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EXHIBIT 1.1
VOTING ORDINARY SHARES
FORM OF UNDERWRITING AGREEMENT
__, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
U.S. BANCORP PIPER JAFFRAY INC.
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. XACCT Technologies (1997) Ltd., a Israeli corporation
("COMPANY"), proposes to issue and sell shares ("FIRM SECURITIES") of its
voting ordinary shares, nominal value NIS 0.04 per share, ("SECURITIES") and
also proposes to issue and sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than [750,000] additional shares
("OPTIONAL SECURITIES") of its Securities as set forth below. The Firm
Securities and the Optional Securities are herein collectively called the
"OFFERED SECURITIES." As part of the offering contemplated by this Agreement,
U.S. Bancorp Piper Jaffray Inc. (the "DESIGNATED UNDERWRITER") has agreed to
reserve out of the Firm Securities purchased by it under this Agreement, up to
[250,000] shares, for sale to the Company's directors, officers, employees and
other parties associated with the Company (collectively, "PARTICIPANTS"), as set
forth in the Prospectus (as defined herein) under the heading "Underwriters"
(the "DIRECTED SHARE PROGRAM"). The Firm Securities to be sold by the Designated
Underwriter pursuant to the Directed Share Program (the "DIRECTED SHARES") will
be sold by the Designated Underwriter pursuant to this Agreement at the public
offering price. Any Directed Shares not subscribed for by the end of the
business day on which this Agreement is executed will be offered to the public
by the Underwriters as set forth in the Prospectus. The Company hereby agrees
with the several Underwriters named in Schedule A hereto ("UNDERWRITERS") as
follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-33434) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and either (i) has been
declared effective under the Securities Act of 1933, as amended ("ACT") and
is not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("INITIAL REGISTRATION STATEMENT") has been declared effective, either (i)
an additional registration statement ("ADDITIONAL REGISTRATION STATEMENT")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("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
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(ii) 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 (i) 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
(ii) 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 Statement are herein 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;
(b) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (i) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all 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, (ii) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all
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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 (iii) on the date of this Agreement, the Initial
Registration Statement and, if the 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 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 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 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 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
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b) hereof;
(c) Assuming that the Underwriters are not otherwise subject to
Israeli taxation by the conduct of their business activities, the execution
and delivery of this Agreement, the sale and delivery to the Underwriters
of the Offered Securities as contemplated herein, and the sale and delivery
of the Offered Securities by the Underwriters as contemplated herein, are
not subject to any tax imposed by Israel or any political subdivision
thereof or any stamp or other issuance or transfer tax, duty, capital gain
tax or withholding tax imposed by any other taxing authority, except for
the Israeli stamp taxes applicable to the issuance of the Offered
Securities (which will be paid by the Company at the Closing Date (as
defined below) in accordance with Israeli law);
(d) The Company has been duly organized and is an existing company
under the laws of the State of Israel, with power and authority (corporate
and other) to own its properties and conduct its business as described in
the Prospectus; 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;
(e) The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed
in [Exhibit 21.1] to the Registration Statement;
(f) 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 power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; 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; 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
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nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects;
(g) As of the date stated therein, the Company's authorized equity
capitalization is as set forth in the column entitled "actual" under the
caption "Capitalization" in the Prospectus; the capital stock of the
Company conforms in all material respects to the description thereof
contained in the Prospectus. 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 delivered and paid for in
accordance with this Agreement on each Closing Date, such Offered
Securities will have been, validly issued, fully paid and nonassessable and
will conform to the description thereof contained in the Prospectus; none
of the outstanding shares of capital stock of the Company was issued in
violation of the preemptive rights, co-sale rights, registration rights,
right of first refusal or other similar rights of any securityholder of the
Company. The holders of outstanding shares of capital stock of the Company
are not entitled to preemptive rights, co-sale rights, registration rights,
right of first refusal or other similar rights with respect to the
Securities, and except as set forth in the Prospectus, which rights in each
case will terminate on the Closing Date, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares or
ownership interest in the Company are outstanding;
(h) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company;
(i) 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;
(j) There are no contracts, agreements or 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 or in any securities being registered
pursuant to any other registration statement filed by the Company under the
Act;
(k) The Offered Securities have been approved for listing on the
Nasdaq Stock Market's National Market subject to notice of issuance;
(l) 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 (i) such as have been obtained and made under the Act, (ii)
such as may be required under state securities laws, (iii) for a permit
that has been obtained from the Israel Securities Authority (the "ISA
Permit"), and (iv) consents that have been obtained from the Israeli
Investment Center (the "Investment Center Consent");
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(m) Except as disclosed in the Prospectus, under current laws and
regulations of Israel and any political subdivision thereof, all dividends
and other distributions declared and payable on the Offered Securities may
be paid by the Company to the holder thereof in United States dollars or
Israeli Shekel that may be converted into foreign currency and freely
transferred out of Israel. Unless a different rule is provided in a treaty
between Israel and the securityholders' country of residence, dividends,
other than bonus shares or stock dividends, not generated by an approved
enterprise are subject to income tax at a rate of 25%, which is withheld at
source. Under the U.S.-Israel tax treaty, these distributions to a treaty
U.S. resident are subject to income tax at a rate of 25%, or in some cases
12.5%, if the non-resident is a U.S. corporation and holds at least 10% of
the Company's voting power. Dividends distributed from income generated by
an approved enterprise are subject to a 15% tax, which is withheld at
source;
(n) The execution, delivery and performance of this Agreement, and the
issuance and sale 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 its or 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 of any such
subsidiary is subject, or the memorandum of association or articles of
association of the Company or charter or by-laws of any such subsidiary,
and the Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement. Neither the issue
and sale of the Offered Securities nor the consummation of any other
transaction contemplated herein nor the fulfillment of the terms hereof
will conflict with, result in a breach, violation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to, (i) the organizational documents of the Company
or any subsidiary, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
subsidiary is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any subsidiary of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any subsidiary or any of
its or their properties, except, in the case of clause (ii), for such
breaches, violations or impositions of liens, charges or encumbrances that
would not, individually or in the aggregate, (A) have a Material Adverse
Effect (as defined below), whether or not arising from transactions in the
ordinary course of business, or (B) impair the validity or enforceability
of this Agreement;
(o) This Agreement has been duly authorized, executed and delivered by
the Company;
(p) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other 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; 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;
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(q) The Company and its subsidiaries possess adequate licenses,
certificates, authorities or permits issued by appropriate governmental or
municipal agencies or bodies or other regulatory authorities necessary to
conduct the business now operated by it or 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 subsidiary, would individually or in the aggregate have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole ("MATERIAL ADVERSE EFFECT");
(r) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect. The Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or
its subsidiaries' principal suppliers, contractors or customers, that might
have a Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business;
(s) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any subsidiary or their respective businesses,
assets, employees, officers and directors are in full force and effect; the
Company and its subsidiaries are in compliance with the terms of such
policies and instruments in all material respects; and there are no claims
by the Company or any subsidiary under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor any subsidiary has
been refused any insurance coverage sought or applied for; and neither the
Company nor any subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect, whether or not arising from transactions in the ordinary
course of business;
(t) The Company and each of 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 it or
them, or presently employed by it or them, and have not received any notice
of infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to the
Company or any subsidiary, would, individually or in the aggregate, have a
Material Adverse Effect. Except as described in the Prospectus, (i) to the
Company's best knowledge, there are no rights of third parties to any such
intellectual property rights, (ii) to the Company's best knowledge, there
is no material infringement by third parties of any such intellectual
property rights, (iii) there is no pending or, to the Company's best
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any such intellectual property
rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim, (iv) there is no pending or, to the
Company's best knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any such intellectual property
rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim, (v) there is no pending or, to the
Company's best knowledge, threatened action, suit, proceeding or claim by
others that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of others,
and the Company is unaware of any other fact which would form a reasonable
basis for any such claim, (vi) to the Company's best knowledge, there is no
U.S. patent
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or published U.S. patent application which contains claims that dominate or
may dominate any intellectual property rights described in the Prospectus
as being owned by or licensed to the Company or that interferes with the
issued or pending claims of any such intellectual property rights, and
(vii) there is no prior art of which the Company is aware that may render
any U.S. patent application held by the Company unpatentable which has not
been disclosed to the U.S. Patent and Trademark Office;
(u) The Company does not (i) to the best of its knowledge, have any
material lending or other relationship with any bank or lending affiliate
of any of the Underwriters; or (ii) intend to use any proceeds from the
sale of the Offered Securities hereunder to repay any outstanding debt owed
to any affiliate of any of the Underwriters;
(v) Neither the Company nor any subsidiary nor any of its or their
properties or assets has any immunity from the jurisdiction of any court or
from any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution or otherwise) under the laws of
Israel or the United States;
(w) Except as described in the Prospectus, the Company and its
subsidiaries are in compliance with all material conditions and
requirements of the approval to establish an "Approved Enterprise" under
Israeli law and by Israeli laws and regulations relating to such approval
to establish an Approved Enterprise, except such non-compliance that would
not, individually or in the aggregate, have a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of
business. All information supplied by the Company or any subsidiary with
respect to such applications were true, correct and complete in all
material respects when supplied to the appropriate authorities;
(x) Except as described in the Prospectus, neither the Company nor any
subsidiary is in material violation of any conditions or requirements
stipulated by the instruments of approval granted to any of them by the
Office of Chief Scientist in the Ministry of Industry & Trade, with respect
to any research and development grants given to any of them by such office,
which violation, individually or in the aggregate, could have a Material
Adverse Effect, whether or not arising from transactions in the ordinary
course of business. All information supplied by the Company and any
subsidiary with respect to such applications was true, correct and complete
in all material respects when supplied to the appropriate authorities;
(y) Neither the Company nor any subsidiary is (i) 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"), (ii) own or operate any
real property contaminated with any substance that is subject to any
environmental laws, (iii) liable for any off-site disposal or contamination
pursuant to any environmental laws, or (iv) 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;
(z) There are no actions, suits or proceedings, pending or otherwise,
against or affecting the Company or any subsidiary, or any of its or their
properties that, if determined adversely to the Company or any subsidiary,
would, individually or in the aggregate, have a Material Adverse
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Effect, or would materially and adversely affect the ability of the Company
or any subsidiary to perform its or their 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;
(aa) The Company and its subsidiaries are not in violation of the
memorandum of association or articles of association of the Company or
charter or by-laws of any subsidiary or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or its
subsidiaries is a party or by which it or they may be bound, or to which
any of the property or assets of the Company or its subsidiaries is subject
or of any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
subsidiary or any of its properties, as applicable, except for such
violations or defaults that would not, individually or in the aggregate,
have a Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business;
(bb) The consolidated financial statements included in each
Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis and the schedules included in each Registration Statement
present fairly the information required to be stated therein; and the
assumptions used in preparing the pro forma financial statements included
in each Registration Statement and the Prospectus provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts; and Kost, Forer &
Gabbay, a member of Ernst and Young International, who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the Act and the
Rules and Regulations;
(cc) The Company and its subsidiaries have filed with appropriate
governmental authorities all tax returns required to be filed or have
requested extensions thereof (except in any case in which the failure so to
file would not have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business) and have paid all taxes
required to be paid by it and them and any other assessment, fine or
penalty levied against it and them, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not, individually or in
the aggregate, have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business;
(dd) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide the Company with reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
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(ee) 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;
(ff) 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 ("INVESTMENT
ACT");
(gg) Furthermore, the Company represents and warrants to the
Underwriters that (i) the Registration Statement, the Prospectus and any
preliminary prospectus comply, and any further amendments or supplements
thereto will comply, with any applicable laws or regulations of foreign
jurisdictions in which the Prospectus or any preliminary prospectus, as
amended or supplemented, if applicable, are distributed in connection with
the Directed Share Program, and that (ii) no authorization, approval,
consent, license, order, registration or qualification of or with any
government, governmental instrumentality or court, other than such as have
been obtained, is necessary under the securities law and regulations of
foreign jurisdictions in which the Directed Shares are offered outside the
United States;
(hh) The Company has not offered, or caused the Underwriters to offer,
any Offered Securities to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (i) a customer or supplier
of the Company to alter the customer's or supplier's level or type of
business with the Company or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its products;
(ii) Except as set forth in the Prospectus, there are no Year 2000
Compliance issues related to the Company, or any of its subsidiaries, that
(i) are of a character required to be described or referred to in the
Registration Statement or Prospectus by the Act which have not been
accurately described in the Registration Statement or Prospectus or (ii)
might reasonably be expected to result in any Material Adverse Effect or
that might materially affect its or their properties, assets or rights;
(jj) Neither the Company nor any of its subsidiaries nor, to the best
of the Company's knowledge, any employee or agent of the Company or any
subsidiary, has made any contribution or other payment to any official of,
or candidate for, any federal, state or foreign office in violation of any
law or of the character required to be disclosed in the Prospectus;
(kk) The Company's employment agreements in Israel do not
differentiate between compensation paid to employees for a 43 hour work
week or for maximum daily hours, and compensation for overtime work. The
Company does not have any material, actual or potential liability arising
out of claims by its employees resulting from (i) the fact that most
employees are in a position of "special trust," (ii) agreements the
employees have with the Company to be compensated on a fixed basis, (iii)
the payment by the Company of higher salaries, which takes into account
payments for additional hours, (iv) the distribution of bonuses and stock
options by the Company, which are, in part, compensation for additional
hours, (v) the fact that a non-material number of overtime hours has been
reported, and (vi) the fact that most employees sign a "waiver of claims"
letter upon termination of employment; and
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(ll) Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Offered Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby,
to each Underwriter.
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 agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $ per share, the respective Firm
Securities set forth opposite the names of the Underwriters in Schedule A
hereto.
(a) The Company 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 acceptable to Credit Suisse
First Boston Corporation ("CSFBC") drawn to the order of the Company at the
office of at 6:30 A.M., local time, on , 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 ("EXCHANGE ACT"), 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 for all 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 above office of at least 24 hours prior to
the First Closing Date.
(b) In addition, upon written notice from CSFBC given to the Company
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. The Company agrees to sell to the Underwriters the
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 for the account of each Underwriter
in the same proportion as the Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares 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.
(c) 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 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 Company 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 the
Company, at the above office of . The certificates for the Optional
Securities
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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 at a
reasonable time in advance of such Optional Closing Date.
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. The Company agrees with the several
Underwriters 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 consent; 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 best 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.
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(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 (four 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 requests. The Prospectus shall be so
furnished on or prior to 3:00 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 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.
(g) During the period of 10 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 Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as CSFBC
may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as CSFBC designates, and such jurisdictions in
which any offers relating to Directed Shares will be made, 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 and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
(i) The Company will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any interest
and penalties, on the creation, issue and sale of the Offered Securities
and on the execution and delivery of this Agreement. All payments to be
made by the Company hereunder shall be made without withholding or
deduction for or on account of any present or future taxes, duties or
governmental charges whatsoever unless the
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<PAGE>
Company is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Company shall pay such additional amounts as
may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made.
(j) For a period of 180 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
issuances of Securities pursuant to the conversion or exchange of
convertible or exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date hereof, grants of employee
stock options pursuant to the terms of a plan in effect on the date hereof,
or issuances of Securities pursuant to the exercise of such options.
(k) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required
by the National Association of Securities Dealers, Inc. (the "NASD") or the
NASD rules from sale, transfer, assignment, pledge or hypothecation for a
period of three months following the date of the effectiveness of the
Registration Statement. The Designated Underwriter will notify the Company
as to which Participants will need to be so restricted. The Company will
direct the transfer agent to place stop transfer restrictions upon such
securities for such period of time.
(l) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Shares Program
and stamp duties, similar taxes or duties or other taxes, if any, incurred
by the Underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants with the Underwriters that the Company
will comply with all applicable securities and other applicable laws, rules
and regulations in each foreign jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program.
(m) The Company shall use its best efforts to cause a registration
statement on Form 8-A ("FORM 8-A REGISTRATION STATEMENT") as required by
the Exchange Act to become effective simultaneously with the Registration
Statement.
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 herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its 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 Kost, Forer & Gabbay, a
member of
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<PAGE>
Ernst and Young International, that they are independent public accountants
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 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 financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of such letter, there
was any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in net assets, as compared with amounts
shown on the latest balance sheet included in the Prospectus; or
(C) 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 and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectus, in net sales or net operating income (loss) or in
the total or per share amounts of net income,
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 subject
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<PAGE>
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.
For purposes of this subsection 6(a), (i) if the Effective Time
of the Initial Registration Statement 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 Statement is
prior to the execution and delivery of this Agreement but the
Effective Time of the Additional Registration 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) 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 the Company or the Representatives, shall be contemplated by
the Commission.
(c) 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 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.
15
<PAGE>
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Wilson Sonsini Goodrich & Rosati, PC, U.S. counsel for the
Company, to the effect that:
(i) The Company is duly qualified to do business as a foreign
corporation in good standing in all U.S. jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification;
(ii) Each U.S. 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 power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each such 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; all of the issued and outstanding capital stock of each
such subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of
each such subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects;
(iii) There are no contracts, agreements or understandings known
to such counsel 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 the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Act;
(iv) 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 Act;
(v) 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 or sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and
such as may be required under state securities laws;
(vi) The execution, delivery and performance of this Agreement
and the issuance and sale 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 having jurisdiction
over the Company or any U.S. 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 memorandum of association or
articles of association of the Company, or the charter or bylaws of
any such subsidiary;
(vii) To the knowledge of such counsel, the Company is not in
violation of its memorandum of association or articles of association;
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<PAGE>
(viii) 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) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, 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; such counsel have no reason to believe that any part of a
Registration Statement or any amendment thereto, as of its effective
date or as of such Closing Date, 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 or any amendment or supplement
thereto, as of its issue 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; the descriptions in the Registration Statements and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in a Registration Statement or the Prospectus or to be
filed as exhibits to a Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other financial
data contained in the Registration Statements or the Prospectus; and
(ix) The 8-A Registration Statement conforms in all material
respects with the requirements of the Exchange Act and such 8-A
Registration Statement has become effective under the Exchange Act.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of S. Friedman & Co., Advocates & Notaries, Israeli counsel
for the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
company under the laws of the State of Israel, with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus; 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;
(ii) Each subsidiary of the Company (other than subsidiaries
incorporated or existing in the U.S.) has been duly incorporated and
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; 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; all of the
issued and
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outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects;
(iii) The Offered Securities delivered on such Closing Date and
all other outstanding shares of the capital 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; and the securityholders of the Company have no preemptive
rights, co-sale rights, registration rights, right of first refusal or
other similar rights with respect to the Offered Securities;
(iv) The Company has the requisite corporate power and authority
to own, lease and operate its properties and to conduct its business
as described in the Prospectus;
(v) The Company has the requisite corporate power and authority
to enter into this Agreement and to issue, sell and deliver to the
Underwriters the Offered Securities to be issued and sold by it
hereunder;
(vi) This Agreement has been duly authorized by all necessary
corporate action on the part of the Company and has been duly executed
and delivered by the Company and, assuming due authorization,
execution and delivery hereof, and assuming for the purposes of this
subsection (vi) that this Agreement is governed by Israeli law, is a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith
and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or equity) and except that rights to indemnification
and contribution hereunder may be limited by applicable securities
laws or public policy relating thereto;
(vii) The authorized, issued and outstanding share capital of the
Company is as set forth in the Prospectus under the caption
"Capitalization" as of the dates stated therein. The issued and
outstanding shares of share capital of the Company have been duly and
validly issued, are fully paid and nonassessable, and conform to the
description thereof in the Prospectus;
(viii) There are no contracts, agreements or understandings known
to such counsel 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 the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Act;
(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 or sale of the Offered Securities by the
Company, except (i) such as have been obtained and made under the
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Act, (ii) such as may be required under state securities laws, (iii)
the obligation to obtain the ISA Permit, and (iv) the obligation to
file certain information with the Israeli Investment Center following
the consummation of the transaction contemplated by this Agreement;
(x) Except as described in the Prospectus, there are no
contracts, agreements or understandings known to such counsel 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 the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(xi) The execution, delivery and performance of this Agreement
and the issuance and sale 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 having jurisdiction
over the Company or any of its properties, or any agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the properties of the Company is subject, or
the memorandum of incorporation or articles of association of the
Company and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement;
(xii) To the knowledge of such counsel, the Company is not in
violation of its (a) memorandum of association or articles of
association, or (b) in breach of any applicable Israeli statute, rule
or regulation known to such counsel or, to the best of such counsel's
knowledge, any order, writ or decree of any Israeli court or
governmental agency or body having jurisdiction over the Company, or
over any of its properties or operations except, in each of the
foregoing cases (a) and (b), such violations or breaches that would
not, individually or in the aggregate, have a Material Adverse Effect;
(xiii) Except as described in the Prospectus, under current laws
and regulations of Israel and any political subdivision thereof, all
dividends and other distributions declared and payable on the Offered
Securities may be paid by the Company to the holder thereof in United
States dollars or Israeli Shekel that may be converted into foreign
currency and freely transferred out of Israel. Unless a different rule
is provided in a treaty between Israel and the securityholders'
country of residence, dividends, other than bonus shares or stock
dividends, not generated by an approved enterprise are subject to
income tax at a rate of 25%, which is withheld at source. Under the
U.S.-Israel tax treaty, these distributions to a treaty U.S. resident
are subject to income tax at a rate of 25%, or in some cases 12.5%, if
the non-resident is a U.S. corporation and holds at least 10% of the
Company's voting power. Dividends distributed from income generated by
an approved enterprise are subject to a 15% tax, which is withheld at
source;
(xiv) Such counsel has participated in conferences with
directors, officers and other representatives of the Company,
representatives of the independent certified public accountants,
representatives of the Underwriters and representatives of counsel for
the Underwriters, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were
discussed, and, although they have not independently verified and are
not passing upon and assume no responsibility for the accuracy,
completeness
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or fairness of the statements contained in the Registration Statement
and the Prospectus (except to the extent specified in the foregoing
opinion), such counsel has no reason to believe that any part of a
Registration Statement or any amendment thereto, as of its effective
date or as of such Closing Date, 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 or any amendment or supplement
thereto, as of its issue 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; the descriptions in the Registration Statements and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in a Registration Statement or the Prospectus or to be
filed as exhibits to a Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other financial
data contained in the Registration Statements or the Prospectus;
(xv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending in any Israeli court or
governmental body to which the Company is a party or of which any
property or assets of the Company is the subject which, if determined
adversely to the Company, would, individually or in the aggregate,
have a Material Adverse Effect on the Company; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by Israeli governmental authorities or threatened by
others. Such counsel may state that the opinions set forth in this
subsection (xv) are based on such counsel's discussions with officers
of the Company and such counsel's review of the documents furnished to
it by the Company, and that such counsel has not made any search of
the public docket or the records of any court, governmental or
administrative agency or any other body;
(xvi) The statements in the Prospectus, insofar as they describe
Israeli laws, rules or regulations and insofar as they describe the
contents of certain provisions of documents governed under Israeli law
described therein, are accurate in all material respects, subject to
the limitations set forth therein, and do not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and
(xvii) It is not necessary, either to ensure the validity of the
Prospectus or to ensure compliance by the Underwriters with mandatory
provisions of Israeli law, to obtain any authorization, approval,
consent, order or permission of, or to effect any further filing,
recording or registration with, any public authority or government
agency in respect of the issue of the Offered Securities by the
Company or the offering and sale of the Offered Securities in Israel,
assuming that the Underwriters do not distribute the Prospectus or
otherwise offer or solicit the sale of the Offered Securities to more
than 35 offerees, in the aggregate, in Israel, in addition to certain
qualified investors under Israeli law, except such governmental
authorizations as have been obtained.
20
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(f) The Representatives shall have received from Meitar, Liquornik,
Geva & Co., Israeli 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, and
other related matters as the Representatives may require, 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.
(g) The Representatives shall have received from Morrison & Foerster
LLP, U.S. counsel for the Underwriters, such opinion or opinions, dated
such Closing Date with respect to the Registration Statements, the
Prospectus and other related matters as the Representatives may require,
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.
(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 no
proceedings for that purpose have been instituted or are contemplated 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 date 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 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, of Kost, Forer & Gabbay, a member of Ernst and Young
International, which meets the requirements of subsection (a) 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 lock-up letters from each of the executive officers,
directors and key employee of the Company and each beneficial owner of 1%
or more of shares of the outstanding capital stock of the Company.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
requests. 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 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
21
<PAGE>
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 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 (b) below.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act (the "Designated Entities"), from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) (i)
caused by any untrue statement or alleged untrue statement of a material
fact contained in any material prepared by or with the consent of the
Company for distribution to Participants in connection with the Directed
Share Program or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; (ii) caused by the failure of any
Participant to pay for and accept delivery of Directed Shares that the
Participant agreed to purchase; or (iii) related to, arising out of, or in
connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross
negligence of the Designated Entities.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any
who controls the Company within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities to which the Company 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 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 the following information in the Prospectus furnished on behalf of each
Underwriter under the caption "Underwriting": the concession and
reallowance figures appearing in the forth paragraph, the discretionary
sales figure appearing in the fifth paragraph and the discussion relating
22
<PAGE>
to stabilizing transactions, over-allotment transactions, syndicate
covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act appearing in the penultimate paragraph.
(c) 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 the indemnifying party
under subsection (a) or (b) 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) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (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.
Notwithstanding anything contained herein to the contrary, if indemnity may
be sought pursuant to the last paragraph in Section 7 (a) hereof in respect
of such action or proceeding, then in addition to such separate firm for
the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in
addition to any local counsel) for the Designated Underwriter for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of 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.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) 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) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company 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 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 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 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 or the
23
<PAGE>
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 (d) 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 (d). Notwithstanding the provisions of this subsection (d), 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 (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter 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.
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 obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company 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 and the
Company 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 or the Company, 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
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, 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
24
<PAGE>
pursuant to Section 8 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Company and the Underwriters pursuant to
Section 7 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(c), 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, at 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 to Morrison & Foerster LLP,
755 Page Mill Road, Palo Alto, CA 94304, Attention: Justin L. Bastian or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at [2900 Lakeside Drive, Santa Clara, CA, 95054, Attention: Eric Gries, with
copies to S. Friedman & Co., Advocates and Notaries, 3 Daniel Frisch Street, Tel
Aviv, Israel, Attention: Charles B. Gottlieb and Wilson Sonsini Goodrich &
Rosati, PC, 650 Page Mill Road, Palo Alto, CA 94304, Attention: John T.
Sheridan]; 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 respective 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 OF UNDERWRITERS. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives, jointly or by CSFBC will be binding
upon all the Underwriters.
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. The Company irrevocably and unconditionally waives any
objection to the laying of venue of any suit, or proceeding in such courts and
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such suit or proceeding brought in any such court has been
brought in an inconvenient forum. The Company irrevocably appoints [INSERT NAME
AND ADDRESS OF AUTHORIZED AGENT], 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
25
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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.
The obligation of the Company in respect of any sum due to any Underwriter
shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by
such Underwriter of any sum adjudged to be so due in such other currency, on
which (and only to the extent that) such Underwriter may in accordance with
normal banking procedures purchase United States dollars with such other
currency; if the United States dollars so purchased are less than the sum
originally due to such Underwriter hereunder, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss. If the United States dollars so purchased are greater than
the sum originally due to such Underwriter hereunder, such Underwriter agrees to
pay to the Company an amount equal to the excess of the dollars so purchased
over the sum originally due to such Underwriter hereunder.
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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 between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
By:
----------------------------
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
U.S. BANCORP PIPER JAFFRAY INC
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-----------------------------------
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SCHEDULE A
UNDERWRITER
NUMBER OF
FIRM SECURITIES
Credit Suisse First Boston Corporation .............
Chase Securities Inc................................
U.S. Bancorp Piper Jaffray Inc......................
Total
28
