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Exhibit 1.1
MOLDFLOW CORPORATION
2,685,000 Shares*
Common Stock
($.01 par value per share)
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Underwriting Agreement
December ___, 2000
Adams, Harkness & Hill, Inc.
Robert W. Baird & Co. Incorporated
A.G. Edwards & Sons, Inc.
As representatives of the several
Underwriters named in Schedule I hereto,
c/o Adams, Harkness & Hill, Inc.
60 State Street
Boston, Massachusetts 02109
Dear Sirs:
Moldflow Corporation, a Delaware corporation (the "COMPANY"), proposes,
subject to the terms and conditions stated herein, to issue and sell to you and
the several Underwriters named in Schedule I hereto (collectively, the
"UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), an aggregate of 575,000 shares (the "COMPANY FIRM SHARES")
and, at the election of the Underwriters, up to 170,000 additional shares (the
"COMPANY OPTIONAL SHARES") of common stock of the Company, $.01 par value per
share ("COMMON STOCK"), and the selling stockholders named in Schedule II hereto
(collectively, the "SELLING STOCKHOLDERS"), propose, subject to the terms and
conditions stated herein, to sell to the Underwriters an aggregate of 1,760,000
shares (the "SELLING STOCKHOLDER FIRM SHARES," and together with the Company
Firm Shares, the "FIRM SHARES") and, at the election of the Underwriters, up to
an aggregate of 180,000 additional shares (the "SELLING STOCKHOLDER OPTIONAL
SHARES," and together with the Company Optional Shares, the "OPTIONAL SHARES")
of Common Stock. The Firm Shares and the Optional Shares, which the Underwriters
elect to purchase pursuant to Section 3 hereof, are herein collectively called
the "SHARES".
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* Includes 350,000 shares subject to an option to purchase additional
shares to cover over-allotments.
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1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-49824)
(the "INITIAL REGISTRATION STATEMENT") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"COMMISSION"); the Initial Registration Statement (including any
pre-effective amendments thereto) and any post-effective amendments
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"RULE 462(B) REGISTRATION STATEMENT"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "ACT"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement and incorporated by
reference in the Rule 462(b) Registration Statement, if any, or filed
with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"PRELIMINARY PROSPECTUS"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and including the information contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 6(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective or the
Rule 462(b) Registration Statement, if any, at the time it became
effective, each as amended at the time such part of such registration
statement became effective, are hereinafter collectively called the
"REGISTRATION STATEMENT"; and such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the
"PROSPECTUS");
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein.
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(c) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as
of the applicable dates of the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus
taken in light of the circumstances under which they were made) not
misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein;
(d) There are no contracts or other documents required to be
described in the Registration Statement or to be filed as exhibits to
the Registration Statement by the Act or by the rules and regulations
thereunder which have not been described or filed as required; the
contracts so described in the Prospectus to which the Company or any of
its subsidiaries is a party have been duly authorized, executed and
delivered by the Company and its subsidiaries, as are party thereto,
constitute valid and binding agreements of the Company and its
subsidiaries, as are party thereto, and are enforceable in accordance
with their respective terms against the Company and its subsidiaries,
as are party thereto, except as such enforceability may be limited by
(i) applicable bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or similar laws in effect which affect the
enforcement of creditors' rights generally, (ii) general principles of
equity, whether considered in a proceeding at law or in equity and
(iii) state or federal securities laws or policies relating to the
nonenforceability of the indemnification provisions contained therein,
and, to the Company's knowledge, such contracts are enforceable in
accordance with their respective terms by the Company and its
subsidiaries, as are party thereto, against the other parties thereto,
except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or similar laws in effect which affect the enforcement of
creditors' rights generally, (ii) general principles of equity, whether
considered in a proceeding at law or in equity and (iii) state or
federal securities laws or policies relating to the nonenforceability
of the indemnification provisions contained therein, and such contracts
are in full force and effect on the date hereof; and neither the
Company nor any of its subsidiaries, nor, to the best of the Company's
knowledge, any other party is in breach of or default under any of such
contracts, except as set forth in the Prospectus or for such breaches
or defaults that will not result in a material adverse change in the
business, assets, management, financial position or results of
operations of the Company and its subsidiaries taken as a whole
(hereinafter, a "MATERIAL ADVERSE CHANGE");
(e) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or
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interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, except as set
forth in the Prospectus or as would not have a Material Adverse Change;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock (other than issuances of Common Stock
pursuant to Company stock option and stock purchase plans described in
the Registration Statement and Prospectus) or long-term debt of the
Company or any of its subsidiaries or any Material Adverse Change,
otherwise than as set forth in the Prospectus;
(f) The Company and its subsidiaries have good title to all
properties and assets described in the Prospectus as owned by each of
them, in each case free and clear of all liens, charges, encumbrances
or restrictions, except such as are described in the Prospectus or are
not material to the business of the Company; any real property and
buildings held under lease by the Company or any of its subsidiaries
are held under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company
and its subsidiaries; the Company and its subsidiaries own or lease all
such properties as are necessary to their operations as now conducted
or as proposed to be conducted, except where the failure to so own or
lease would not result in a Material Adverse Change;
(g) Each of the Company and its subsidiaries has been duly
incorporated and exists as a corporation in good standing under the
laws of its respective jurisdiction of organization, each with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and each has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualification, except where the failure to be so qualified
in any such jurisdiction would not result in a Material Adverse Change;
(h) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid
and non-assessable and conform in all material respects to the
description of the Common Stock contained in the Prospectus; all of the
issued shares of capital stock of each subsidiary of the Company (i)
have been duly authorized and validly issued, are fully paid and
non-assessable and (ii) except as disclosed in the Prospectus and for
pledges pursuant to the Loan Agreement, as amended, between the Company
and Silicon Valley Bank and for any liens, encumbrances or claims on
the Company's assets created in the ordinary course of business, are
owned of record by the Company or a wholly-owned subsidiary of the
Company, free and clear of all liens, encumbrances or claims; except as
disclosed in the Prospectus, neither the Company nor any subsidiary has
outstanding any options to purchase, or any preemptive rights or other
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rights to subscribe for or to purchase any securities or obligations
convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights, convertible
securities or obligations;
(i) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly authorized and, when
issued and delivered against payment therefor as provided herein, will
be validly issued and fully paid and non- assessable and will conform
in all material respects to the description of the Common Stock
contained in the Prospectus; no preemptive rights or other rights to
subscribe for or purchase exist with respect to the issuance and sale
of the Shares by the Company pursuant to this Agreement; no stockholder
of the Company has any right, which has not been satisfied or waived,
to require the Company to register the sale of any shares of capital
stock owned by such stockholder under the Act in the public offering
contemplated by this Agreement (except with respect to the Shares to be
sold by the Selling Stockholders pursuant to this Agreement); no
stockholder of the Company has any right to require the Company to
register the sale of any shares of capital stock owned by such
stockholder under the Act in the 120-day period after the date of the
Prospectus; and no further approval or authority of the stockholders or
the Board of Directors of the Company will be required for the issuance
and sale of the Shares to be sold by the Company as contemplated
herein;
(j) The Company has full corporate power and authority to
enter into this Agreement; this Agreement has been duly authorized,
executed and delivered by the Company, constitutes a valid and binding
obligation of the Company and is enforceable against the Company in
accordance with its terms;
(k) The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions herein contemplated will not
conflict with, or result in a breach or violation of, any of the terms
or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or By-laws of the
Company or similar documents of any of its subsidiaries or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets; and no consent, approval,
authorization, order, filing, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Act of the Shares and such consents, approvals,
authorizations, filings, registrations or qualifications as may be
required under state securities or Blue Sky laws
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or the by-laws and rules of the National Association of Securities
Dealers, Inc. ("NASD") in connection with the purchase and distribution
of the Shares by the Underwriters;
(l) Except as disclosed in the Prospectus, there are no legal
or governmental actions, suits or proceedings pending or, to the best
of the Company's knowledge, threatened to which the Company or any of
its subsidiaries is or may be a party or of which property owned or
leased by the Company or any of its subsidiaries is or may be the
subject, or related to environmental or discrimination matters, which
actions, suits or proceedings, would adversely affect the transactions
contemplated by this Agreement or would, if adversely determined,
result in a Material Adverse Change; no labor disturbance by the
employees of the Company or any of its subsidiaries exists or, to the
Company's knowledge, is imminent which would result in a Material
Adverse Change; and neither the Company nor any of its subsidiaries is
a party or subject to the provisions of any injunction, judgment,
decree or order of any court, regulatory body, administrative agency or
other governmental body which might be expected to result in a Material
Adverse Change;
(m) The Company and its subsidiaries possess all licenses,
certificates, authorizations or permits that are necessary to enable
them to own, lease and operate their respective properties and to carry
on their respective businesses as presently conducted and which the
failure to possess would result in a Material Adverse Change, and
neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the
aggregate, would be expected to result in a Material Adverse Change;
(n) The Company and its subsidiaries are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
including without limitation those relating to occupational safety and
health, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants, including without limitation those relating
to the storage, handling or transportation of hazardous or toxic
materials (collectively, "ENVIRONMENTAL LAWS"), except where such
noncompliance with Environmental Laws would not, singly or in the
aggregate, be expected to result in a Material Adverse Change;
(o) PricewaterhouseCoopers LLP, who have audited certain
financial statements of the Company, are independent public accountants
within the meaning of the Act and the rules and regulations of the
Commission thereunder;
(p) The consolidated financial statements and schedules of
each of the Company and Advanced CAE Technology, Inc. ("C-MOLD"), and
the related notes thereto, included in the Registration Statement and
the Prospectus present fairly in all material respects the financial
position of the Company and C-Mold, as the case may be, as of the
respective dates of such financial statements and schedules, and the
results of operations
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and cash flows of the Company and C-Mold, as the case may be, for the
respective periods covered thereby; such statements, schedules and
related notes have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis as certified by the
independent public accountants named in paragraph (o) above; no other
financial statements or schedules are required to be included in the
Registration Statement; and the selected financial data set forth in
the Prospectus under the captions "Summary Financial Data,"
"Capitalization," "Selected Financial Data," "Management's Discussion
and Analysis of Financial Condition and Results of Operations--Results
of Operations" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Selected Quarterly Results of
Operations" present fairly in all material respects the information set
forth therein on the basis stated in the Registration Statement;
(q) Except as disclosed in the Registration Statement and
Prospectus, the Company and its subsidiaries own or possess all
trademarks, service marks, trade names, patent rights, copyrights,
licenses, trade secrets and proprietary rights necessary to conduct
their business as now conducted; the Company has not received notice of
any infringement by the Company or its subsidiaries of trademark,
service mark, trade name, patent, copyright, license, trade secret,
proprietary or other similar rights of others; and there is no claim of
infringement being made against the Company regarding trademark,
service mark, trade name, patent, copyright, license, trade secret,
proprietary or other similar rights which, if adversely decided, would
reasonably be expected to result in a Material Adverse Change; except
as disclosed in the Registration Statement and Prospectus, none of the
technology employed by the Company or any of its subsidiaries has been
obtained or is being used by the Company or any of its subsidiaries in
violation of any contractual obligation binding on the Company or any
of its subsidiaries or, to the Company's knowledge, any of their
respective officers, directors, employees or consultants or otherwise
in violation of the rights of any person, except for such violations
that would not reasonably be expected to result in a Material Adverse
Change; none of the Company or any of its subsidiaries and, to the
Company's knowledge, none of its employees has received any written or
oral communications alleging that the Company or any of its
subsidiaries has violated or, by conducting its business as proposed,
would violate any of the intellectual property or proprietary rights of
any other person or entity; neither the operation of the business of
the Company and its subsidiaries by the employees of the Company or any
of its subsidiaries, nor the conduct of the business of the Company and
its subsidiaries as proposed, will, to the Company's knowledge, result
in a breach or violation of the terms, conditions or provisions of, or
constitute a default under, any material contract, covenant or
instrument under which any of such employees is now obligated; and the
Company and its subsidiaries have taken reasonable measures to prevent
the unauthorized dissemination or publication of its confidential
information or the confidential information of third parties in its
possession;
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(r) The Company and each of its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns
and have paid all taxes shown as due thereon; and, except as disclosed
in the Registration Statement and Prospectus, the Company has not
received any notice of any tax deficiency which has been or is
reasonably likely to be asserted against the Company or any of its
subsidiaries which would result in a Material Adverse Change;
(s) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT");
(t) Each of the Company and its subsidiaries maintains
insurance of the types and in the amounts which it reasonably deems
adequate for its business, including, but not limited to, insurance
covering real and personal property owned or leased by the Company and
its subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against by companies engaged in
businesses substantially similar to that of the Company, all of which
insurance is in full force and effect;
(u) Since incorporation, neither the Company nor any of its
subsidiaries has at any time (i) made any unlawful contribution to any
candidate for foreign office, or failed to disclose fully any
contribution in violation of law, or (ii) made any payment to any
foreign, federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof;
(v) The Company has not taken and will not take, directly or
indirectly through any of its directors, officers or controlling
persons, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(w) The Company has registered the Common Stock pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and has filed an application to list the Shares to be
issued and sold by the Company for quotation on the National
Association of Securities Dealers Automated Quotation ("NASDAQ")
National Market System and has received notification that the listing
has been approved, subject to notice of issuance of such Shares.
(x) Moldflow International Pty. Ltd., Moldflow Pty. Ltd.,
Moldflow Italia s.r.l., Moldflow (Europe) Ltd., Moldflow Vertriebs
GmbH, Moldflow France S.A.R.L. and Moldflow Japan K.K. constitute each
of the subsidiaries of the Company that accounted for at least six
percent (6%) of the consolidated total revenue of the Company
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and its subsidiaries for the fiscal year ended June 30, 2000 and the
fiscal quarter ended September 30, 2000 (each a "MATERIAL SUBSIDIARY").
In the aggregate, the Material Subsidiaries and the Company accounted
for at least 87% of the consolidated total revenue of, and at least 88%
of the consolidated total assets of, the Company and its subsidiaries
as at and for the fiscal year ended June 30, 2000 and the fiscal
quarter ended September 30, 2000; and
(y) The Company has timely filed all required documents with
the Commission since March 31, 2000 (the "COMPANY SEC DOCUMENTS"); as
of their respective filing dates (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such
filing), and during any period of effectiveness, the Company SEC
Documents complied in all material respects with the requirements of
the Act and the rules and regulations thereunder or the Exchange Act
and the rules and regulations thereunder, as the case may be, each as
in effect on the date so filed, and at the time filed with the
Commission none of the Company SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; the consolidated financial statements and schedules of the
Company, and the related notes thereto, included in the Company SEC
Documents comply as of their respective dates as to form in all
material respects with the then applicable accounting requirements and
the published rules and regulations of the Commission with respect
thereto, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods
involved and present fairly in all material respects the financial
position of the Company as of dates of such financial statements and
schedules and the results of operations and cash flows of the Company
for the respective periods covered thereby.
2. REPRESENTATIONS AND AGREEMENTS OF THE SELLING STOCKHOLDERS.
Each of the Selling Stockholders, severally and not jointly, represents and
warrants to, and agrees with, each of the Underwriters that:
(a) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of
this Agreement and the Power-of- Attorney and Custody Agreement (the
"CUSTODY AGREEMENT") hereinafter referred to, and for the sale and
delivery of the Shares to be sold by such Selling Stockholder
hereunder, have been obtained; in the case of a Selling Stockholder
which is not a natural person, such Selling Stockholder is duly
incorporated or formed, as the case may be, validly existing and in
good standing under the laws of the jurisdiction of its organization,
and such Selling Stockholder has full right, power and authority to
enter into and perform this Agreement and the Custody Agreement and to
sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder;
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(b) This Agreement and the Custody Agreement have each been
duly authorized, executed and delivered by such Selling Stockholder and
each such document constitutes a valid and binding obligation of such
Selling Stockholder, enforceable against such Selling Stockholder in
accordance with its terms;
(c) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body
with respect to such Selling Stockholder is required in connection with
the sale of the Shares by such Selling Stockholder or the consummation
by such Selling Stockholder of the transactions on his, her or its part
contemplated by this Agreement and the Custody Agreement, except such
as have been obtained under the Act or the rules and regulations
thereunder and such as may be required under state securities or Blue
Sky laws or the by-laws and rules of the NASD in connection with the
purchase and distribution by the Underwriters of the Shares;
(d) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the performance by such Selling Stockholder
of this Agreement and the Custody Agreement and the consummation of the
transactions contemplated hereby and thereby will not result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, or give any party a right to terminate any of its
obligations under, or result in the acceleration of any obligation
under, any material indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or other
evidence of indebtedness, lease, contract, agreement or instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder or any of his, her or its material properties is bound or
affected, or violate or conflict with the organizational documents, if
any, of such Selling Stockholder or any judgment, ruling, decree,
order, statute, rule or regulation of any court or other governmental
agency or body applicable to such Selling Stockholder;
(e) Such Selling Stockholder has, and at the First Time of
Delivery (as defined in Section 5 hereof) will have, good and valid
title to the Shares to be sold by such Selling Stockholder hereunder,
free and clear of all liens, encumbrances or claims except those
created by this Agreement and the Custody Agreement; and, upon delivery
of such Shares and payment therefor pursuant hereto, good and valid
title to such Shares, free and clear of all liens, encumbrances or
claims, will pass to each of the several Underwriters who have
purchased such Shares for value and without notice of any such lien,
encumbrance or claim or any other adverse claim within the meaning of
the Uniform Commercial Code;
(f) Such Selling Stockholder has not taken and will not at any
time take, directly or indirectly, any action designed, or which might
reasonably be expected, to cause or result in, or which will
constitute, stabilization of the price of shares of Common Stock to
facilitate the sale or resale of any of the Shares; and
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(g) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in
conformity with written information about such Selling Stockholder
furnished to the Company by such Selling Stockholder expressly for use
therein, such statements contained in the Preliminary Prospectus and
the Registration Statement in reliance thereon did, and such statements
contained in the Prospectus and any further amendments or supplements
to the Registration Statement and the Prospectus will, when they become
effective or are filed with the Commission, as the case may be, not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 with respect to the transactions herein contemplated, each Selling
Stockholder agrees to deliver to you prior to or at the First Time of Delivery a
properly completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
Each of the Selling Stockholders represents and warrants that a
certificate in negotiable form representing the Shares to be sold by such
Selling Stockholder has been placed in custody under the Custody Agreement, in
the form heretofore furnished to you, duly executed and delivered by such
Selling Stockholder to the Custodian (as defined in the Custody Agreement), and
that such Selling Stockholder has duly executed and delivered a
power-of-attorney, in the form heretofore furnished to you and included in the
Custody Agreement (the "POWER-OF- ATTORNEY"), appointing Marc J. L. Dulude and
Suzanne E. Rogers, and each of them, as such Selling Stockholder's
attorney-in-fact (the "ATTORNEY-IN-FACT") with authority to execute and deliver
this Agreement on behalf of such Selling Stockholder, to determine (subject to
the provisions of the Custody Agreement) the purchase price to be paid by the
Underwriters to such Selling Stockholder as provided in Section 3 hereof, to
authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the Custody
Agreement.
Each of the Selling Stockholders specifically agrees that the Shares
represented by the certificates held in custody for such Selling Stockholder
under the Custody Agreement are subject to the interests of the Underwriters
hereunder, and that the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the Attorneys-
in-Fact by the Power-of-Attorney, are to that extent irrevocable. Each of the
Selling Stockholders specifically agrees that the obligations of such Selling
Stockholder hereunder shall not be terminated by operation of law, whether by
the death or incapacity of such Selling Stockholder or, in the case of an estate
or trust, by the death or incapacity of any executor or trustee or the
termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by the
occurrence of any other event. If
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such Selling Stockholder or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be dissolved, or if such
corporation or partnership should be dissolved, or if any other such event
should occur, before the delivery of the Shares hereunder, certificates
representing the Shares to be sold by such Selling Stockholder shall be
delivered by or on behalf of such Selling Stockholder in accordance with the
terms and conditions of this Agreement and of the Custody Agreement, and actions
taken by the Attorneys-in-Fact pursuant to the Powers-of-Attorney shall be as
valid as if such death, incapacity, termination, dissolution or other event had
not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact,
or any of them, shall have received notice of such death, incapacity,
termination, dissolution or other event.
2A. REPRESENTATION AND WARRANTY OF THE MAJOR SELLING STOCKHOLDERS. For
purposes of this Agreement, each of Ampersand Specialty Materials and Chemicals
II Limited Partnership, Ampersand Specialty Materials and Chemicals III Limited
Partnership and Ampersand Specialty Materials and Chemicals III Companion Fund
Limited Partnership are collectively referred to as the "MAJOR SELLING
STOCKHOLDERS." Each of the Major Selling Stockholders represents and warrants
to, and agrees with, each of the Underwriters that such Major Selling
Stockholder has reviewed the Registration Statement and the Prospectus and any
amendment or supplement thereto and, although such Major Selling Stockholder has
not independently investigated or verified the accuracy or completeness of the
information contained therein, nothing has come to the attention of such Major
Selling Stockholder that would lead such Major Selling Stockholder to believe
that the Registration Statement and any amendment thereto, as of the applicable
effective dates, 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; and nothing has come to the attention of such
Major Selling Stockholder that would lead such Major Selling Stockholder to
believe that the Prospectus and any amendment or supplement thereto, as of the
applicable dates thereof, contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or that
the Prospectus and any amendment or supplement thereto, as of each Time of
Delivery, contained any untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through you expressly for use therein.
3. SHARES SUBJECT TO SALE. (a) On the basis of the representations,
warranties and agreements of the Company and the Selling Stockholders contained
herein, and subject to the terms and conditions of this Agreement, (i) the
Company agrees to issue and sell the Company Firm Shares to the several
Underwriters, (ii) each of the Selling Stockholders agrees, severally and not
jointly, to sell his, her or its respective Selling Stockholder Firm Shares to
the several Underwriters and (iii) each of the Underwriters agrees, severally
and not jointly, to purchase from the Company and the Selling Stockholders, at a
purchase price per share of [94.25% of the public
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offering price], the respective number of Firm Shares (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying the aggregate
number of Firm Shares by a fraction, the numerator of which is the aggregate
number of Firm Shares to be purchased by such Underwriter as set forth opposite
the name of such Underwriter in Schedule I hereto and the denominator of which
is the aggregate number of Firm Shares to be purchased by all the Underwriters
and (b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, (i) the Company agrees
to issue and sell the Company Optional Shares to the several Underwriters, (ii)
each of the Selling Stockholders agrees, severally and not jointly, to sell his,
her or its respective Selling Stockholder Optional Shares to the several
Underwriters and (iii) each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholders, at the
purchase price per share set forth in clause (a) of this Section 3, that portion
of the number of Optional Shares as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares which all of the Underwriters are entitled to purchase
hereunder.
The Company and the Selling Stockholders, as and to the extent
indicated in Schedule II hereto, each hereby grants, severally and not jointly,
to the Underwriters the right to purchase at their election up to 170,000
Company Optional Shares and 180,000 Selling Stockholder Optional Shares,
respectively, at the purchase price per share set forth in the paragraph above,
for the sole purpose of covering overallotments in the sale of the Firm Shares.
Any such election to purchase Optional Shares shall be made in proportion to the
maximum number of Optional Shares to be sold by the Company and each of the
Selling Stockholders. Any such election to purchase Optional Shares may be
exercised by written notice from you to the Company, given within a period of 30
calendar days after the date of this Agreement and setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by you but in no event earlier than
the First Time of Delivery or, unless you and the Company otherwise agree in
writing, earlier than two or later than three business days after the date of
such notice.
4. OFFERING. Upon the authorization by you of the release of the
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus.
5. CLOSING. Certificates in definitive form for the Shares to be
purchased by each Underwriter hereunder, and in such denominations and
registered in such names as Adams, Harkness & Hill, Inc. may request upon at
least forty-eight hours' prior notice to the Company and the Attorneys-in-Fact,
shall be delivered by or on behalf of the Company and each of the Selling
Stockholders to you for the account of each such Underwriter, against payment by
each such Underwriter or on its behalf of the purchase price therefor by wire
transfer of same day
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<PAGE>
funds, all at the office of Adams, Harkness & Hill, Inc., 60 State Street,
Boston, Massachusetts 02109. The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 9:30 a.m., Boston time, on December
__, 2000 or such other time and date as you and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., Boston time, on
the date specified by you in the written notice given by you of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as you and the Company may agree upon in writing. Such time and date
for delivery of the Firm Shares is herein called the "FIRST TIME OF DELIVERY,"
such time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "SECOND TIME OF DELIVERY," and each such time and
date for delivery is herein called a "TIME OF DELIVERY." Such certificates will
be made available for checking and packaging at least twenty four hours prior to
each Time of Delivery at such location as you may specify.
6. COVENANTS OF THE COMPANY. The Company agrees with each of the
Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus of which you shall not have been
previously advised and furnished with a copy or to which you shall have
reasonably objected in writing promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of
the time when the Registration Statement, or any amendment thereto, has
been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish you copies
thereof; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
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therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
in such quantities as you may from time to time reasonably request,
and, if the delivery of a prospectus is required by law at any time
prior to the expiration of nine months after the time of issuance of
the Prospectus in connection with the offering or sale of the Shares
and if at such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
in order to comply with the Act and the rules and regulations
thereunder, to notify you and upon your request to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required by law to deliver a prospectus in connection
with sales of any of the Shares at any time nine months or more after
the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than the forty-fifth (45th)
day following the end of the full fiscal quarter first occurring after
the first anniversary of the effective date of the Registration
Statement (as defined in Rule 158(c)), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and
continuing to and including the date 120 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of any securities of the Company which are substantially similar to the
Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Common Stock or any such substantially similar securities
(other than (i) the sale of the Shares to be sold by the Company
hereunder, (ii) the Company's issuance of shares upon exercise of
options outstanding as of the date hereof and the award of new options
under the Company's 2000 Stock Option and Incentive Plan and Employee
Stock Purchase Plan, and (iii) the Company's issuance of shares of
Common Stock in connection with the acquisition by the Company of
another company or entity, provided that the terms of such issuance
contractually prohibit the resale or other disposition of such shares
of Common Stock
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<PAGE>
through and including the date 120 days after the date of the
Prospectus), without your prior written consent.
(f) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders of
the Company generally, and deliver to you as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission, the Nasdaq National Market or any
national securities exchange on which any class of securities of the
Company is listed (such financial statements to be on a combined or
consolidated basis to the extent the accounts of the Company and its
subsidiaries are combined or consolidated in reports furnished to its
stockholders generally or to the Commission);
(g) To use the net proceeds acquired by it from the sale of
the Shares in the manner specified in the Prospectus under the caption
"Use of Proceeds" and in a manner such that the Company will not become
an "investment company" as that term is defined in the Investment
Company Act; and
(h) Not to accelerate the vesting of any option issued under
any stock option or other equity incentive plan such that any such
option may be exercised within 30 days from the date of the Prospectus
(other than in connection with a sale of the Company).
7. COVENANTS OF THE SELLING STOCKHOLDERS. Each Selling Stockholder
agrees to pay or cause to be paid all taxes, if any, on the transfer and sale of
the Shares to be sold by such Selling Stockholder hereunder and the fees and
expenses, if any, of counsel and accountants retained by such Selling
Stockholder. The Company agrees with the Selling Stockholders to pay all costs
and expenses incident to the performance of the obligations of the Selling
Stockholders under this Agreement (except as set forth above), including, but
not limited to, all expenses incident to the delivery of the certificates for
the Shares to be sold by such Selling Stockholder, the costs and expenses
incident to the preparation, printing and filing of the Registration Statement
(including all exhibits thereto), all Preliminary Prospectuses and the
Prospectus and any amendments or supplements thereto, the expenses of qualifying
the Shares to be sold by the Selling Stockholders under the state securities or
Blue Sky laws, all filing fees and the reasonable fees and expenses of counsel
for the Underwriters payable in connection with the review of the offering of
the Shares by the NASD, and the cost of furnishing to the Underwriters the
required copies of the Registration Statement, all Preliminary Prospectuses and
the Prospectus and any amendments or supplements thereto; PROVIDED, that each
Selling Stockholder agrees to pay or cause to be paid its pro rata share (based
on the percentage which the number of Shares sold by such Selling Stockholder
bears to the total number of Shares sold) of all underwriting discounts and
commissions.
8. EXPENSES. The Company covenants and agrees with the severa
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses
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of the Company's counsel and accountants in connection with the registration of
the Shares under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing, producing and reproducing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses and filing fees in connection with the qualification of the Shares
for offering and sale under securities laws of various jurisdictions as provided
in Section 6(b) hereof and the filing fees incident to securing any required
review by the NASD of the terms of the sale of the Shares; (iv) the fees and
disbursements of counsel for the Underwriters in connection with the
qualification of the Shares for offering and sale under securities laws of
various jurisdictions as provided in Section 6(b) hereof and in connection with
the Blue Sky survey, and the fees and expenses of counsel to the Underwriters
incident to securing any required review by the NASD of the terms of the sale of
the Shares, all subject to a maximum of $25,000; (v) the cost of preparing stock
certificates; (vi) the cost and charges of any transfer agent or registrar; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 10 and Section 13 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees and expenses of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, to the condition that all representations and
warranties and other statements of the Company and each Selling Stockholder
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company and each Selling Stockholder shall each have performed all of
their respective obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 6(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Ropes & Gray, counsel to the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to this Agreement, the Registration Statement, the
Prospectus and other related matters as you may reasonably request;
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<PAGE>
(c) Goodwin, Procter & Hoar LLP, counsel to the Company, shall
have furnished to you their written opinion, dated such Time of
Delivery, in form and substance reasonably satisfactory to you, with
respect to the matters set forth in Annex I hereto;
(d) On the effective date of the Registration Statement at a
time prior to execution of this Agreement, at 9:30 a.m. Boston time on
the effective date of the most recently filed post-effective amendment
to the Registration Statement and at each Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters, dated the respective date of delivery thereof, in form and
substance reasonably satisfactory to you, to the effect set forth in
Annex II hereto;
(e) (i) Neither the Company nor any of its subsidiaries have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in the Prospectus,
and (ii) since the respective dates as of which information is given in
the Prospectus, there shall not have been any change in the capital
stock (other than issuances of Common Stock pursuant to Company stock
option and stock purchase plans described in the Registration Statement
and Prospectus) or long-term debt of the Company or any change, or any
development involving a prospective change, in or affecting the
business, assets, management, financial position or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth in the Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of
the Shares being delivered at such Time of Delivery on the terms and in
the manner contemplated in the Prospectus;
(f) On or after the date hereof there shall not have occurred
any of the following: (i) additional material governmental
restrictions, not in force and effect on the date hereof, shall have
been imposed upon trading in securities generally or minimum or maximum
prices shall have been generally established on the New York Stock
Exchange or on the American Stock Exchange or in the NASDAQ National
Market, or trading in securities generally or in the Shares shall have
been suspended or materially limited on the NASDAQ National Market, or
a general banking moratorium shall have been established by federal,
New York or Massachusetts authorities, or (ii) an outbreak or
escalation of hostilities or other national or international calamity
or any substantial change in political, financial or economic
conditions shall have occurred or shall have accelerated or escalated
to such an extent, as, in the judgment of the Representatives, to
affect adversely the marketability of the Shares;
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<PAGE>
(g) The Shares to be sold at such Time of Delivery shall have
been duly listed for quotation on the Nasdaq National Market System;
(h) Each director and officer of the Company and each Selling
Stockholder shall have executed and delivered to you a lock-up
agreement in form and substance reasonably satisfactory to you;
(i) The Company and each Selling Stockholder shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and certificates of such
Selling Stockholder or officers of such Selling Stockholder,
respectively, in their capacities as such, reasonably satisfactory to
you, as to the accuracy of the representations and warranties of the
Company and of such Selling Stockholder, respectively, herein at and as
of such Time of Delivery, as to the performance by the Company and of
such Selling Stockholder, respectively, of all of his, her or its
obligations hereunder to be performed at or prior to such Time of
Delivery, and as to such other matters as you may reasonably request
and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a), (e), (g)
and (h) of this Section, and as to such other matters as you may
reasonably request;
(j) Counsel to each Material Subsidiary (which counsel shall
be reasonably satisfactory to you) shall have furnished to you their
respective written opinions, dated such Time of Delivery, in form and
substance reasonably satisfactory to you, with respect to the matters
set forth in Annex III hereto; and
(k) Counsel to each Selling Stockholder (which counsel shall
be reasonably satisfactory to you) shall have furnished to you their
respective written opinions, dated such Time of Delivery, in form and
substance reasonably satisfactory to you, with respect to the matters
set forth in Annex IV hereto.
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act (each, a "COMPANY
INDEMNIFIED PARTY") against any losses, claims, damages or liabilities,
joint or several (a "LOSS"), to which any Company Indemnified Party 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 an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment or
supplement thereto, 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 any Company Indemnified Party for any legal or other
expenses reasonably incurred by such Company Indemnified Party in
connection with
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investigating or defending any such action or claim as such expenses
are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such Loss arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through you expressly for
use therein.
(b) Each Selling Stockholder, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter and each person,
if any, who controls such Underwriter within the meaning of Section 15
of the Act (each, a "SELLING STOCKHOLDER INDEMNIFIED PARTY") against
any Loss to which any Selling Stockholder Indemnified Party 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 an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, 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 any Selling Stockholder Indemnified Party for any legal or
other expenses reasonably incurred by such Selling Stockholder
Indemnified Party in connection with investigating or defending any
such action or claim as such expenses are incurred; PROVIDED, HOWEVER,
that this indemnity shall apply with respect to such Selling
Stockholder only to the extent that any such Loss arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished by such Selling Stockholder specifically for use
in the preparation thereof; AND, PROVIDED, FURTHER, that such Selling
Stockholder shall not be liable in any such case to the extent that any
such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through you expressly for use therein.
(c) Each Major Selling Stockholder, severally and not jointly,
agrees to indemnify and hold harmless each Selling Stockholder
Indemnified Party against any Loss to which any Selling Stockholder
Indemnified Party may become subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon the inaccuracy or a breach of the representation and
warranty in Section 2A, and will reimburse any Selling Stockholder
Indemnified Party for any legal or other expenses reasonably incurred
by such Selling Stockholder Indemnified Party in connection with
investigating or defending any such action or claim as such expenses
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are incurred; AND, PROVIDED, FURTHER, that such Major Selling
Stockholder shall not be liable in any such case to the extent that any
such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through you expressly for use therein;
(d) Each Underwriter will, severally and not jointly,
indemnify and hold harmless the Company, each Selling Stockholder, each
of the directors of the Company, each of the officers of the Company
who shall have signed the Registration Statement, and each other
person, if any, who controls the Company or any Selling Stockholder
within the meaning of Section 15 of the Act (each, an "UNDERWRITER
INDEMNIFIED PARTY") against any Loss to which any Underwriter
Indemnified Party 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 an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus,
or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for
use therein, and will reimburse any Underwriter Indemnified Party for
any legal or other expenses reasonably incurred by it or them in
connection with investigating or defending any such action or claim as
such expenses are incurred.
(e) Promptly after receipt by an indemnified party under
subsection (a), (b), (c) or (d) above of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof;
no indemnification shall be available hereunder to any party who shall
fail to give notice as provided in the preceding sentence if, and only
to the extent that, the party to whom such notice was not given was
unaware of the action, suit, investigation, inquiry or proceeding to
which the notice would have related and was materially prejudiced by
the failure to give such notice, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
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reasonably satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified party is an actual
or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim 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 any
indemnified party.
(f) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b), (c) or (d) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other hand from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (e) above, then each
indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company and the Selling Stockholders on the one hand and the
Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriters on
the other hand shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses)
received by the Company and the Selling Stockholders, respectively,
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 any
Selling Stockholder on the one hand or the Underwriters on the other
hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
subsection (f) were determined by pro rata
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<PAGE>
allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (f). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (f) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (f), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares 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 and no Selling
Stockholder shall be required to contribute any amount in excess of the
net proceeds received by such Selling Stockholder with respect to the
Shares sold by such Selling Stockholder. 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 (f) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(g) In no event shall any Selling Stockholder be liable or
responsible under this Section 10 for any amount in the aggregate in
excess of the net proceeds received by such Selling Stockholder with
respect to the Shares sold by such Selling Stockholder under this
Agreement.
(h) In the event of a claim for indemnification by a Selling
Stockholder Indemnified Party pursuant to Section 10(c), to the extent
that such Selling Stockholder Indemnified Party is entitled to
indemnification or contribution from the Company under this Section 10
for such claim, such Selling Stockholder Indemnified Party shall first
obtain recovery, to the extent recoverable, against the Company for
such indemnification or contribution prior to taking any action against
any of the Major Selling Stockholders under Section 10(c); PROVIDED,
that such Selling Stockholder Indemnified Party shall not be required
to delay acting against any Major Selling Stockholder if and to the
extent such delay would prejudice such Selling Stockholder Indemnified
Party's rights under this Agreement.
(i) Except in the case of claims based on fraud or seeking
equitable relief, the sole and exclusive remedy for the inaccuracy or
breach of the representation and warranty in Section 2A shall be
limited to the indemnification provisions of Section 10(c).
11. TERMINATION.
(a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time
of Delivery, you may in your
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<PAGE>
discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company and the
Selling Stockholders shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company
and the Selling Stockholders that you have so arranged for the purchase
of such Shares, or the Company and the Selling Stockholders notify you
that they have so arranged for the purchase of such Shares, you or the
Company and the Selling Stockholders shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in
your opinion may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party
to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company and the Selling Stockholders as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-tenth of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company
and the Selling Stockholders shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and,
in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the number of Shares which such Underwriter
agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made, but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company and the Selling Stockholders as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased exceeds one-tenth of the aggregate number of all the Shares
to be purchased at such Time of Delivery, or if the Company and the
Selling Stockholders shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company and the Selling
Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter, the
Company or any Selling Stockholder, except for the expenses to be borne
by the Company, any Selling Stockholder and the Underwriters as
-24-
<PAGE>
provided in Section 8 hereof and the indemnity and contribution
agreements in Section 10 hereof (provided, that such indemnity and
contribution agreements shall not survive in the
event that this Agreement terminates prior to the First Time of
Delivery), but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
12. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company, each Selling Stockholder and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or any Selling Stockholder, or any officer or
director or controlling person of the Company or any Selling Stockholder, and
shall survive delivery of and payment for the Shares.
13. EXPENSES OF TERMINATION. If this Agreement shall be terminated
pursuant to Section 11 hereof, neither the Company nor any Selling Stockholder
shall then have any liability to any Underwriter except as provided in Sections
8 and 10 hereof (provided, that the indemnity and contribution agreements in
Section 10 hereof shall not survive in the event that this Agreement terminates
prior to the First Time of Delivery), but if for any other reason this Agreement
is terminated, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but neither the Company nor any Selling
Stockholder shall have any further liability to any Underwriter in respect of
the Shares not so delivered except as provided in Sections 8 and 10 hereof
(provided, that the indemnity and contribution agreements in Section 10 hereof
shall not survive in the event that this Agreement terminates prior to the First
Time of Delivery).
14. NOTICE. In all dealings hereunder, you shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by you jointly or by Adams, Harkness & Hill, Inc. on behalf of you
as the Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of Adams, Harkness
& Hill, Inc., 60 State Street, Boston, MA 02109, Attention: Joseph W. Hammer; if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: President, with a copy to Stuart M. Cable, P.C., Goodwin,
Procter & Hoar LLP, Exchange Place, Boston, MA 02109-2881; and if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to the address of such Selling Stockholder set forth in Schedule II hereto;
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 10(e)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriter's Questionnaire or
telex constituting such
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<PAGE>
Questionnaire, which address will be supplied to the Company by you on request.
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
15. MISCELLANEOUS.
(a) This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and the Selling
Stockholders and, to the extent provided in Sections 10 and 12 hereof,
the officers and directors of the Company and each person who controls
the Company, any Selling Stockholder or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
(b) Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day on which the
Commission's office in Washington, D.C. is open for business.
(c) This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
(d) This Agreement may be executed by any one or more of the
parties hereto 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 instrument.
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<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination, upon request, but without warranty on
your part as to the authority of the signors thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact
for the Selling Stockholders represents by so doing that he or she has been duly
appointed as Attorney-in-Fact by each Selling Stockholder pursuant to a validly
existing and binding Power-of-Attorney which authorizes such Attorney-in-Fact to
take such action.
Very truly yours,
MOLDFLOW CORPORATION
By:_________________________
Marc J. L. Dulude
President and Chief Executive Officer
SELLING STOCKHOLDERS
(Named in Schedule II to the Agreement)
By:_________________________
Name:
Title: Attorney-in-Fact
Accepted as of the date
hereof at Boston, Massachusetts
ADAMS, HARKNESS & HILL, INC.
ROBERT W. BAIRD & CO. INCORPORATED
A.G. EDWARDS & SONS, INC.
By:______________________________
(Adams, Harkness & Hill, Inc.
On behalf of each of
the Underwriters)
S-1
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Total Number Number of Optional Shares to
of Firm Shares be Purchased if Maximum
to be Purchased Option Exercised
--------------- ----------------------------
<S> <C> <C>
Adams, Harkness & Hill, Inc.
Robert W. Baird & Co. Incorporated
A.G. Edwards & Sons, Inc.
========= =======
2,335,000 350,000
</TABLE>
S-2
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Total Number of Firm Total Number of Optional
Shares to be Sold Shares to be Sold
--------------------- ------------------------
<S> <C> <C>
The Company
575,000 170,000
Ampersand Specialty Materials 504,555 49,545
and Chemicals II Limited
Partnership
55 William Street, Suite 240
Wellesley, MA 02481
Ampersand Specialty Materials 856,518 84,105
and Chemicals III Limited
Partnership
55 William Street, Suite 240
Wellesley, MA 02481
Ampersand Specialty Materials 13,927 1,350
and Chemicals III Companion
Fund Limited Partnership
55 William Street, Suite 240
Wellesley, MA 02481
JTC Investment Management 195,000 15,000
Pty. Ltd.
Level 7
530 Little Collins Street
Melbourne, Victoria 3000
Australia
Marc J. L. Dulude 50,000 20,000
c/o Moldflow Corporation
430 Boston Post Road
Wayland, MA 01778
Thomas Investments Australia 25,000 5,000
Pty. Ltd.
c/o Moldflow Corporation
430 Boston Post Road
Wayland, MA 01778
<PAGE>
Helmet Investments Australia 25,000 5,000
Pty. Ltd.
c/o Moldflow Corporation
430 Boston Post Road
Wayland, MA 01778
Floatflow Pty. Ltd. 60,000 -0-
13 Townsend Street
Ivanhoe, Victoria 3079
Australia
Richard M. Underwood 10,000 -0-
c/o Moldflow Corporation
430 Boston Post Road
Wayland, MA 01778
Suzanne E. Rogers 10,000 -0-
c/o Moldflow Corporation
430 Boston Post Road
Wayland, MA 01778
Kenneth R. Welch 10,000 -0-
c/o Moldflow Corporation
430 Boston Post Road
Wayland, MA 01778
----------- ----------
2,335,000 350,000
</TABLE>
<PAGE>
ANNEX I
Matters to be Covered in the Opinion of Goodwin, Procter & Hoar LLP
1. The Company is existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power to conduct its business as
described in the Registration Statement and Prospectus. The Company is duly
qualified to do business and is in good standing in each jurisdiction listed on
Annex A to this opinion.
2. The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued and outstanding shares of capital stock of the
Company (other than the Shares) have been duly authorized, validly issued, and
are fully paid and non-assessable. The Shares have been duly authorized and when
issued and paid for as contemplated by the Underwriting Agreement will be
validly issued, fully paid and non-assessable; and the Shares conform in all
material respects to the description of the capital stock contained in the
Prospectus;
3. Each direct or indirect domestic subsidiary of the Company listed on
Annex B to this opinion is a corporation duly incorporated and existing as a
corporation in good standing under the laws of its jurisdiction of organization.
All of the issued and outstanding shares of capital stock of each such
subsidiary have been duly authorized, validly issued, are fully paid and
non-assessable, and are owned of record by the Company or a wholly-owned
subsidiary of the Company free and clear of all liens, encumbrances or claims
known to such counsel (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of matters
of fact upon certificates of officers of the Company and its subsidiaries).
4. The Company has full corporate power and authority to enter into the
Underwriting Agreement and the Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
5. The issuance and sale by the Company of the Shares and the
performance by the Company of its obligations under the Underwriting Agreement
does not and will not (i) result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company, (ii) result in a breach
of or result in a default on the part of the Company under any agreement,
indenture or other instrument filed as an exhibit to the Registration Statement
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound, or to which any of their respective
properties is subject, or (iii) violate any existing Massachusetts or federal
statute or any order, rule or regulation or any decree known to such counsel of
any court or any governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties, except
that such counsel need express no opinion as to state securities or "Blue Sky"
laws or as to compliance with the antifraud provisions of federal and state
securities laws.
I-1
<PAGE>
6. No consent, approval, authorization, order, registration or
qualification of or with any federal or Massachusetts governmental agency or
body is required to be obtained by the Company for the issuance and sale of the
Shares by the Company or the consummation by the Company of the transactions
contemplated by the Underwriting Agreement, except the registration of the
Shares under the Act and the rules and regulations thereunder and except as may
be required under state securities or Blue Sky laws (as to which such counsel
need express no opinion). To the knowledge of such counsel, no consent,
approval, authorization, order, registration or qualification of or with any
federal or Massachusetts court is required to be obtained by the Company for the
issuance and sale of the Shares by the Company or the consummation by the
Company of the transactions contemplated by the Underwriting Agreement.
7. The Company is not an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company" as
defined in the Investment Company Act.
8. Immediately prior to the Closing, each Selling Stockholder was the
record owner of the Shares to be sold by such Selling Stockholder. Upon payment
by the Underwriters of the purchase price in accordance with the Underwriting
Agreement, and upon registration of the Shares in the names of the Underwriters
in the stock records of the Company (or in the name of a nominee for DTC in such
stock records, with appropriate entries to the account of the Underwriters
having been made in the records of DTC), the Underwriters will have acquired
such Selling Stockholder's rights in the Shares that such Selling Stockholder
had or had the power to transfer, free of any adverse claim (assuming that the
Underwriters are without notice of any such claim and assuming such transfer is
governed by the Massachusetts UCC).
9. The statements set forth in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute a summary
of the terms of the Common Stock, under the caption "Shares Eligible for Future
Sale," insofar as they purport to describe the provisions of the laws and
documents referred to therein, and under the caption "Underwriting," insofar as
they purport to describe the provisions of the laws and the Underwriting
Agreement, are accurate, complete and fair.
Such counsel shall also state that as counsel to the Company, they have
participated in the preparation of the Registration Statement and the
Prospectus, participated in discussions with your representatives, those of
counsel for the Underwriters, and those of the Company and its accountants. On
the basis of the information that such counsel gained in the course of the
performance of the services referred to above, considered in the light of such
counsel's understanding of the applicable law and the experience such counsel
has gained through its practice under the Act, such counsel will confirm to you
that such counsel believes that the Registration Statement, as of its effective
date, and the Prospectus, as of the date of the Prospectus, appeared on their
face to be appropriately responsive in all material respects to the
I-2
<PAGE>
requirements of the Act and the applicable rules and regulations thereunder.
Further, nothing that came to such counsel's attention in the course of such
review has caused such counsel to believe that the Registration Statement, as of
its effective 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, as of the date of
the Prospectus, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading or that,
as of such Time of Delivery, the Prospectus contains an untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In addition, such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company or its
subsidiaries that would be required to be disclosed in the Prospectus that is
not so disclosed. Also, such counsel does not know of any documents that are
required to be filed as exhibits to the Registration Statement and are not so
filed or of any documents that are required to be summarized in the Registration
Statement and the Prospectus and are not so summarized.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such, however, that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for those made under the
captions "Description of Capital Stock," "Shares Eligible for Future Sale" and
"Underwriting" in the Prospectus, insofar as they accurately summarize in all
material respects the provisions of the laws and documents referred to therein
and to the extent set forth in our opinion above. Also, such counsel does not
express any opinion or belief as to the financial statements and related
schedules or any other financial and accounting information contained in the
Registration Statement or the Prospectus.
Such counsel shall also include a statement in such opinion as to the
matters set forth in this paragraph. The Registration Statement has become
effective under the Act. To the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued by
the Commission nor has any proceeding been instituted or contemplated for that
purpose under the Act. The Prospectus has been filed with the Commission
pursuant to Rule 424(b) of the rules and regulations under the Act within the
time period required thereby.
I-3
<PAGE>
ANNEX II
[Attach comfort letter]
II-1
<PAGE>
ANNEX III
Matters to be Covered in the Opinions of Counsel to the Material Subsidiaries
1. The Material Subsidiary is a corporation duly incorporated, validly existing
and in good standing under the laws of [jurisdiction of organization].
2. All of the issued and outstanding shares of the capital stock of the Material
Subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable, and are owned of record by [Insert the Company or a wholly-owned
subsidiary of the Company], free and clear of all liens, encumbrances or claims
to the knowledge of such counsel (other than pledges existing pursuant to the
Company's Loan Agreement with Silicon Valley Bank). [Counsel being entitled to
rely in respect of matters of fact upon certificates of officers of the Company
or the Material Subsidiary]
III-1
<PAGE>
ANNEX IV
Matters to be Covered in the Opinions of Counsel to the Selling Stockholders
1. Selling Stockholder is a [corporation] [limited partnership] duly
[incorporated] [formed], validly existing and in good standing under the laws of
[jurisdiction of organization]. Selling Stockholder has full power and authority
to enter into the Underwriting Agreement and the Custody Agreement and to sell,
transfer and deliver the Shares to be sold by Selling Stockholder.
2. The Underwriting Agreement has been duly authorized, executed and delivered
by Selling Stockholder through its duly authorized attorney-in-fact.
3. The Custody Agreement has been duly authorized, executed and delivered by
Selling Stockholder and, pursuant to such Custody Agreement, Selling Stockholder
has authorized its attorney-in-fact to carry out the transactions contemplated
in the Underwriting Agreement on its behalf and to deliver the Shares being sold
by Selling Stockholder pursuant to the Underwriting Agreement.
4. The performance by Selling Stockholder of its obligations under the
Underwriting Agreement and Custody Agreement does not and will not conflict
with, result in a breach of, or result in a default under, its organizational
documents, any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument known to such counsel to which
Selling Stockholder is a party or by which Selling Stockholder or any of its
properties are bound or affected, or violate or conflict with (i) any judgment,
ruling, decree or order known to us or (ii) any [applicable jurisdiction]
statute, or rule or regulation of any [applicable jurisdiction] court or
governmental agency or body applicable to Selling Stockholder.
5. No consent, approval, authorization, order, registration or qualification of
or with any [applicable jurisdiction] court or governmental agency or body is
required to be obtained by Selling Stockholder to sell, assign, transfer and
deliver the Shares to be sold by Selling Stockholder in the manner provided in
the Underwriting Agreement and the Custody Agreement, other than as have been
obtained.
IV-1
