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EXHIBIT 1.1
YELLOWBRIX, INC.
[______________ SHARES]
COMMON STOCK
UNDERWRITING AGREEMENT
__________, 2000
CHASE SECURITIES INC.
DAIN RAUSCHER INCORPORATED
WIT SOUNDVIEW CORPORATION
As Representatives of the Several Underwriters
c/o Chase Securities Inc.
One Bush Street
San Francisco, CA 94104
Ladies and Gentlemen:
YellowBrix, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell shares of its authorized but unissued Common Stock, $.001 par
value ("COMMON STOCK") (said ____ shares of Common Stock being herein called
the "UNDERWRITTEN STOCK"). The Company proposes to grant to the Underwriters
(as hereinafter defined) an option to purchase up to _____ additional shares of
Common Stock (herein called the "OPTION STOCK" and with the Underwritten Stock
herein collectively called the "STOCK"). The Common Stock is more fully
described in the Registration Statement and the Prospectus hereinafter
mentioned.
The Company hereby confirms the agreements made with respect to the
purchase of the Stock by the several underwriters, for whom you are acting,
named in Schedule I hereto (herein collectively called the "UNDERWRITERS,"
which term shall also include any underwriter purchasing Stock pursuant to
Section 3(b) hereof). As part of the offering contemplated by this Underwriting
Agreement, the Underwriters have agreed to reserve out of the Underwritten
Stock pursuant to this Underwriting Agreement, up to _______ shares of Common
Stock for sale to the Company's directors, officers, employees, vendors,
strategic partners (including those referenced in the Registration Statement
and the Prospectus (as defined herein)) and other parties associated with the
Company (collectively, "PARTICIPANTS"), as set forth in the Registration
Statement and Prospectus (the "DIRECTED SHARE PROGRAM"). The Underwritten Stock
to be sold by the Underwriters pursuant to the Directed Share Program (the
"DIRECTED SHARES") will be sold by the Underwriters pursuant to this
Underwriting Agreement at the public offering price. Any Directed Shares not
orally confirmed for purchase by a Participant by the end of the business day
on which this Agreement is executed will be offered to the public by the
Underwriter as set forth in the Prospectus. You represent and warrant that you
have been authorized by each of the other Underwriters to enter into this
Agreement on its behalf and to act for it in the manner herein provided.
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1. REGISTRATION STATEMENT. The Company has filed with the Securities and
Exchange Commission (herein called the "COMMISSION") a registration statement
on Form S-1 (No. 333-48354), including the related preliminary prospectus, for
the registration under the Securities Act of 1933, as amended (the "SECURITIES
ACT") of the Stock. Copies of such registration statement and of each amendment
thereto, if any, including the related preliminary prospectus (meeting the
requirements of Rule 430A of the rules and regulations of the Commission)
heretofore filed by the Company with the Commission have been delivered to you.
The term "REGISTRATION STATEMENT" as used in this Underwriting Agreement
shall mean such registration statement, including all exhibits and financial
statements and all information omitted therefrom in reliance upon Rule 430A and
contained in the Prospectus referred to below, in the form in which it became
effective, and any registration statement filed pursuant to Rule 462(b) of the
rules and regulations of the Commission with respect to the Stock (herein
called a Rule 462(b) registration statement), and, in the event of any
amendment thereto after the effective date of such registration statement (the
"EFFECTIVE DATE"), shall also mean (from and after the effectiveness of such
amendment) such registration statement as so amended (including any Rule 462(b)
registration statement). The term "PROSPECTUS" as used in this Underwriting
Agreement shall mean the prospectus relating to the Stock first filed with the
Commission pursuant to Rule 424(b) and Rule 430A (or if no such filing is
required, as included in the Registration Statement) and, in the event of any
supplement or amendment to such prospectus after the Effective Date, shall also
mean (from and after the filing with the Commission of such supplement or the
effectiveness of such amendment) such prospectus as so supplemented or amended.
The term "PRELIMINARY PROSPECTUS" as used in this Agreement shall mean each
preliminary prospectus included in any registration statement referred to above
other than the Registration Statement prior to the time it becomes effective.
The Registration Statement has been declared effective under the
Securities Act, and no post-effective amendment to the Registration Statement
has been filed on or prior to the date of this Underwriting Agreement. No order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus has been issued by the Commission. Each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the Securities 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 light of the circumstances under
which they were made, not misleading; provided, however, that none of the
representations and warranties in this sentence shall apply to statements in,
or omissions from, any Preliminary Prospectus that were made in reliance upon
and in conformity with information herein or otherwise furnished in writing to
the Company by or on behalf of the Underwriters for use in any Prospectus, it
being understood that the only information so furnished shall be that which is
specified in Section 4(b) hereof. The Company has caused to be delivered to you
copies of each Preliminary Prospectus and has consented to the use of such
copies for the purposes permitted by the Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company hereby represents and warrants as follows:
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(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has full corporate power and authority to own or lease
its properties and conduct its business as now, or as proposed to be, conducted
as described in the Registration Statement and the Prospectus (collectively,
the "BUSINESS"). The Company is duly qualified as a foreign corporation and is
in good standing in all jurisdictions in which the character of the property
owned or leased or the nature of its Business makes qualification necessary
(except where the failure to be so qualified would not have a material adverse
effect on the Business, or the assets, management, general affairs, properties,
stockholders' equity, financial condition or results of operations of the
Company). The Company does not own or control (as such term is defined in Rule
405 under the Securities Act), directly or indirectly, any corporation,
association or other entity.
(ii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (A) there has not been
any change in the capital stock or long-term debt of the Company, (B) there has
not been any material adverse change in the Business or the assets, management,
general affairs, properties, stockholders' equity, financial condition or
results of operations of the Company, whether or not arising from transactions
in the ordinary course of business, other than as set forth in the Registration
Statement and the Prospectus (any such change or effect, where the context so
requires, is called a "MATERIAL ADVERSE CHANGE" or a "MATERIAL ADVERSE
EFFECT"), (C) there has not been any material loss or interference with the
Business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor or employment dispute or court or governmental
action, order or decree other than as set forth in the Registration Statement
and the Prospectus, and (D) the Company has not entered into any material
transaction not referred to in the Registration Statement and the Prospectus,
except in the ordinary course of business.
(iii) The Registration Statement and the Prospectus comply,
and on the Closing Date (as hereinafter defined) and any later date on which
Option Stock is to be purchased, the Prospectus will comply, in all material
respects, with the provisions of the Securities Act and the rules and
regulations of the Commission thereunder; on the Effective Date, the
Registration Statement did not contain any untrue statement of a material fact
and did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and, on the
Effective Date the Prospectus did not and, on the Closing Date and any later
date on which Option Stock is to be purchased, will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that none of the
representations and warranties in this subparagraph (iii) shall apply to
provided, however, that none of the representations and warranties in this
sentence shall apply to statements in, or omissions from, the Registration
Statement and the Prospectus that were made in reliance upon and in conformity
with information herein or otherwise furnished in writing to the Company by or
on behalf of the Underwriters for use in the Registration Statement or the
Prospectus, it being understood that the only information so furnished shall be
that which is specified in Section 4(b) hereof (the "UNDERWRITER PROVIDED
INFORMATION"). There are no contracts, other documents or other agreements
required to be described in the Registration Statement and the Prospectus or to
be filed as exhibits to the Registration Statement by the Securities Act or by
the rules and regulations thereunder which have not been described or filed as
required; the contracts so described in the Registration Statement and the
Prospectus are in
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full force and effect on the date hereof; and neither the Company nor, to the
best of the Company's knowledge, any other party is in breach of or default in
any material respect under any of such contracts. There are no actual or
proposed business relationships or related-party transactions involving the
Company or any other person required to be described in the Registration
Statement and the Prospectus which have not been described as required. All
statistical and market-related data included in the Registration Statement and
the Prospectus are correct and are based on or derived from sources that the
Company believes to be reliable and accurate, and the Company has received the
written consent to the use of such data from such sources to the extent
required.
(iv) The Stock, when issued and sold by the Company to the
Underwriters as provided herein, will be duly and validly issued, fully paid
and nonassessable and will conform to the description thereof in the
Registration Statement and the Prospectus, and the Underwriters will receive
good and marketable title thereto, free and clear of all liens, encumbrances,
equities, security interests and claims whatsoever. 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 Stock as contemplated herein.
(v) This Underwriting Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the
Company, enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(vi) Except as disclosed in the Registration Statement and
the Prospectus, there are no (i) contracts, agreements or understandings
between the Company and any person that would give rise to a valid claim
against the Company or the Underwriters for a brokerage commission, finder's
fee or other like payment in connection with this offering, and (ii) there are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
company owned or to be owned by such person. There are no persons with (A)
registration or other similar rights to have any equity or debt securities
registered for sale under the Registration Statement or included in the
offering contemplated by this Underwriting Agreement, except for such rights as
have been duly and irrevocably waived or (B) anti-dilution or similar rights to
receive additional capital stock of the Company, other than the specific
anti-dilution or similar rights issuances as are described in the Registration
Statement and the Prospectus.
(vii) Ernst & Young LLP, who has expressed its opinion with
respect to the financial statements of the Company, including the related notes
thereto, filed with the Commission as a part of the Registration Statement and
included in the Prospectus (the "FINANCIAL STATEMENTS"), is an independent
public or certified public accountant as required by the Securities Act and the
rules and regulations of the Commission thereunder.
(viii) The Financial Statements filed with the Commission as a
part of the Registration Statement and included in the Prospectus present
fairly the financial position of the
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Company as of and at the dates indicated and the results of its operations and
cash flows for the periods specified. Such Financial Statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. The pro forma financial statements and
other pro forma financial information included in the Prospectus and in the
Registration Statement present fairly the information contained therein, have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly presented on
the bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. No other pro
forma financial information is required to be included in the Registration
Statement or the Prospectus pursuant to Regulation S-X. Except as disclosed in
the Registration Statement and the Prospectus, since the date of the latest
audited financial statements included in the Registration Statement and the
Prospectus, there has been no Material Adverse Change, nor any development or
event involving a prospective Material Adverse Change, and there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(ix) The Company maintains a system of accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(x) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under the caption
"CAPITALIZATION" (other than for subsequent issuances, if any, pursuant to
employee benefit plans described in the Prospectus or upon exercise of
outstanding options, rights or warrants described in the Prospectus). The
Common Stock (including the Stock) conforms in all material respects to the
description thereof contained in the Prospectus. All of the issued and
outstanding shares of capital stock of the Company have been duly authorized
and validly issued, are fully paid and nonassessable and have been issued in
compliance with federal and state securities laws. None of the outstanding
shares of capital stock of the Company, and none of the outstanding options,
rights or warrants to purchase capital stock or securities of the Company, were
issued in violation of any preemptive rights, rights of first refusal or other
similar rights to subscribe for or purchase securities of the Company. After
giving effect to irrevocable waivers obtained prior to the execution of this
Underwriting Agreement, the stockholders of the Company have no preemptive
rights to acquire capital stock of the Company. There are no authorized or
outstanding options, rights, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the Company other
than those accurately described in the Registration Statement and the
Prospectus. The description of the Company's outstanding warrants and stock
option, stock bonus and other stock plans or arrangements, and the warrants,
options or other rights granted thereunder, set forth in the Registration
Statement and the Prospectus accurately and fairly presents the information
required to be shown with respect to such plans, arrangements, options and
rights.
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(xi) No consent, approval, authorization, filing with or
order of any court or governmental agency or regulatory body is required in
connection with the transactions contemplated herein, except such as have been
obtained or made under the Securities Act and the Exchange Act and such as may
be required (i) under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Stock by the Underwriters in the manner
contemplated herein and in the Registration Statement and the Prospectus, and
(ii) by the National Association of Securities Dealers, Inc. ("NASD"). The
Stock to be issued and sold by the Company has been authorized for listing by
the Nasdaq National Market upon official notice of issuance.
(xii) Neither the issue and sale of the Stock, nor the
consummation of any other of the transactions herein contemplated, nor the
fulfillment of the terms hereof will conflict with, result in a breach of or
violation under or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, (i) the charter or by-laws of
the Company as currently in effect or as presently contemplated, as set forth
in the Registration Statement and the Prospectus, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which the Company is a party or bound, or to which its assets or property is
subject or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the
Company or any of its assets or properties. Neither the Company nor any of its
affiliates has taken, directly or indirectly, any action designed to or which
has constituted or which might reasonably be expected to cause or result, under
the Securities Exchange Act of 1934, as amended, (the "EXCHANGE ACT"), or
otherwise, in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Stock.
(xiii) Neither the Company nor its Business is in violation or
default of, or is reasonably likely to be in violation of or default under, (i)
any provision of its charter or by-laws, as currently in effect or as presently
contemplated, as set forth in the Registration Statement and the Prospectus,
(ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant
or instrument to which it is a party or bound or to which its assets or
property is subject, except any such violation or default which would not,
singly or in the aggregate, result in a Material Adverse Change, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company, its Business, assets or
properties, as applicable. Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes. The Company has
no reason to believe, that it is not, or will not be, conducting its Business
in compliance with all applicable laws, rules and regulations of all applicable
jurisdictions, including, without limitation, all applicable local, state and
federal environmental laws and regulations, except where failure to be so in
compliance would not have a Material Adverse Effect.
(xiv) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or its property is pending or, to the best knowledge of the Company, threatened
that (i) could reasonably be expected to have any effect on the performance of
this Underwriting Agreement or the consummation of any of
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the transactions contemplated hereby or (ii) could reasonably be expected to
result in a Material Adverse Effect.
(xv) The Company owns, or has obtained licenses (which such
licenses are enforceable against the Company and, to the Company's best
knowledge, the other parties thereto) for, the patents, patent rights, patent
applications or licenses, inventions, collaborative research agreements, trade
secrets, know-how (including trade secrets and other unpatented and/or
unpatentable propriety or confidential information, systems or procedures),
trademarks, service marks, trade names and copyrights (collectively, the
"INTELLECTUAL PROPERTY") which are necessary to conduct its Business; the
expiration of any such patents, patent rights, licenses, trade secrets,
trademarks, service marks, trade names or copyrights would not result in a
Material Adverse Change; the Company has not received any notice of, and has no
knowledge of, any infringement of or conflict with asserted rights of the
Company by others with respect to any Intellectual Property; and the Company
has not received any notice of, and has no knowledge of, any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could have a Material Adverse Change. There is no
claim currently pending, or, to the Company's knowledge, threatened, against
the Company regarding any Intellectual Property. The Company's Business does
not infringe or conflict with any right or patent of, or license or
collaborative research agreement with, any third party, or any discovery,
invention, product or process which is the subject of a patent application
filed by any third party, known to the Company, which such infringement or
conflict is reasonably likely to result in a Material Adverse Change. Other
than as set forth in the Registration Statement and the Prospectus, (a) the
Company has taken all reasonable steps necessary to secure interests in, and
preserve the confidential aspects of, its Intellectual Property from its
employees and contractors, (b) is not aware of outstanding options, licenses or
agreements of any kind relating to the Intellectual Property of the Company
which are required to be set forth in the Registration Statement and the
Prospectus; and (c) is not a party to or bound by any options, licenses or
agreements (other than standard off-the-shelf software licenses, as to which
the Company is not in default of or violation under) with respect to the
Intellectual Property of any other person or entity.
None of the technology employed by the Company has been obtained
or is being used by the Company in violation of any contractual fiduciary
obligation binding on the Company or any of its directors or executive officers
or, to the Company's knowledge, any of its employees, or otherwise in violation
of the rights of any persons. Except as disclosed in the Registration Statement
and the Prospectus, neither the execution nor delivery of this Underwriting
Agreement, nor the operation of the Business by the employees of the Company,
nor the conduct of the Business will result in any breach or violation of the
terms, conditions or provisions of, or constitute a default under, any
contract, covenant or instrument known to the Company under which any of such
employees is now obligated. The Company has taken and will maintain reasonable
measures to prevent the unauthorized dissemination or publication of its
confidential information and, to the extent contractually required to do so,
the confidential information of third parties in its possession.
(xvi) The Company possesses such valid and current
certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
Business, and has not received any notice of proceedings relating to the
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revocation or modification of, or non-compliance with, any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could result in a Material Adverse
Change.
(xvii) The Company has good and marketable title to all the
properties and assets reflected as owned in the Financial Statements referred
to above, in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except such as (i) do
not materially and adversely affect the value of such properties and assets;
(ii) do not materially interfere with the use made or proposed to be made of
such properties and assets by the Company; and (iii) are reflected in the
Financial Statements. The real property, improvements, equipment and personal
property held under lease by the Company are held under valid and enforceable
leases, with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real property,
improvements, equipment or personal property by the Company.
(xviii) The Company has filed all necessary federal, state and
foreign income and franchise tax returns and has paid all taxes required to be
paid by it and, if due and payable, any related or similar assessment, fine or
penalty levied against it. The Company has made adequate charges, accruals and
reserves in the applicable Financial Statements referred to above in respect of
all federal, state and franchise taxes for all periods as to which the tax
liability of the Company has not been finally determined. The Company is not
aware of any tax deficiency that has been or might be asserted or threatened
against the Company that could result in a Material Adverse Change. There are
no transfer taxes or other similar fees or charges under federal law or the
laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Underwriting Agreement or
the issuance and sale by the Company of the Stock.
(xix) The Company has not offered, or caused the Underwriters
to offer, any securities to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (i) a customer, vendor,
strategic partner or supplier of the Company to alter such party's level or
type of business with the Company or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its products. The
Company is aware of the rules and requirements under the Investment Company Act
of 1940, as amended (the "INVESTMENT COMPANY ACT"). The Company is not, and
after receipt of payment for the Stock and application of the net proceeds
thereof as described in the Registration Statement and the Prospectus will not
be, an "INVESTMENT COMPANY" or an entity "CONTROLLED" by an "INVESTMENT
COMPANY" within the meaning of the Investment Company Act.
(xx) The Company is insured by recognized, financially sound
and reputable institutions with policies in such amounts and with such
deductibles and covering such risks as are generally deemed adequate and
customary for the Business including, but not limited to, policies covering
real and personal property owned or leased by the Company against theft,
damage, destruction, acts of vandalism and earthquakes, general liability and
directors and officers liability. The Company has no reason to believe that it
will not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct the Business on terms that would
not result in a Material Adverse Change.
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(xxi) To the best of the Company's knowledge, no labor
disturbance by the employees of the Company exists or is imminent that might be
expected to result in a Material Adverse Change.
(xxii) The Company and each officer and director of the Company
and each beneficial owner of 5% or more of the outstanding issued share capital
of the Company has signed an agreement substantially in the form attached
hereto as Exhibit A (the "LOCK-UP AGREEMENTS"). The Company has provided to
counsel for the Underwriters a complete and accurate list of all
securityholders of the Company and the number and type of securities held by
each securityholder. The Company has provided to counsel for the Underwriters
true, accurate and complete copies of all of the Lock-up Agreements presently
in effect or effected hereby. The Company hereby represents and warrants that
it will not release any of its officers, directors or other stockholders from
any Lock-up Agreements currently existing or hereafter effected without the
prior written consent of Chase Securities Inc.
In addition, any certificate signed by any executive officer of the
Company, delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Stock shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
3. PURCHASE OF THE STOCK BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Company agrees to issue and
sell ________ shares of the Underwritten Stock to the several Underwriters and
each of the Underwriters agrees to purchase from the Company the respective
aggregate number of shares of Underwritten Stock set forth opposite its name in
Schedule I. The price at which such shares of Underwritten Stock shall be sold
by the Company and purchased by the several Underwriters shall be $______ per
share. In making this Agreement, each Underwriter is contracting severally and
not jointly; except as provided in paragraphs (b) and (c) of this Section 3,
the agreement of each Underwriter is to purchase only the respective number of
shares of the Underwritten Stock specified in Schedule I.
(b) If for any reason one or more of the Underwriters shall fail or
refuse (otherwise than for a reason sufficient to justify the termination of
this Underwriting Agreement under the provisions of Section 8 or 9 hereof) to
purchase and pay for the number of shares of the Stock agreed to be purchased
by such Underwriter or Underwriters, the Company shall immediately give notice
thereof to you, and the non-defaulting Underwriters shall have the right within
24 hours after the receipt by you of such notice to purchase, or procure one or
more other Underwriters to purchase, in such proportions as may be agreed upon
between you and such purchasing Underwriter or Underwriters and upon the terms
herein set forth, all or any part of the shares of the Stock which such
defaulting Underwriter or Underwriters agreed to purchase. If the
non-defaulting Underwriters fail so to make such arrangements with respect to
all such shares and portion, the number of shares of the Stock which each
non-defaulting Underwriter is otherwise obligated to purchase under this
Agreement shall be automatically increased on a pro rata basis to absorb the
remaining shares and portion which the defaulting Underwriter or
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Underwriters agreed to purchase; provided, however, that the non-defaulting
Underwriters shall not be obligated to purchase the shares and portion which
the defaulting Underwriter or Underwriters agreed to purchase if the aggregate
number of such shares of the Stock exceeds 10% of the total number of shares of
the Stock which all Underwriters agreed to purchase hereunder. If the total
number of shares of the Stock which the defaulting Underwriter or Underwriters
agreed to purchase shall not be purchased or absorbed in accordance with the
two preceding sentences, the Company shall have the right, within 24 hours next
succeeding the 24-hour period above referred to, to make arrangements with
other underwriters or purchasers satisfactory to you for purchase of such
shares and portion on the terms herein set forth. In any such case, either you
or the Company shall have the right to postpone the Closing Date determined as
provided in Section 5 hereof for not more than seven business days after the
date originally fixed as the Closing Date pursuant to said Section 5 in order
that any necessary changes in the Registration Statement, the Prospectus or any
other documents or arrangements may be made. If neither the non-defaulting
Underwriters nor the Company shall make arrangements within the 24-hour periods
stated above for the purchase of all the shares of the Stock which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Underwriting Agreement shall be terminated without further act or deed and
without any liability on the part of the Company to any non-defaulting
Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company. Nothing in this paragraph (b), and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
(c) On the basis of the representations, warranties and covenants
herein contained, and subject to the terms and conditions herein set forth, the
Company grants an option to the several Underwriters to purchase, severally and
not jointly, up to _______ shares in the aggregate of the Option Stock from the
Company at the same price per share as the Underwriters shall pay for the
Underwritten Stock. Said option may be exercised only to cover over-allotments
in the sale of the Underwritten Stock by the Underwriters and may be exercised
in whole or in part at any time (but not more than once) on or before the
thirtieth day after the date of this Agreement upon written or telegraphic
notice by you to the Company setting forth the aggregate number of shares of
the Option Stock as to which the several Underwriters are exercising the
option. Delivery of certificates for the shares of Option Stock, and payment
therefor, shall be made as provided in Section 5 hereof. The number of shares
of the Option Stock to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Stock to be purchased by
the several Underwriters as such Underwriter is purchasing of the Underwritten
Stock, as adjusted by you in such manner as you deem advisable to avoid
fractional shares.
4. OFFERING BY UNDERWRITERS.
(a) The terms of the initial public offering by the Underwriters of
the Stock to be purchased by them shall be as set forth in the Prospectus. The
Underwriters may from time to time change the public offering price after the
closing of the initial public offering and increase or decrease the concessions
and discounts to dealers as they may determine.
(b) The information set forth in the last paragraph on the front
cover page of the Prospectus and under the fifth and thirteenth paragraphs of
the caption "UNDERWRITING" in the Registration Statement and the Prospectus
(insofar as such information relates to the Underwriters) constitutes the only
Underwriter Provided Information, and you on behalf of the
10.
<PAGE> 11
respective Underwriters represent and warrant to the Company that the
Underwriter Provided Information is true and correct in all material respects.
5. DELIVERY OF AND PAYMENT FOR THE STOCK.
(a) Delivery of certificates for the shares of the Underwritten
Stock and the Option Stock (if the option granted by Section 3(c) hereof shall
have been exercised not later than 7:00 a.m., San Francisco time, on the date
two business days preceding the Closing Date), and payment therefor, shall be
made at the office of Cooley Godward LLP, One Freedom Square, 11951 Freedom
Drive, Reston, Virginia 20190, at 7:00 a.m., San Francisco time, on the fourth
business day after the date of this Agreement, or at such time on such other
day, not later than seven full business days after such fourth business day, as
shall be agreed upon in writing by the Company and you. The date and hour of
such delivery and payment (which may be postponed as provided in Section 3(b)
hereof) are herein called the "CLOSING DATE".
(b) If the option granted by Section 3(c) hereof shall be exercised
after 7:00 a.m., San Francisco time, on the date two business days preceding
the Closing Date, delivery of certificates for the shares of Option Stock, and
payment therefor, shall be made at the office of Cooley Godward LLP, One
Freedom Square, 11951 Freedom Drive, Reston, Virginia 20190, at 7:00 a.m., San
Francisco time, on the third business day after the exercise of such option.
(c) Payment for the Stock purchased from the Company shall be made
to the Company or its order by one or more certified or official bank check or
checks in same day funds. Such payment shall be made upon delivery of
certificates for the Stock to you for the respective accounts of the several
Underwriters against receipt therefor signed by you. Certificates for the Stock
to be delivered to you shall be registered in such name or names and shall be
in such denominations as you may request at least one business day before the
Closing Date, in the case of Underwritten Stock, and at least one business day
prior to the purchase thereof, in the case of the Option Stock. Such
certificates will be made available to the Underwriters for inspection,
checking and packaging at the offices of Lewco Securities Corporation, 2
Broadway, New York, New York 10004 on the business day prior to the Closing
Date or, in the case of the Option Stock, by 12:00 p.m., San Francisco time, on
the business day preceding the date of purchase.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
for shares to be purchased by any Underwriter whose check shall not have been
received by you on the Closing Date or any later date on which Option Stock is
purchased for the account of such Underwriter. Any such payment by you shall
not relieve such Underwriter from any of its obligations hereunder.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company covenants and agrees as
follows:
(a) The Company will (i) prepare and timely file with the Commission
under Rule 424(b) a Prospectus containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A
and (ii) not file any amendment to the Registration Statement or supplement to
the Prospectus of which you shall not previously have been advised and
furnished with a copy or to which you shall have reasonably objected in
11.
<PAGE> 12
writing or which is not in compliance with the Securities Act or the rules and
regulations of the Commission.
(b) The Company will promptly notify each Underwriter in the event
of (i) the request by the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any additional
information, (ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement, (iii) the institution or
notice of intended institution of any action or proceeding for that purpose,
(iv) the receipt by the Company of any notification with respect to the
suspension of the qualification of the Stock for sale in any jurisdiction, or
(v) the receipt by it of notice of the initiation or threatening of any
proceeding for such purpose. The Company will make every reasonable effort to
prevent the issuance of such a stop order and, if such an order shall at any
time be issued, to obtain the withdrawal thereof at the earliest possible
moment.
(c) The Company will (i) on or before the Closing Date, deliver to
you a signed copy of the Registration Statement and of its registration
statement as originally filed and of each amendment thereto filed prior to the
time the Registration Statement becomes effective and, promptly upon the filing
thereof, a signed copy of each post-effective amendment, if any, to the
Registration Statement (together with, in each case, all exhibits thereto
unless previously furnished to you) and will also deliver to you, for
distribution to the Underwriters, a sufficient number of additional conformed
copies of each of the foregoing (but without exhibits) so that one copy of each
may be distributed to each Underwriter, (ii) as promptly as possible deliver to
you and send to the several Underwriters, at such office or offices as you may
designate, as many copies of the Prospectus as you may reasonably request, and
(iii) thereafter from time to time during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer, likewise send to
the Underwriters as many additional copies of the Prospectus and as many copies
of any supplement to the Prospectus and of any amended prospectus, filed by the
Company with the Commission, as you may reasonably request for the purposes
contemplated by the Securities Act.
(d) If at any time during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer, any event relating
to or affecting the Company, or of which the Company shall be advised in
writing by you, shall occur as a result of which it is necessary, in the
opinion of counsel for the Company or of counsel for the Underwriters, to
supplement or amend the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser of the Stock, the Company will forthwith prepare and
file with the Commission a supplement to the Prospectus or an amended
prospectus so that the Prospectus as so supplemented or amended will not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances existing at the time such Prospectus is delivered to such
purchaser, not misleading. If, after the initial public offering of the Stock
by the Underwriters and during such period, the Underwriters shall propose to
vary the terms of offering thereof by reason of changes in general market
conditions or otherwise, you will advise the Company in writing of the proposed
variation, and, if in the opinion either of counsel for the Company or of
counsel for the Underwriters such proposed variation requires that the
Prospectus be supplemented or amended, the Company will forthwith prepare and
file with the Commission a supplement to the Prospectus or an amended
prospectus setting forth such variation. The
12.
<PAGE> 13
Company authorizes the Underwriters and all dealers to whom any of the Stock
may be sold by the several Underwriters to use the Prospectus, as from time to
time amended or supplemented, in connection with the sale of the Stock in
accordance with the applicable provisions of the Securities Act and the
applicable rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company
will submit to you, for your information, a copy of any post-effective
amendment to the Registration Statement and any supplement to the Prospectus or
any amended prospectus proposed to be filed.
(f) The Company will cooperate, when and as requested by you, in the
qualification of the Stock for offer and sale under the securities or blue sky
laws of such jurisdictions as you may designate and, during the period in which
a prospectus is required by law to be delivered by an Underwriter or dealer, in
keeping such qualifications in good standing under said securities or blue sky
laws; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified. The Company will, from time
to time, prepare and file such statements, reports, and other documents as are
or may be required to continue such qualifications in effect for so long a
period as you may reasonably request for distribution of the Stock.
(g) During a period of five years commencing with the date hereof,
the Company will furnish to you, and to each Underwriter who may so request in
writing, copies of all periodic and special reports furnished to stockholders
of the Company and of all information, documents and reports filed with the
Commission.
(h) Not later than the 45th day following the end of the fiscal
quarter first occurring after the first anniversary of the Effective Date, the
Company will make generally available to its security holders an earnings
statement in accordance with Section 11(a) of the Securities Act and Rule 158
thereunder.
(i) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Underwriting Agreement, including all
costs and expenses incident to (i) the preparation, printing and filing with
the Commission and the National Association of Securities Dealers, Inc. of the
Registration Statement, any Preliminary Prospectus and the Prospectus, (ii) the
furnishing to the Underwriters of copies of any Preliminary Prospectus and of
the several documents required by paragraph (c) of this Section 6 to be so
furnished, (iii) the printing of this Underwriting Agreement and related
documents delivered to the Underwriters, (iv) the preparation, printing and
filing of all supplements and amendments to the Prospectus referred to in
paragraph (d) of this Section 6, (v) the furnishing to you and the Underwriters
of the reports and information referred to in paragraph (g) of this Section 6
and (vi) the printing and issuance of stock certificates, including the
transfer agent's fees.
(j) The Company agrees to reimburse you, for the account of the
several Underwriters, for fees and related disbursements (including counsel
fees and disbursements and cost of printing memoranda for the Underwriters)
paid by or for the account of the Underwriters or their counsel in qualifying
the Stock under state securities or blue sky laws and facilitating or effecting
the review of the offering by the NASD (Corporate Financing Department review).
13.
<PAGE> 14
(k) The Company hereby agrees that, without the prior written
consent of Chase Securities Inc. on behalf of the Underwriters, the Company
will not, for a period of 180 days following the commencement of the public
offering of the Stock by the Underwriters, directly or indirectly, (i) sell,
offer, contract to sell, make any short sale, pledge, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of any
shares of Common Stock or any securities convertible into or exchangeable or
exercisable for or any rights to purchase or acquire Common Stock or (ii) enter
into any swap or other agreement that transfers, in whole or in part, any of
the economic consequences or ownership of Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Stock to be sold to the Underwriters
pursuant to this Agreement, (B) shares of Common Stock issued by the Company
(x) in connection with acquisitions, (y) upon the exercise of options granted
under the stock option plans of the Company (the "OPTION PLANS"), (z) upon the
conversion of convertible debt or the exercise of warrants outstanding as of
the date hereof or the issuance of Common Stock pursuant to pre-existing
anti-dilution rights, all as described in the Registration Statement and the
Prospectus, and (C) options to purchase Common Stock granted or sales of Common
Stock made under the Option Plans.
(l) If at any time during the 25-day period after the Registration
Statement becomes effective any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your opinion the
market price for the Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after written
notice from you advising the Company to the effect set forth above, forthwith
prepare, consult with you concerning the substance of, and disseminate a press
release or other public statement, reasonably satisfactory to you, responding
to or commenting on such rumor, publication or event.
(m) The Company is familiar with the Investment Company Act of 1940,
as amended, and has in the past conducted its affairs, and will in the future
conduct its affairs (including following the receipt and application of
proceeds from the sale of stock consistent with the Registration Statement and
the Prospectus), in such a manner to ensure that the Company was not and will
not be an "INVESTMENT COMPANY" or a company "CONTROLLED" by an "INVESTMENT
COMPANY" within the meaning of the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder.
(n) In connection with the Directed Share Program, the Underwriters
will notify the Company in writing as to which Participants will need to be
restricted under the rules of the NASD from sale, transfer, assignment, pledge
or hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. The Company will direct the
transfer agent to place stop transfer restrictions upon such Participants'
Directed Shares for such period of time.
(o) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share Program and
stamp duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share
14.
<PAGE> 15
Program. Furthermore, the Company covenants with the Underwriters that the
Company will comply with all applicable securities and other applicable laws,
rules and regulations in each foreign jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person (including each partner or officer thereof) who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which such indemnified parties or
any of them may become subject under the Securities Act, the Exchange Act, or
the common law or otherwise, and the Company agrees to reimburse each such
Underwriter and controlling person for any legal or other expenses (including,
except as otherwise hereinafter provided, reasonable fees and disbursements of
counsel) incurred by the respective indemnified parties in connection with
defending against any such losses, claims, damages or liabilities or in
connection with any investigation or inquiry of, or other proceeding which may
be brought against, the respective indemnified parties, in each case arising
out of or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (including the Prospectus
as part thereof and any Rule 462(b) registration statement) or any
post-effective amendment thereto (including any Rule 462(b) registration
statement), or 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, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus or the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment thereof or supplement thereto) or the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that (1) the indemnity agreements of
the Company contained in this paragraph (a) shall not apply to the Underwriter
Provided Information, it being understood that the only information
constituting Underwriter Provided Information shall be that which is specified
in Section 4(b) hereof, and (2) the indemnity agreement contained in this
paragraph (a) with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages, liabilities or expenses purchased the Stock which is the
subject thereof (or to the benefit of any person controlling such Underwriter)
if at or prior to the written confirmation of the sale of such Stock a copy of
the Prospectus (or the Prospectus as amended or supplemented) was not sent or
delivered to such person and the untrue statement or omission of a material
fact contained in such Preliminary Prospectus was corrected in the Prospectus
(or the Prospectus as amended or supplemented) unless the failure is the result
of noncompliance by the Company with paragraph (c) of Section 6 hereof. The
indemnity agreements of the Company contained in this paragraph (a) and the
representations and warranties of the Company contained in Section 2 hereof
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any indemnified party and shall survive
the delivery of and payment for the Stock.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities
15.
<PAGE> 16
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase, or (iii) related to, arising out of,
or in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence
of any such Underwriter.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, each of its officers and directors who signs the
Registration Statement on his own behalf or pursuant to a power of attorney,
each other Underwriter and each person (including each partner or officer
thereof) who controls the Company or any such other Underwriter within the
meaning of Section 15 of the Securities Act, from and against any and all
losses, claims, damages or liabilities, joint or several, to which such
indemnified parties or any of them may become subject under the Securities Act,
the Exchange Act, or the common law or otherwise and to reimburse each of them
for any legal or other expenses (including, except as otherwise hereinafter
provided, reasonable fees and disbursements of counsel) incurred by the
respective indemnified parties in connection with defending against any such
losses, claims, damages or liabilities or in connection with any investigation
or inquiry of, or other proceeding which may be brought against, the respective
indemnified parties, in each case, subject to the proviso below, arising out of
or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (including the Prospectus
as part thereof and any Rule 462(b) registration statement) or any
post-effective amendment thereto (including any Rule 462(b) registration
statement) or 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 or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (as amended or as supplemented if the
Company shall have filed with the Commission any amendment thereof or
supplement thereto) or the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided in
each case to the extent, but only to the extent such untrue statement or
omission referred to in clause (i) or (ii) above was made in reliance upon and
in conformity with the Underwriter Provided Information, it being understood
that the only information constituting Underwriter Provided Information shall
be that which is specified in Section 4(b) hereof. The indemnity agreement of
each Underwriter contained in this paragraph (b) shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any indemnified party and shall survive the delivery of and payment for the
Stock.
(c) Each party indemnified under the provision of paragraphs (a) and
(b) of this Section 7 agrees that, upon the service of a summons or other
initial legal process upon it in any action or suit instituted against it or
upon its receipt of written notification of the commencement of any
investigation or inquiry of, or proceeding against, it in respect of which
indemnity may be
16.
<PAGE> 17
sought on account of any indemnity agreement contained in such paragraphs, it
will promptly give written notice (the "NOTICE") of such service or
notification to the party or parties from whom indemnification may be sought
hereunder. No indemnification provided for in such paragraphs shall be
available to any party who shall fail so to give the Notice if 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 the Notice, but the omission so to notify
such indemnifying party or parties of any such service or notification shall
not relieve such indemnifying party or parties from any liability which it or
they may have to the indemnified party for contribution or otherwise than on
account of such indemnity agreement. Any indemnifying party shall be entitled
at its own expense to participate in the defense of any action, suit or
proceeding against, or investigation or inquiry of, an indemnified party. Any
indemnifying party shall be entitled, if it so elects within a reasonable time
after receipt of the Notice by giving written notice (the "NOTICE OF DEFENSE")
to the indemnified party, to assume (alone or in conjunction with any other
indemnifying party or parties) the entire defense of such action, suit,
investigation, inquiry or proceeding, in which event such defense shall be
conducted, at the expense of the indemnifying party or parties, by counsel
chosen by such indemnifying party or parties and reasonably satisfactory to the
indemnified party or parties; provided, however, that (i) if the indemnified
party or parties reasonably determine that there may be a conflict between the
positions of the indemnifying party or parties and of the indemnified party or
parties in conducting the defense of such action, suit, investigation, inquiry
or proceeding or that there may be legal defenses available to such indemnified
party or parties different from or in addition to those available to the
indemnifying party or parties, then counsel for the indemnified party or
parties shall be entitled to conduct the defense to the extent reasonably
determined by such counsel to be necessary to protect the interests of the
indemnified party or parties and (ii) in any event, the indemnified party or
parties shall be entitled to have counsel chosen by such indemnified party or
parties participate in, but not conduct, the defense. If, within a reasonable
time after receipt of the Notice, an indemnifying party gives a Notice of
Defense and the counsel chosen by the indemnifying party or parties is
reasonably satisfactory to the indemnified party or parties, the indemnifying
party or parties will not be liable under paragraphs (a) through (c) of this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party or parties in connection with the defense of the action,
suit, investigation, inquiry or proceeding, except that (A) the indemnifying
party or parties shall bear the legal and other expenses incurred in connection
with the conduct of the defense as referred to in clause (i) of the proviso to
the preceding sentence and (B) the indemnifying party or parties shall bear
such other expenses as it or they have authorized to be incurred by the
indemnified party or parties. If, within a reasonable time after receipt of the
Notice, no Notice of Defense has been given, the indemnifying party or parties
shall be responsible for any legal or other expenses incurred by the
indemnified party or parties in connection with the defense of the action,
suit, investigation, inquiry or proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 7, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in paragraph (a) or (b) of this Section 7 (i) in such
proportion as is appropriate to reflect the relative benefits received by each
indemnifying party from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
17.
<PAGE> 18
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of each
indemnifying party in connection with the statements or omissions that 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 Underwriters shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Stock
received by the Company and the total underwriting discount received by the
Underwriters, as set forth in the table on the cover page of the Prospectus,
bear to the aggregate public offering price of the Stock. 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 each indemnifying
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this
paragraph (d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities, or actions in respect thereof, referred
to in the first sentence of this paragraph (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigation, preparing to defend or defending against any
action or claim which is the subject of this paragraph (d). Notwithstanding the
provisions of this paragraph (d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount applicable to the
Stock purchased by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this paragraph
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought, it will promptly give
written notice of such service to the party or parties from whom contribution
may be sought, but the omission so to notify such party or parties of any such
service shall not relieve the party from whom contribution may be sought from
any obligation it may have hereunder or otherwise (except as specifically
provided in paragraph (c) of this Section 7).
(e) The Company will not, without the prior written consent of each
Underwriter, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not such Underwriter or any
person who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act is a party to such claim,
action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of such Underwriter and each such controlling
person from all liability arising out of such claim, action, suit or
proceeding.
18.
<PAGE> 19
8. TERMINATION. This Agreement may be terminated by you at any time prior
to the Closing Date by giving written notice to the Company if after the date
of this Agreement, trading in the Common Stock shall have been suspended or if
there shall have occurred (i) the engagement in hostilities or an escalation of
major hostilities by the United States or the declaration of war or a national
emergency by the United States on or after the date hereof, (ii) any outbreak
of hostilities or other national or international calamity or crisis or change
in economic or political conditions if the effect of such outbreak, calamity,
crisis or change in economic or political conditions in the financial markets
of the United States would, in the Underwriters' reasonable judgment, make the
offering or delivery of the Stock impracticable, (iii) suspension of trading in
securities generally or a material adverse decline in value of securities
generally on the New York Stock Exchange, the American Stock Exchange, The
Nasdaq Stock Market, or the setting of minimum prices for trading or
limitations on prices (other than limitations on hours or numbers of days of
trading) for securities on either such exchange or system, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of, or commencement of any proceeding or
investigation by, any court, legislative body, agency or other governmental
authority which in the Underwriters' reasonable opinion materially and
adversely affects or will materially or adversely affect the Business or the
operations of the Company, (v) declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in the Underwriters' reasonable opinion has a material
adverse effect on the securities markets in the United States. If this
Agreement shall be terminated pursuant to this Section 8, there shall be no
liability of the Company to the Underwriters and no liability of the
Underwriters to the Company; provided, however, that in the event of any such
termination the Company agrees to indemnify and hold harmless the Underwriters
from all costs or expenses incident to the performance of the obligations of
the Company under this Agreement, including all costs and expenses referred to
in paragraphs (i), (j), (n) and (o) of Section 6 hereof.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the several
Underwriters to purchase and pay for the Stock shall be subject to the
performance by the Company of all its obligations to be performed hereunder at
or prior to the Closing Date or any later date on which Option Stock is to be
purchased, as the case may be, and to the following further conditions:
(a) If not effective prior to the execution and delivery of this
Underwriting Agreement, the Registration Statement shall have become effective
not later than 7:00 p.m., San Francisco time, on the date of this Underwriting
Agreement or such later date as shall have been consented to by the
Underwriters; and no stop order suspending the effectiveness thereof shall have
been issued and no proceedings therefor shall be pending or threatened by the
Commission.
(b) The legality and sufficiency of the sale of the Stock hereunder
and the validity and form of the certificates representing the Stock, all
corporate proceedings and other legal matters incident to the foregoing, and
the form of the Registration Statement and of the Prospectus (except as to the
financial statements contained therein), shall have been approved at or prior
to the Closing Date by Cooley Godward LLP, counsel for the Underwriters.
(c) You shall have received from each of Fulbright & Jaworski
L.L.P., counsel for the Company, and from the Vice President, General Counsel
and Corporate Secretary of the
19.
<PAGE> 20
Company, an opinion, addressed to the Underwriters and dated the Closing Date,
covering the matters set forth in Annex A hereto, and if Option Stock is
purchased at any date after the Closing Date, additional opinions from each
such counsel, addressed to the Underwriters and dated such later date,
confirming that the statements expressed as of the Closing Date in such
opinions remain valid as of such later date.
(d) You shall be satisfied that (i) as of the Effective Date, the
statements made in the Registration Statement and the Prospectus were true and
correct and neither the Registration Statement nor the Prospectus omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein, respectively, not misleading, (ii) since the
Effective Date, no event has occurred which should have been set forth in a
supplement or amendment to the Prospectus which has not been set forth in such
a supplement or amendment, (iii) since the respective dates as of which
information is given in the Registration Statement in the form in which it
originally became effective and the Prospectus contained therein, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the Business or the assets, management,
general affairs, properties, stockholders' equity, financial condition or
results of operations of the Company, whether or not arising from transactions
in the ordinary course of business, and, since such dates, except in the
ordinary course of business, the Company has not entered into any material
transaction not referred to in the Registration Statement in the form in which
it originally became effective and the Prospectus contained therein, (iv) the
Company does not have any material contingent obligations which are not
disclosed in the Registration Statement and the Prospectus, (v) there are not
any pending or known threatened legal proceedings to which the Company is a
party or of which property of the Company is the subject which are material and
which are not disclosed in the Registration Statement and the Prospectus, (vi)
there are not any franchises, contracts, Intellectual Property agreements or
arrangements, leases or other documents which are required to be filed as
exhibits to the Registration Statement which have not been filed as required,
(vii) the representations and warranties of the Company herein are true and
correct as of the Closing Date or any later date on which Option Stock is to be
purchased, as the case may be, and (viii) there has not been any material
change in the market for securities in general or in political, financial or
economic conditions from those reasonably foreseeable as to render it
impracticable in your reasonable judgment to make a public offering of the
Stock, or a material adverse change in market levels for securities in general
(or those of companies in particular) or financial or economic conditions which
render it inadvisable to proceed.
(e) You shall have received on the Closing Date and on any later
date on which Option Stock is purchased a certificate, dated the Closing Date
or such later date, as the case may be, and signed by the President and Chief
Executive Officer and the Chief Financial Officer of the Company, stating that
(i) the respective signers of said certificate have carefully examined the
Registration Statement in the form in which it originally became effective and
the Prospectus contained therein and any supplements or amendments thereto, and
that the statements included in clauses (i) through (vii) of paragraph (d) of
this Section 9 are true and correct and (ii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date.
(f) You shall have received from Ernst & Young LLP, a letter or
letters, addressed to the Underwriters and dated the Closing Date and any later
date on which Option Stock is
20.
<PAGE> 21
purchased, confirming that they are independent public accountants with respect
to the Company within the meaning of the Securities Act and the applicable
published rules and regulations thereunder and based upon the procedures
described in their letter delivered to you concurrently with the execution of
this Agreement covering the matters set forth in Annex B hereto (the "ORIGINAL
LETTER"), but carried out to a date not more than three business days prior to
the Closing Date or such later date on which Option Stock is purchased (i)
confirming, to the extent true, that the statements and conclusions set forth
in the Original Letter are accurate as of the Closing Date or such later date,
as the case may be, and (ii) setting forth any revisions and additions to the
statements and conclusions set forth in the Original Letter which are necessary
to reflect any changes in the facts described in the Original Letter since the
date of the Original Letter or to reflect the availability of more recent
financial statements, data or information. The letters shall not disclose any
change, or any development involving a prospective change, in or affecting the
Business or the assets, management, general affairs, properties, stockholders'
equity, financial condition or results of operations of the Company which, in
your sole judgment, makes it impractical or inadvisable to proceed with the
public offering of the Stock or the purchase of the Option Stock as
contemplated by the Prospectus.
(g) You shall have been furnished evidence in usual written or
telegraphic form from the appropriate authorities of the several jurisdictions,
or other evidence satisfactory to you, of the qualification referred to in
paragraph (f) of Section 6 hereof.
(h) Prior to the Closing Date, the Stock to be issued and sold by
the Company shall have been duly authorized for quotation on the Nasdaq
National Market upon official notice of issuance.
(i) On or prior to the Closing Date, you shall have received
executed copies of the Lock-Up Agreements.
All the agreements, opinions, certificates and letters mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if Cooley Godward LLP, counsel for the Underwriters,
shall be satisfied that they comply in form and scope.
In case any of the conditions specified in this Section 9 shall not be
fulfilled, this Agreement may be terminated by you by giving notice to the
Company. Any such termination shall be without liability of the Company to the
Underwriters and without liability of the Underwriters to the Company;
provided, however, that (i) in the event of such termination, the Company
agrees to indemnify and hold harmless the Underwriters from all costs or
expenses incident to the performance of the obligations of the Company under
this Agreement, including all costs and expenses referred to in paragraphs (i),
(j), (n) and (o) of Section 6 hereof, and (ii) if this Agreement is terminated
by you because of any refusal, inability or failure on the part of the Company
to perform any agreement herein, to fulfill any of the conditions herein, or to
comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the transactions contemplated hereby.
21.
<PAGE> 22
10. CONDITIONS OF THE OBLIGATION OF THE COMPANY. The obligation of the
Company to deliver the Stock shall be subject to the conditions that (a) the
Registration Statement shall have become effective and (b) no stop order
suspending the effectiveness thereof shall be in effect and no proceedings
therefor shall be pending or threatened by the Commission.
In case either of the conditions specified in this Section 10 shall not
be fulfilled, this Agreement may be terminated by the Company by giving notice
to you. Any such termination shall be without liability of the Company to the
Underwriters and without liability of the Underwriters to the Company;
provided, however, that in the event of any such termination the Company agrees
to indemnify and hold harmless the Underwriters from all costs or expenses
incident to the performance of the obligations of the Company under this
Agreement, including all costs and expenses referred to in paragraphs (i), (j),
(n) and (o) of Section 6 hereof.
11. REIMBURSEMENT OF CERTAIN EXPENSES. In addition to its other obligations
under Section 7 of this Agreement, the Company hereby agrees to reimburse on a
quarterly basis the Underwriters for all reasonable legal and other expenses
incurred in connection with investigating or defending any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in
paragraph (a) of Section 7 of this Agreement, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the
obligations under this Section 11 and the possibility that such payments might
later be held to be improper; provided, however, that (i) to the extent any
such payment is ultimately held to be improper, the persons receiving such
payments shall promptly refund them and (ii) such persons shall provide to the
Company, upon request, reasonable assurances of their ability to effect any
refund, when and if due.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of the Company and the several Underwriters and, with respect to
the provisions of Section 7 hereof, the several parties (in addition to the
Company and the several Underwriters) indemnified under the provisions of said
Section 7, and their respective personal representatives, successors and
assigns. Nothing in this Agreement is intended or shall be construed to give to
any other person, firm or corporation any legal or equitable remedy or claim
under or in respect of this Agreement or any provision herein contained. The
term "SUCCESSORS AND ASSIGNS" as herein used shall not include any purchaser,
as such purchaser, of any of the Stock from any of the several Underwriters.
13. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters,
shall be mailed, telegraphed or delivered to Chase Securities Inc., One Bush
Street, San Francisco, California 94104; and if to the Company, shall be
mailed, telegraphed or delivered to it at its office, Yellowbrix, Inc., 66
Canal Center Plaza, Suite 70, Alexandria, Virginia 22314, Attention: David C.
Hoppmann, President and CEO. All notices given by telegraph shall be promptly
confirmed by letter.
14. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or their respective directors or officers, and (c) delivery and
payment for
22.
<PAGE> 23
the Stock under this Agreement; provided, however, that if this Agreement is
terminated prior to the Closing Date, the provisions of paragraphs (k) and (l)
of Section 6 hereof shall be of no further force or effect.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California.
23.
<PAGE> 24
Please sign and return to the Company the enclosed duplicates of this
letter, whereupon this letter will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
YELLOWBRIX, INC.
By:
-----------------------------
David C. Hoppmann, President
and Chief Executive Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CHASE SECURITIES INC.
DAIN RAUSCHER INCORPORATED
WIT SOUNDVIEW CORPORATION
By: Chase Securities Inc.
By:
--------------------------
Managing Director
Acting on behalf of the several
Underwriters, including themselves,
named in Schedule I hereto.
24.
<PAGE> 25
SCHEDULE I
UNDERWRITERS
NUMBER OF SHARES
UNDERWRITER TO BE PURCHASED
Chase Securities Inc. ..............................
Dain Rauscher Incorporated..........................
Wit SoundView Corporation...........................
.................................... _____
25.
<PAGE> 26
ANNEX A
MATTERS TO BE COVERED IN THE OPINION OF FULBRIGHT & JAWORSKI L.L.P.,
COUNSEL FOR THE COMPANY
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation with the power and authority to own its assets and
properties and conduct its Business; the Company is duly qualified as a foreign
corporation and in good standing in each state of the United States of America
in which its ownership or leasing of property requires such qualification
(except where the failure to be so qualified would not have a material adverse
effect on the Business or the assets, management, general affairs, properties,
stockholders' equity, financial condition or results of operations of the
Company, and has full corporate power and authority to own or lease its
properties and conduct its Business.
(ii) Immediately prior to the Closing Date, the authorized
capital stock of the Company consists of _____ shares of Common Stock, $0.001
par value per share, of which there are outstanding ______ shares, and ______
shares of Preferred Stock, $0.001 par value per share, of which there are
outstanding _____ shares. Upon the consummation of the transactions
contemplated by the Registration Statement, including without limitation the
sale of the Stock and the conversion of the Preferred Stock in accordance its
terms, there will be outstanding _____ shares of Common Stock, $0.001 par value
per share (including the Underwritten Stock plus the number of shares of Option
Stock, if any, issued on the date hereof) and no shares of Preferred Stock,
$0.001 par value per share. The Underwritten Stock delivered on the Clsoing
Date and all other outstanding shares of capital stock of the Company have been
duly and validly issued, are fully paid and nonassessable and conform to the
description thereof contained in the Registration Statement and the Prospectus;
any Option Stock purchased after the Closing Date, when issued and delivered to
and paid for by the Underwriters as provided in the Underwriting Agreement,
will have been duly and validly issued, fully paid and nonassessable and
conform to the description thereof contained in the Registration Statement and
the Prospectus; no preemptive rights of, or rights of refusal in favor of,
stockholders exist with respect to the Stock, or the issue and sale thereof,
pursuant to statutory law or the Certificate of Incorporation or Bylaws of the
Company; to the knowledge of such counsel, there are no contractual preemptive
rights that have not been waived, rights of first refusal or rights of co-sale
which exist with respect to the issue and sale of the Stock; and the grant of
all outstanding options and the issuance of all outstanding warrants have been
duly authorized and validly issued.
(iii) All holders of securities of the Company having rights
to the registration of shares of Common Stock, or other securities, because of
the filing of the Registration Statement by the Company have waived such rights
or such rights have expired by reason of lapse of time following notification
of the Company's intent to file the Registration Statement. There are no
contracts, agreements or
26.
<PAGE> 27
understandings between the Company and any person granting such person the
right to require the Company with respect to any securities of the Company
owned or to be owned by such person to require the Company to include such
securities in the securities registered pursuant to the Registration Statement.
Except as set forth in the Registration Statement and Prospectus, there are no
contracts, agreements, or understandings known to such counsel between the
Company and any person granting to such person the right to require the Company
to file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person pursuant to any
other registration statement filed by the Company under the Securities Act. The
Company is not and, after giving effect to the offering and sale of the stock
and the application of the proceeds thereof as described in the Registration
Statement and Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940. Except as disclosed in the Registration
Statement and the Prospectus, no Person is entitled to be issued capital stock
pursuant to anti-dilution, performance or similar rights.
(iv) The Registration Statement has become effective under
the Securities Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or suspending or
preventing the use of the Prospectus is in effect and no proceedings for that
purpose have been instituted or are pending or contemplated by the Commission.
The Registration Statement and the Prospectus (except as to the financial
statements and schedules and other financial data contained therein, as to
which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and with the rules and
regulations of the Commission thereunder. The offer and sale of the Company's
Series B Preferred Stock was consummated pursuant to exemptions from
registration pursuant to the Securities Act (the "PRIVATE OFFERING"), and the
Private Offering is not subject to integration under the Securities Act with
the registration under the Securities Act of the offering of Common Stock
pursuant to the Underwriting Agreement. The Form 8-A Registration Statement
complied as to form in all material respects with the requirements of the
Exchange Act; the Form 8-A Registration Statement has become effective under
the Exchange Act.
(v) The information required to be set forth in the
Registration Statement in answer to Items 9, 10 (insofar as it relates to such
counsel) and 11(c) of Form S-1 is to the best of such counsel's knowledge
accurately and adequately set forth therein in all material respects or no
response is required with respect to such Items, and, to the best of such
counsel's knowledge, the description of the Company's stock option plans and
the options granted and which may be granted thereunder and the options and
warrants granted otherwise than under such plans set forth in the Prospectus
accurately and fairly presents the information required to be shown with
respect to said plans and options to the extent required by the Securities Act
and the rules and regulations of the Commission thereunder. Except for the
matters covered by paragraph (vi) below, the descriptions and statements in the
Registration Statement and the Prospectus, insofar as such descriptions and
statements summarize the status of litigation or other proceedings or the
provisions of agreements, documents, orders, judgments or decrees, or
constitute statements or summaries of law, descriptions of statutes, rules or
regulations or conclusions of law, constitute accurate summaries thereof in all
material respects. Such counsel does not know of any franchises, licenses,
Intellectual Property agreements or arrangements, contracts, leases, documents,
laws or regulations, or legal proceedings, pending, proposed or threatened,
which in the opinion of such counsel are of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement, which are not described and filed as
required.
27.
<PAGE> 28
(vi) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending relating to any material patent
rights, trade secrets, trademarks, service marks or other proprietary
information or materials of the Company's Business, and to the best of such
counsel's knowledge no such proceedings are threatened or contemplated by
governmental authorities or others; such counsel does not know of any contracts
or other documents, relating to governmental regulation affecting the Company's
Business or the Company's patent rights, trade secrets, trademarks, service
marks or other proprietary information or materials, of a character required to
be filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus that are not filed or
described as required; to the best of such counsel's knowledge, the Company is
not infringing or otherwise violating any patents, trade secrets, trademarks,
service marks or other proprietary information or materials, of others, and to
the best of such counsel's knowledge there are no infringements by others of
any of the Company's patents, trade secrets, trademarks, service marks or other
propriety information or materials which in the judgment of such counsel could
affect materially the use thereof by the Company; and to the best of such
counsel's knowledge, the Company owns or possesses sufficient licenses or other
rights to use all patents, trade secrets, trademarks, service marks or other
propriety information or materials necessary to conduct the Business.
(vii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(viii) The issue and sale by the Company of the shares of Stock
sold by the Company as contemplated by the Underwriting Agreement will not
conflict with, or result in a breach of, the Certificate of Incorporation or
Bylaws of the Company or any agreement or instrument to which the Company is a
party or any applicable law or regulation, or so far as is known to such
counsel, any order, writ, injunction or decree, of any jurisdiction, court or
governmental instrumentality, and the Company has full power and authority to
authorize, issue and sell the stock as contemplated by the Underwriting
Agreement.
(ix) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation of the
transactions contemplated in the Underwriting Agreement, except such as have
been obtained under the Securities Act and such as may be required under state
securities or blue sky laws in connection with the purchase and distribution of
the Stock by the Underwriters. The Stock issued and sold by the Company will be
duly authorized for quotation on the Nasdaq National Market upon official
notice of issuance.
------------------------------------
Counsel rendering the foregoing opinion may rely as to questions
of law not involving the laws of the United States or of the State of Delaware,
upon opinions of local counsel satisfactory in form and scope to counsel for
the Underwriters. Copies of any opinions so relied upon shall be delivered to
the Underwriters and to counsel for the Underwriters and the foregoing opinion
shall also state that counsel knows of no reason the Underwriters are not
entitled to rely upon the opinions of such local counsel.
28.
<PAGE> 29
In addition to the matters set forth above, counsel rendering
the foregoing opinion shall also include a statement to the effect that nothing
has come to the attention of such counsel that leads them to believe that the
Registration Statement (except as to the financial statements and schedules and
other financial and statistical data contained or incorporated by reference
therein, as to which such counsel need not express any opinion or belief) at
the Effective Date 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 not misleading, that the Prospectus (except as to the
financial statements and schedules and other financial and statistical data
contained or incorporated by reference therein, as to which such counsel need
not express any opinion or belief) as of its date or at the Closing Date (or
any later date on which Option Stock is purchased), contained or contains any
untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
MATTERS TO BE COVERED BY THE OPINION OF THE VICE PRESIDENT, GENERAL
COUNSEL AND CORPORATE SECRETARY OF THE COMPANY
Nothing has come to the attention of counsel that leads him to
believe that the Registration Statement (except as to the financial statements
and schedules and other financial and statistical data contained or
incorporated by reference therein, as to which such counsel need not express
any opinion or belief) at the Effective Date 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 not misleading, that the
Prospectus (except as to the financial statements and schedules and other
financial and statistical data contained or incorporated by reference therein,
as to which such counsel need not express any opinion or belief) as of its date
or at the Closing Date (or any later date on which Option Stock is purchased),
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
29.
