under Section 3(b)
of the Securities Act as a transaction to compensatory benefit plans and
contracts relating to compensation as provided under such Rule 701. The
recipients of securities in each of the foregoing represented their intentions
to acquire the securities for investment only and not with a view to or for
sale in connection with any distribution thereof and appropriate legends were
affixed to the instruments representing such securities issued in such
transactions.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1** Certificate of Incorporation.
3.2** Form of Restated Certificate of Incorporation to be in effect upon the
closing of this offering.
3.3** Bylaws.
3.4** Form of Restated Bylaws to be in effect upon the closing of this
offering.
4.1** Specimen Common Stock certificate.
5.1** Opinion of Latham & Watkins.
10.1** 1995 Stock Option Plan.
10.2** 1996 Incentive Stock Option Plan.
10.3** 2000 Equity Participation Plan.
10.4** 2000 Employee Stock Purchase Plan
10.5** Amended and Restated Registration and Information Rights Agreement,
dated as of December 9, 1998, by and among Vicinity Corporation, Rama
Aysola, Eddie Babcock, Timothy Bacci, James DiSanto and the investors
named on Schedule I thereto.
10.6** Amended and Restated Shareholders Agreement, dated as of December 9,
1998, by and among Vicinity Corporation, Rama Aysola, Eddie Babcock,
Timothy Bacci, James DiSanto and the investors named in Schedule I
thereto.
10.7** Voting Agreement, dated as of December 12, 1996, by and among Vicinity
Corporation, Rama Aysola, Eddie Babcock, Timothy Bacci, James DiSanto
and the investors named in Schedule I thereto.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
10.8** Employment Agreement, dated June 17, 1998, by and between Vicinity
Corporation and Emerick M. Woods.
10.9** Loan Agreement, dated July 14, 1999, by and between Vicinity
Corporation and Emerick M. Woods.
10.10** Form of 1996 Incentive Stock Option Plan Stock Option Agreement.
10.11** Amendment to Incentive Stock Option Plan Agreement, dated August 19,
1998, by and between Vicinity Corporation and Scott Young.
10.12** Amendment to Incentive Stock Option Plan Agreement, dated August 19,
1998, by and between Vicinity Corporation and David Seltzer.
10.13** Amendment to Incentive Stock Option Plan Agreement, dated August 19,
1998, by and between Vicinity Corporation and Mary Gavin.
10.14+** Management Support Agreement, dated June 11, 1999, by and between
Vicinity Corporation and Aperto Multimedia GmbH.
10.15** Management Support Agreement dated July 27, 1999, by and between
Vicinity Corporation and Invision AG.
10.16** Master Lease and Financing Agreement, dated July 27, 1999, by and
between Vicinity Corporation and Compaq.
10.17** Capital Lease Agreement, dated April 24, 1996, by and between
Vicinity Corporation and Pacific Atlantic.
10.18+** Joint Marketing Agreement, dated June 23, 1999, by and between
Vicinity Corporation and Prio, Inc.
10.19+** Service and Distribution Agreement, dated June 14, 1999, by and
between Vicinity Corporation and Inktomi Corporation.
10.20** NaviSite Siteharbor Co-Location Services Agreement, dated June 30,
1998, by and between Vicinity Corporation and NaviSite Internet
Services Corporation.
10.21** Sublease Agreement, dated October 1, 1996, by and between Vicinity
Corporation and Attachmate Corporation.
10.22** First Sublease Agreement Amendment, dated August 6, 1997, by and
between Vicinity Corporation and Attachmate Corporation.
10.23** Second Sublease Agreement Amendment, dated September 22, 1998, by and
between Vicinity Corporation and Attachmate Corporation.
10.24** Sub-Sublease Agreement, dated August 1, 1999, by and between Vicinity
Corporation and E*Trade Group, Inc.
10.25** Lease Agreement, dated August 10, 1999, by and between Vicinity
Corporation and Gordon E. and Blanche M. Bagley.
10.26** Vicinity Corporation Elaine Hamilton Non-Statutory Stock Option
Agreement, dated October 13, 1999, by and between Vicinity
Corporation and Elaine Hamilton.
10.27** Form of Indemnification Agreement.
10.28+** Master Agreement dated January 11, 2000, between Vicinity Corporation
and AltaVista Company.
10.29 Form of Lockup Agreement to be entered into between Hikari Tsushin,
Inc. and the Underwriters with respect to any shares of common stock
purchased by Hikari Tsushin in the offering.
23.1** Consent of KPMG LLP.
23.2** Consent of Latham & Watkins.
24.1** Power of Attorney.
27.1** Financial Data Schedule.
27.2** Financial Data Schedule.
</TABLE>
- -------------------
+ Registrant has requested confidential treatment pursuant to Rule 406 for a
portion of the referenced exhibit and has separately filed such exhibit with
the Commission.
* To be supplied by amendment.
** Previously filed.
II-4
<PAGE>
(b) Financial Statement Schedules.
Independent Auditors' Report on Financial Statement Schedule
Schedule II--Valuation and Qualifying Accounts
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the Underwriter at
the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424 (b)(1) or
(4), or 497(h) under the Securities Act of 1933, shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and this offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE>
Signatures
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Palo Alto, State of
California, on this 8th day of February, 2000.
Vicinity Corporation
By: /s/ Emerick M. Woods
--------------------------------------
Name: Emerick M. Woods
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Emerick M. Woods Chief Executive Officer Febuary 8, 2000
______________________________________ and Director (Principal
Emerick M. Woods Executive Officer)
/s/ David Seltzer Chief Financial Officer Febuary 8, 2000
______________________________________ (Principal Financial and
David Seltzer Accounting Officer)
* Chairman of the Board of Febuary 8, 2000
______________________________________ Directors
Herbert M. Dwight, Jr.
* Director Febuary 8, 2000
______________________________________
Jonathan Callaghan
* Director Febuary 8, 2000
______________________________________
James J. Geddes, Jr.
* Director Febuary 8, 2000
______________________________________
Fred Gibbons
* Director Febuary 8, 2000
______________________________________
Peter Mills
* Director Febuary 8, 2000
______________________________________
Norman Nie
* Director Febuary 8, 2000
______________________________________
Michael Sears
* Director Febuary 8, 2000
______________________________________
Peter Ziebelman
/s/ Emerick M. Woods
*By: _________________________________
Emerick M. Woods
Attorney-in-Fact
</TABLE>
S-1
<PAGE>
Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1** Certificate of Incorporation.
3.2** Form of Restated Certificate of Incorporation to be in effect upon
the closing of this offering.
3.3** Bylaws.
3.4** Form of Restated Bylaws to be in effect upon the closing of this
offering.
4.1** Specimen Common Stock certificate.
5.1** Opinion of Latham & Watkins.
10.1** 1995 Stock Option Plan.
10.2** 1996 Incentive Stock Option Plan.
10.3** 2000 Equity Participation Plan.
10.4** 2000 Employee Stock Purchase Plan
10.5** Amended and Restated Registration and Information Rights Agreement,
dated as of December 9, 1998, by and among Vicinity Corporation, Rama
Aysola, Eddie Babcock, Timothy Bacci, James DiSanto and the investors
named on Schedule I thereto.
10.6** Amended and Restated Shareholders Agreement, dated as of December 9,
1998, by and among Vicinity Corporation, Rama Aysola, Eddie Babcock,
Timothy Bacci, James DiSanto and the investors named in Schedule I
thereto.
10.7** Voting Agreement, dated as of December 12, 1996, by and among
Vicinity Corporation, Rama Aysola, Eddie Babcock, Timothy Bacci,
James DiSanto and the investors named in Schedule I thereto.
10.8** Employment Agreement, dated June 17, 1998, by and between Vicinity
Corporation and Emerick M. Woods.
10.9** Loan Agreement, dated July 14, 1999, by and between Vicinity
Corporation and Emerick M. Woods.
10.10** Form of 1996 Incentive Stock Option Plan Stock Option Agreement.
10.11** Amendment to Incentive Stock Option Plan Agreement, dated August 19,
1998, by and between Vicinity Corporation and Scott Young.
10.12** Amendment to Incentive Stock Option Plan Agreement, dated August 19,
1998, by and between Vicinity Corporation and David Seltzer.
10.13** Amendment to Incentive Stock Option Plan Agreement, dated August 19,
1998, by and between Vicinity Corporation and Mary Gavin.
10.14+** Management Support Agreement, dated June 11, 1999, by and between
Vicinity Corporation and Aperto Multimedia GmbH.
10.15** Management Support Agreement dated July 27, 1999, by and between
Vicinity Corporation and Invision AG.
10.16** Master Lease and Financing Agreement, dated July 27, 1999, by and
between Vicinity Corporation and Compaq.
10.17** Capital Lease Agreement, dated April 24, 1996, by and between
Vicinity Corporation and Pacific Atlantic.
10.18+** Joint Marketing Agreement, dated June 23, 1999, by and between
Vicinity Corporation and Prio, Inc.
10.19+** Service and Distribution Agreement, dated June 14, 1999, by and
between Vicinity Corporation and Inktomi Corporation.
10.20** NaviSite Siteharbor Co-Location Services Agreement, dated June 30,
1998, by and between Vicinity Corporation and NaviSite Internet
Services Corporation.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
10.21** Sublease Agreement, dated October 1, 1996, by and between Vicinity
Corporation and Attachmate Corporation.
10.22** First Sublease Agreement Amendment, dated August 6, 1997, by and
between Vicinity Corporation and Attachmate Corporation.
10.23** Second Sublease Agreement Amendment, dated September 22, 1998, by and
between Vicinity Corporation and Attachmate Corporation.
10.24** Sub-Sublease Agreement, dated August 1, 1999, by and between Vicinity
Corporation and E*Trade Group, Inc.
10.25** Lease Agreement, dated August 10, 1999, by and between Vicinity
Corporation and Gordon E. and Blanche M. Bagley.
10.26** Vicinity Corporation Elaine Hamilton Non-Statutory Stock Option
Agreement, dated October 13, 1999, by and between Vicinity
Corporation and Elaine Hamilton.
10.27** Form of Indemnification Agreement.
10.28+** Master Agreement, dated January 11, 2000, between Vicinity
Corporation and AltaVista Company.
10.29 Form of Lockup Agreement to be entered into between Hikari Tsushin,
Inc. and the Underwriters with respect to any shares of common stock
purchased by Hikari Tsushin in the offering.
23.1** Consent of KPMG LLP.
23.2** Consent of Latham & Watkins.
24.1** Power of Attorney.
27.1** Financial Data Schedule.
27.2** Financial Data Schedule.
</TABLE>
- -------------------
+ Registrant has requested confidential treatment pursuant to Rule 406 for a
portion of the referenced exhibit and has separately filed such exhibit with
the Commission.
* To be supplied by amendment.
** Previously filed.
<PAGE>
Exhibit 10.29
-------------
January 28, 2000
J.P. Morgan Securities Inc.
Bear, Stearns & Co. Inc.
U.S. Bancorp Piper Jaffray Inc.
As Representatives of the Underwriters
named in Schedule I to the
Underwriting Agreement referred to below
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Re: Vicinity Corporation -- Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several
Underwriters, propose to enter into an Underwriting Agreement (the "Underwriting
Agreement") with Vicinity Corporation, a California corporation (the "Company"),
providing for the public offering (the "Public Offering") by the several
Underwriters named in Schedule I to the Underwriting Agreement (the
"Underwriters"), of Common Stock, $.001 par value, of the Company (the
"Securities"). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters' agreement to purchase and make the
Public Offering of the Securities, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of J.P. Morgan Securities Inc. on behalf of
the Underwriters, the undersigned will not, during the period ending 270 days
after the date of the prospectus relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, announce the intention to sell, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock,
$.001 per share par value, of the Company (the "Common Stock") or any securities
convertible into or exercisable or exchangeable for Common Stock (including
without limitation, Common Stock which may be deemed to be beneficially owned by
the undersigned in accordance with the rules and regulations of the Securities
and Exchange Commission and
<PAGE>
securities which may be issued upon exercise of a stock option or warrant) or
(2) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. In
addition, the undersigned agrees that, without the prior written consent of J.P.
Morgan Securities Inc. on behalf of the Underwriters, it will not, during the
period ending 270 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Letter Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Common Stock to be sold thereunder, the
undersigned shall be released from all obligations under this Letter Agreement.
The undersigned understands that the Underwriters are entering into the
Underwriting Agreement and proceeding with the Public Offering in reliance upon
this Letter Agreement.
This lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
Very truly yours,
Hikari Tsushin, Inc.
By:_____________________________________
Name:
Title:
2
<PAGE>
Accepted as of the date first set forth above:
J.P. Morgan Securities Inc.
Bear, Stearns & Co. Inc.
U.S. Bancorp Piper Jaffray Inc.
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I to the
Underwriting Agreement
By: J.P. MORGAN SECURITIES INC.
By: ___________________________________________________________
Name:
Title:
By: BEAR, STEARNS & CO. INC.
By: ___________________________________________________________
Name:
Title:
By: U.S. BANCORP PIPER JAFFRAY
INC.
By: ___________________________________________________________
Name:
Title:
3
