<PAGE> 1
EXHIBIT 1.01
[_],000,000
TALARIAN CORPORATION
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
UNDERWRITING AGREEMENT
June __, 2000
LEHMAN BROTHERS INC.
SG COWEN SECURITIES CORP.
WIT SOUNDVIEW CORPORATION
FIDELITY CAPITAL MARKETS, a division of
National Financial Services Corporation
As Representatives of the several
Underwriters named in Schedule 1,
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Talarian Corporation, a Delaware corporation (including its
predecessor in interest, Talarian Corporation, a California corporation, the
"Company"), proposes to sell _________ shares (the "Firm Stock") of the
Company's common stock, par value $0.0001 per share (the "Common Stock"). In
addition, the Company proposes to grant to the Underwriters named in Schedule 1
hereto (the "Underwriters") an option to purchase up to an additional _______
shares of the Common Stock on the terms and for the purposes set forth in
Section (the "Option Stock"). The Firm Stock and the Option Stock, if purchased,
are hereinafter collectively called the "Stock." This is to confirm the
agreement concerning the purchase of the Stock from the Company by the
Underwriters.
I. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 and amendments thereto with
respect to the Stock have (i) been prepared by the Company in conformity with
the requirements of the Securities Act of 1933 (the "Securities Act") and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission")
<PAGE> 2
thereunder, (ii) been filed with the Commission under the Securities Act and
(iii) become effective under the Securities Act; and a second registration
statement on Form S-1 with respect to the Stock (i) may also be prepared by the
Company in conformity with the requirements of the Securities Act and the Rules
and Regulations and (ii) if so prepared, will be filed with the Commission under
the Securities Act pursuant to Rule 462(b) of the Rules and Regulations on the
date hereof. Copies of the first such registration statement and the amendments
to such registration statement, together with the form of any such second
registration statement, have been delivered by the Company to you as the
representatives (the "Representatives") of the Underwriters. As used in this
Agreement, "Effective Time" means (i) with respect to the first such
registration statement, the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission and (ii) with respect to any second
registration statement, the date and time as of which such second registration
statement is filed with the Commission, and "Effective Times" is the collective
reference to both Effective Times; "Effective Date" means (i) with respect to
the first such registration statement, the date of the Effective Time of such
registration statement and (ii) with respect to any second registration
statement, the date of the Effective Time of such second registration statement,
and "Effective Dates" is the collective reference to both Effective Dates;
"Preliminary Prospectus" means each prospectus included in any such registration
statement, or amendments thereof, before it became effective under the
Securities Act and any prospectus filed with the Commission by the Company with
the consent of the Representatives pursuant to Rule 424(a) of the Rules and
Regulations; "Primary Registration Statement" means the first registration
statement referred to in this Section 1(a), as amended at its Effective Time,
"Rule 462(b) Registration Statement" means the second registration statement, if
any, referred to in this Section 1(a), as filed with the Commission, and
"Registration Statements" means both the Primary Registration Statement and any
Rule 462(b) Registration Statement, including in each case all information
contained in the final prospectus filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations in accordance with Section hereof and deemed
to be a part of the Registration Statements as of the Effective Time of the
Primary Registration Statement pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Rules and Regulations. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus.
(a) The Primary Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any further amendments or
supplements to the Registration Statements or the Prospectus, when they become
effective or are filed with the Commission, as the case may be, will conform) in
all material respects to the requirements of the Securities Act and the Rules
and Regulations and do not and will not, as of the applicable Effective Date (as
to the Registration Statements and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or supplement
thereto) contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided that no representation or warranty is made as
to information contained in or omitted from the Registration Statements or the
Prospectus in reliance upon and in conformity with written
<PAGE> 3
information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein.
(a) The Company and each of its subsidiaries (as defined in Section)
have been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the business, financial condition or results of operations of the Company and
its subsidiaries taken as a whole, and have all power and authority necessary to
own or hold their respective properties and to conduct the businesses in which
they are engaged; and none of the subsidiaries of the Company is a "significant
subsidiary", as such term is defined in Rule 405 of the Rules and Regulations.
The subsidiaries of the Company listed in Exhibit 21 to the Registration
Statement constitute all of the subsidiaries of the Company required to be
listed therein.
(a) The Company had on the stated date an authorized and outstanding
actual and pro forma capitalization as set forth under the caption
"Capitalization" in the Prospectus and has on the date hereof an authorized and
outstanding capitalization as set forth in the "Pro forma as Adjusted" column of
the capitalization table under the caption "Capitalization" in the Prospectus;
and all of the issued shares of capital stock of the Company were on the stated
date set forth under the caption "Capitalization" in the Prospectus and are as
of the date hereof duly and validly authorized and issued, fully paid and
non-assessable, and conform in all material respects to the description thereof
contained in the Prospectus; and all of the issued shares of capital stock of
each subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(a) The shares of the Stock to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and non-assessable; and the Stock will conform in
all material respects to the descriptions thereof contained in the Prospectus;
except as described in the Prospectus, there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or options to purchase
from the Company and its subsidiaries, or obligations of the Company and its
subsidiaries to issue, any class of capital stock of the Company or any of its
subsidiaries; and except as described in the Prospectus, there are no
restrictions on transfer or voting of any capital stock of the Company pursuant
to the Company's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") or any agreement to which the Company is a party
or by which it may be bound or to which any of its property or assets may be
subject.
(a) The Company has full right, power and authority to enter into and
perform this Agreement and to consummate the transactions contemplated hereby
and this Agreement has been duly authorized, executed and delivered by the
Company.
<PAGE> 4
(a) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby and the
migratory merger to Delaware described in the Prospectus (such actions are
herein collectively called the "Merger") did not, do not and will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the properties or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any violation of the
provisions of the Articles of Incorporation of the Company or the charter or
by-laws or similar organizational documents of any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets; and except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Securities Exchange Act of 1934
(the "Exchange Act") and applicable state securities laws, or from the National
Association of Securities Dealers (the "NASD") in connection with the purchase
and distribution of the Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or governmental body is required for the execution, delivery
and performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby and the Merger.
(a) Each of the conditions to the closing of the transactions
contemplated by (i) the Agreement and Plan of Merger, dated March 7, 2000 (the
"WhiteBarn Agreement"), between the Company and WhiteBarn, Inc., an Illinois
corporation ("WhiteBarn") and (ii) the Asset Purchase Agreement, dated as of
September 30, 1999 (the "GlobalCast Agreement"), between the Company and
GlobalCast Communications, Inc., a California corporation ("GlobalCast") has
been satisfied or waived, the respective closings under the WhiteBarn Agreement
and the GlobalCast Agreement have been consummated in accordance with the
respective terms of such agreements, and the merger of WhiteBarn with and into
the Company pursuant to the WhiteBarn Agreement has been duly consummated in
accordance with the laws of California and Illinois.
(a) Except as described in the Registration Statement, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right (other than rights which have been waived or
satisfied) 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 or to require the Company to include such securities in the
securities registered pursuant to the Registration Statements or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
(a) Except as described in the Registration Statement, the Company
has not sold or issued any shares of Common Stock or securities convertible into
or exchangeable for, shares of Common Stock during the six-month period
preceding the date of the
<PAGE> 5
Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or
S of, the Securities Act.
(a) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since such date, there
has not been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus.
(a) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statements or included
in the Prospectus present fairly the financial condition and results of
operations of the Company, WhiteBarn and GlobalCast, at the dates and for the
periods indicated, and have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The summary consolidated financial data and selected
consolidated financial data included in the Prospectus present fairly the
financial information shown therein and have been accurately extracted or
derived from the audited financial statements of the Company, WhiteBarn and
GlobalCast. The pro forma consolidated financial information included in the
Prospectus (i) is presented fairly in all material respects, (ii) has been
prepared in accordance with the Rules and Regulations with respect to pro forma
financial statements and (iii) has been properly compiled on the bases described
therein, and the assumptions used in the preparation of the pro forma
consolidated financial information included in the Prospectus are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
(a) KPMG, LLP, which has certified certain financial statements of
the Company, WhiteBarn and GlobalCast, the report of which appears in the
Prospectus and which has delivered the initial letter referred to in Section
7(f) hereof, are independent public accountants as required by the Securities
Act and the Rules and Regulations.
(a) The Company and each of its subsidiaries do not own any real
property and have good title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries; and all real
property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries.
<PAGE> 6
(a) The Company and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is reasonably adequate
for the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries.
(a) The Company and each of its subsidiaries hold all licenses,
certificates and permits from governmental authorities which are necessary to
the conduct of their businesses, except where the failure to have such licenses,
certificates or permits, either singly or in the aggregate, would not have a
material adverse effect on the business or financial condition of the Company.
(a) Except as described in the Registration Statement, the Company
and its subsidiaries each own or possess adequate rights to use all patents,
patent rights, trademarks, trade names, service marks, service names,
copyrights, licenses, license rights, technology, know-how (including trade
secrets and other unpatented and unpatentable proprietary or confidential
information, systems or procedures) and other intellectual property rights
("Intellectual Property") reasonably necessary to carry on the business of the
Company and the subsidiaries and have no reason to believe that the conduct of
their respective businesses will conflict with, and have not received notice of
any claim of conflict with, any Intellectual Property rights of others or
contractual obligations binding on the Company or any of its subsidiaries or any
of its officers, directors or employees. There are no outstanding options,
licenses or agreements of any kind relating to the Intellectual Property of the
Company or any subsidiary that are required to be described in the Prospectus
and are not described in all material respects. Neither the Company nor any of
its subsidiaries is a party to or bound by any options, licenses or agreements
with respect to the Intellectual Property of any other person or entity that are
required to be set forth in the Prospectus and are not described in all material
respects. Except as specifically disclosed in the Prospectus, the Company knows
of no infringement by others of Intellectual Property owned by or licensed to
the Company.
(a) The Company and each of its subsidiaries are conducting business
in compliance with all applicable laws, rules and regulations of the
jurisdictions in which they are conducting business, except where failure to be
so in compliance would not materially adversely affect the consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries taken as a whole.
(a) Neither the Company nor, to the Company's knowledge, any of its
affiliates has taken or may take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
shares of Common Stock to facilitate the sale or resale of the shares of Common
Stock. The Company acknowledges that the Underwriters may engage in passive
market making transactions in the shares of Common Stock on the NASDAQ National
Market System in accordance with Regulation M under the Exchange Act.
(a) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or
<PAGE> 7
of which any property or asset of the Company or any of its subsidiaries is
the subject which would reasonably be expected to have a material adverse effect
on the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries; and to
the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(a) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to either of the
Registration Statements by the Securities Act or by the Rules and Regulations
which have not been described in the Prospectus or filed as exhibits to either
of the Registration Statements as permitted by the Rules and Regulations.
(a) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company on the other hand, which is required to be described in
the Prospectus which is not so described.
(a) No labor disturbance by the employees of the Company exists or,
to the knowledge of the Company, is imminent which would reasonably be expected
to have a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, or business of the Company and its
subsidiaries taken as a whole.
(a) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any material liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and,
to the Company's knowledge, nothing has occurred, whether by action or by
failure to act, which would reasonably be expected to cause the loss of such
qualification.
(a) Each of the Company and its subsidiaries has filed all federal,
state and local income and franchise tax returns, reports and other information
required to be filed through the date hereof and has paid all taxes due thereon,
except where such tax is being contested in good faith, and no tax deficiency
has been determined adversely to the Company or any of its subsidiaries which
has had (nor does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries, might have) a
material adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries; and no tax deficiency has been determined adversely to the Company
or any of its subsidiaries which has had (nor does the
<PAGE> 8
Company have any knowledge of any tax deficiency which, if determined adversely
to the Company or any of its subsidiaries, could reasonably be expected to have)
a material adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries taken as a whole.
(i) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not issued or granted any securities other than
securities issued pursuant to options, warrants or convertible securities
outstanding on such date, incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred in the
ordinary course of business, entered into any transaction not in the ordinary
course of business or declared or paid any dividend on its capital stock.
(A) The Company makes and keeps accurate books and records and
maintains internal accounting controls which provide reasonable assurance that
transactions are executed in accordance with management's authorization,
transactions are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, access to its assets
is permitted only in accordance with management's authorization and the reported
accountability for its assets is compared with existing assets at reasonable
intervals.
(a) Neither the Company nor any of its subsidiaries, nor, to the
knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its subsidiaries,
has used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision of
the United States Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(i) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws or other similar governing documents, is in default in
any material respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court decree to which it or
its properties or assets is subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its properties or assets or to the conduct
of its business, except, in the case of clause (ii) and (iii) such violation or
default as does not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries taken as a
whole.
<PAGE> 9
(a) Neither the Company nor any subsidiary is an "investment company"
within the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder.
(a) Neither the Company nor any of its subsidiaries has (i) violated
any material environmental statute, rule, regulation, order, judgment, decree or
permit in any jurisdiction in which the Company or such subsidiary conducts any
business or owns or holds any properties or assets or (ii) received actual
notice of any actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substance or wastes, pollutants
or contaminants, except where such violation or liability could not reasonably
be expected to have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or prospects of
the Company and its subsidiaries taken as a whole.
(a) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations or
products of the Company or its subsidiaries have been or will be affected by the
Year 2000 Problem. As a result of such review, the Company has no reason to
believe, and does not believe, that the Year 2000 problem has had or will have a
material adverse effect on the financial position, shareholders' equity or
results of operations of the Company and its subsidiaries taken as a whole or
result in any material loss or interference with the Company's business or
operations. The "Year 2000 Problem" as used herein means any significant risk
that computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or electrical systems of
any kind will not, in the case of dates or time periods occurring after December
31, 1999, function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000.
(a) There are no material acquisitions of businesses or assets by the
Company or any of its subsidiaries pending, contemplated or currently being
negotiated.
(a) None of the Company, any subsidiary of the Company or any
director or officer of the Company or of any subsidiary of the Company is (i) a
director, officer, or partner of any brokerage firm, broker or dealer that is a
member of the NASD; and each such member, an "NASD member") or (ii) directly or
indirectly, a "person associated with" a NASD member or an "affiliate" of a NASD
member, as such terms are used in the NASD by-laws or rules.
(a) There are no outstanding loans, advances (except normal advances
for business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company or any of its subsidiaries to or for the benefit of
any of the officers or directors of the Company or any of the members of any of
them, except as disclosed in the Prospectus.
(a) The shares of Common Stock have been approved for quotation on
the NASDAQ National Market System, subject to official notice of issuance.
<PAGE> 10
(a) The Company has not distributed and will not distribute prior to
the later of (i) the Delivery Date, or any date on which shares of Option Stock
are to be purchased, as the case may be, and (ii) completion of the distribution
of the Shares, any offering material in connection with the offering and sale of
the Shares other than any preliminary prospectuses, the Prospectus, the
Registration Statement and other materials, if any, permitted by the Act.
(a) All offers and sales of the securities of the Company by the
Company prior to the date hereof were made in compliance with the Securities Act
and all other applicable state and federal laws or regulations.
1 Purchase of the Shares of Common Stock by the Underwriters. On
the basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell _______
shares of the Firm Stock to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares
of the Firm Stock set opposite that Underwriter's name in Schedule 1 hereto.
In addition, the Company grants to the Underwriters an option to
purchase up to _______ shares of Option Stock. Such option is granted solely for
the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set opposite the names of such Underwriters in
Schedule 1 hereto. The respective purchase obligations of each Underwriter with
respect to the Option Stock shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Stock other than in 100 share
amounts.
The price of both the Firm Stock and any Option Stock shall be
$_____ per share.
The Company shall not be obligated to deliver any of the Stock to
be delivered on the First Delivery Date or the Second Delivery Date (as
hereinafter defined), as the case may be, except upon payment for all the Stock
to be purchased on such Delivery Date as provided herein.
1 Offering of Shares by the Underwriters.
Upon authorization by the Representatives of the release of the
Firm Stock, the several Underwriters propose to offer the Firm Stock for sale
upon the terms and conditions set forth in the Prospectus; provided, however,
that no Stock registered pursuant to the Rule 462(b) Registration Statement, if
any, shall be offered prior to the Effective Time thereof.
1 Delivery of and Payment for the Shares. Delivery of and payment
for the Firm Stock shall be made in New York, New York with a concurrent closing
at the offices of Simpson Thacher & Bartlett at 3373 Hillview, Suite 250, Palo
Alto, California at 10:00 A.M., New York time, on [________], 2000, the fourth
full business day following the date of this Agreement, or at such other date or
place as shall be determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the "First Delivery
Date." On the First Delivery Date, the Company shall deliver or cause to be
delivered
<PAGE> 11
certificates representing the Firm Stock to the Representatives for the account
of each Underwriter against payment to or upon the order of the Company of the
purchase price by wire or certified or official bank check or checks payable in
immediately available funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Firm Stock
shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Stock, the Company shall make the
certificates representing the Firm Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York time,
on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section may be exercised by written notice being
given to the Company by the Representatives. Such notice shall set forth the
aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Representatives, when the shares of Option
Stock are to be delivered; provided, however, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as the "Second Delivery Date" and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York time, on the Second
Delivery Date. On the Second Delivery Date, the Company shall deliver or cause
to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire or certified or official
bank check or checks payable in immediately available funds. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Stock shall be registered in such names and
in such denominations as the Representatives shall request in the aforesaid
written notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Stock, the Company shall make the certificates
representing the Option Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York time, on the business day
prior to the Second Delivery Date.
1 Further Agreements of the Company. The Company agrees:
(a) To prepare the Rule 462(b) Registration Statement, if necessary,
in a form approved by the Representatives and to file such Rule 462(b)
Registration Statement
<PAGE> 12
with the Commission on the date hereof; to prepare the Prospectus in a form
approved by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than 10:00 A.M., New York time, on the
day following the execution and delivery of this Agreement; to make no further
amendment or any supplement to the Registration Statements or to the Prospectus
except as permitted herein; to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to either Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification of the
Stock for offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statements or the Prospectus
or for additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(a) To furnish promptly to each of the Representatives a conformed
copy and to counsel for the Underwriters a signed copy of each of the
Registration Statements as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents and exhibits
filed therewith;
(i) To deliver promptly to the Representatives in New York City such
number of the following documents as the Representatives shall reasonably
request: conformed copies of the Registration Statements as originally filed
with the Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement and each Preliminary Prospectus, the Prospectus (not
later than 6:00 P.M., New York time, of the day following the execution and
delivery of this Agreement) and any amended or supplemented Prospectus (not
later than 6:00 P.M., New York time, on the day following the date of such
amendment or supplement); and, if the delivery of a prospectus is required at
any time prior to the expiration of nine months after the Effective Time of the
Primary Registration Statement in connection with the offering or sale of the
Stock (or any other securities relating thereto) and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include 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 when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Representatives and, upon their request,
to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales of any
of the Shares at any time nine months or more after the Effective Time of the
Primary Registration Statement, upon the request of the Representatives but at
the expense of such Underwriter, to prepare and deliver to such Underwriter as
many copies as the
<PAGE> 13
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Securities Act;
(a) To file promptly with the Commission any amendment to the
Registration Statements or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(i) Prior to filing with the Commission any amendment to either of
the Registration Statements or any supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters and obtain the
consent of the Representatives to the filing;
(a) As soon as practicable after the Effective Date of the Primary
Registration Statement (it being understood that the Company shall have until at
least 410 days after the end of the Company's current fiscal quarter), to make
generally available to the Company's security holders and to deliver to the
Representatives an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule 158);
(a) For a period of five years following the Effective Date of the
Primary Registration Statement, to furnish to the Representatives at their
request copies of all materials furnished by the Company to its shareholders and
all public reports and all reports and financial statements furnished by the
Company to the principal national securities exchange or automatic quotation
system upon which the Common Stock may be listed or quoted pursuant to
requirements of or agreements with such exchange or system or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(a) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for offering and
sale under the securities laws of such domestic jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Shares; provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(a) (i) For a period of 180 days from the date of the Prospectus, not to,
directly or indirectly, (a) offer for sale, sell or contract to sell, pledge or
otherwise dispose of, or announce an offering of (or enter into any transaction
or device which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the future of) any shares
of Common Stock or other equity securities of the Company or any securities
convertible into or exchangeable for any shares of Common Stock or other equity
securities, or sell or grant options, rights or warrants with respect to any
shares of Common Stock or equity securities of the Company or any securities
convertible into or exchangeable for
<PAGE> 14
any shares of Common Stock or other equity securities (other than (i) options or
shares issued pursuant to the share option and stock purchase plans described in
the Prospectus and (ii) shares issued pursuant to currently outstanding options,
warrants or rights, in each case as in effect on the date hereof, provided that
the recipient of shares pursuant to clause (i) or (ii) has executed a lock-up
agreement referred to below or such options are not exercisable in whole or in
part prior to the 180th day after the date of the Prospectus, (iii) upon prior
written notice to Lehman Brothers, shares, not exceeding 20% of the outstanding
Common Stock of the Company, issued in connection with acquisitions in which
none of such shares are required to be registered under the Securities Act prior
to the 180th day after the date of the prospectus, provided that each recipient
of any such shares has executed with respect to such shares a lock-up agreement
referred to below) or (b) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of any shares of Common Stock or other equity securities,
whether any such transaction described in clause (a) or (b) above is to be
settled by delivery of shares of Common Stock or other equity securities in cash
or otherwise, in each case without the prior written consent of Lehman Brothers
on behalf of the Underwriters and (ii) to cause each director, executive
officer, employee holding options or warrants and shareholder of the Company to
furnish to the Representatives, prior to the First Delivery Date, a "lock-up"
letter (each, a "Lock-up Letter"), substantially in the form of Exhibit A
hereto;
(a) Prior to the Effective Date, to apply for the listing of the
Shares on the Nasdaq National Market System and to use its best efforts to
complete that listing, subject only to official notice of issuance and evidence
of satisfactory distribution, prior to the First Delivery Date;
(a) To apply the net proceeds from the sale of the Stock being sold
by the Company as set forth in the Prospectus;
(a) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" within the
meaning of such term under the Investment Company Act of 1940 and the rules and
regulations of the Commission thereunder;
(a) Between the date hereof and the First Delivery Date (both dates
inclusive), to notify and consult with the Representatives, and to cause its
subsidiaries and all other parties acting on its or their behalf to notify and
consult with the Representatives, prior to issuing any press release or other
announcement which could be material in the context of the distribution of the
Shares;
(a) In connection with the Directed Share Program, to ensure that the
Directed Shares shall be restricted to the extent required by the NASD or
pursuant to the rules of the NASD from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the Effective Dates and
also to direct the transfer agent to place stop transfer restrictions upon the
Directed Shares for such period of time; and
<PAGE> 15
(a) To comply with all applicable laws and regulations in each
non-U.S. jurisdiction in which the Directed Shares are offered or sold.
(a). Expenses. The Company agrees to pay the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statements and any amendments and
exhibits thereto; the costs of distributing the Registration Statements as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; the costs of reproducing and distributing this Agreement; the
costs, if any, of distributing the terms of agreement relating to the
organization of the underwriting syndicate and selling group to the members
thereof by mail, telex or other means of communication; the filing fees incident
to securing any required review by the National Association of Securities
Dealers, Inc. of the terms of sale of the Stock; any applicable listing or other
fees (including any fees incurred in listing the Stock on the NASDAQ National
Market System); the fees and expenses of qualifying the Stock under the
securities laws of the several jurisdictions as provided in Section and of
preparing, printing and distributing a Blue Sky Memorandum (including related
reasonable fees and expenses of counsel to the Underwriters); all costs and
expenses of the Underwriters, including the fees and disbursements of counsel
for the Underwriters, incident to the offer and sale of shares of the Stock by
the Underwriters to officers, directors, employees and consultants of the
Company and their family members and to other persons having business
relationships with the Company and its subsidiaries, as described in Section ;
and all other costs and expenses incident to the performance of the obligations
of the Company under this Agreement; provided that, except as provided in this
Section 6 and in Sections 8 and , the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Stock which they may sell and the expenses of advertising any offering of
the Stock made by the Underwriters.
1 Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in accordance with
Section ; no stop order suspending the effectiveness of either of the
Registration Statements or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in either of the Registration Statements or the Prospectus or
otherwise shall have been complied with.
(a) No Underwriter shall have discovered and disclosed to the Company
on or prior to such Delivery Date that either of the Registration Statements or
the
<PAGE> 16
Prospectus or any amendment or supplement thereto contains any untrue statement
of a fact which, in the reasonable opinion of Simpson Thacher & Bartlett,
counsel for the Underwriters, is material or omits to state any fact which, in
the reasonable opinion of such counsel, is material and is required to be stated
therein or is necessary to made the statements therein not misleading.
(a) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Stock, the Registration
Statements and the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby and the Merger shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(a) Fenwick & West LLP shall have furnished to the Representatives
its written opinion, as counsel to the Company, addressed to the Underwriters
and dated such Delivery Date, in form and substance reasonably satisfactory to
the Representatives, substantially to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware, is duly qualified to
do business and are in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on its business, financial
condition or results of operations, and has all power and authority necessary to
own or hold its properties and conduct the business described in the Prospectus;
(i) The Company had on the stated date an authorized actual and pro
forma capitalization as set forth under the caption "Capitalization" in the
Prospectus and has an authorized capitalization as set forth in the "Pro forma
as Adjusted" column of the capitalization table under the caption
"Capitalization" in the Prospectus; and all of the issued shares of capital
stock of the Company were on the stated date set forth under the caption
"Capitalization" in the Prospectus and are as of the date hereof duly and
validly authorized and issued, fully paid and non-assessable, and conform in all
material respects to the description thereof contained in the Prospectus; (ii)
The shares of the Stock to be issued and sold by the Company to the Underwriters
hereunder have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable;
(i) The Company has all requisite corporate power and corporate
authority to issue, sell and deliver the Stock in accordance with and upon the
terms and conditions set forth in this Agreement; the filing of the Registration
Statement and the Prospectus with the Commission has been duly authorized by and
on behalf of the Company; the Registration Statement has been duly executed; and
no further approval or authority of the shareholders or the Board of Directors
of the Company is required for the issuance of the Stock;
<PAGE> 17
(i) The statements made in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute summaries
of the terms of the Company's Common Stock (including the Stock), constitute
accurate summaries of such Common Stock in all material respects;
(i) Except as described in or contemplated by the Prospectus, there
are no preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the Stock pursuant to
the Company's charter or by-laws or, to such counsel's knowledge, any agreement
or other instrument and, to such counsel's knowledge, no holder of any
securities of the Company or any other person has any right under the Company's
charter, contractually, or otherwise, which right has not been satisfied or
effectively waived, to cause the Company to sell or otherwise issue to them or
to permit them to underwrite the sale of any shares of capital stock of the
Company;
(i) Except as described in or contemplated by the Prospectus, to the
knowledge of such counsel, there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the right to purchase any shares
of capital stock of the Company and there are no outstanding or authorized
options, warrants or rights of any character obligating the Company to issue any
shares of its capital stock or any securities convertible or exchangeable into
or evidencing the right to purchase or subscribe for any such shares;
(i) All real property and buildings held under lease by the Company
is held by it under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company;
(i) To such counsel's knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which the
Company is a party or of which any property or asset of the Company is the
subject which are required to be disclosed therein; and, to such counsel's
knowledge, no such proceedings are overtly threatened or contemplated by
governmental authorities or overtly threatened by others;
(i) (i)Based solely upon oral advice of the Commission's staff, the
Primary Registration Statement was declared effective under the Securities Act
as of the date and time specified in such opinion, (ii) the Rule 462(b)
Registration Statement, if any, was filed with the Commission on the date
specified therein, (iii) the Prospectus was filed with the Commission pursuant
to the subparagraph of Rule 424(b) of the Rules and Regulations specified in
such opinion on the date specified therein and, (iv) to the knowledge of such
counsel, no stop order suspending the effectiveness of either of the
Registration Statements has been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(i) The Registration Statements, as of their respective Effective
Dates, and the Prospectus, as of its date, and any further amendments or
supplements
<PAGE> 18
thereto, as of their respective dates, made by the Company prior to such
Delivery Date (other than the financial statements and related notes and
schedules and other financial data contained therein, as to which such counsel
need express no opinion) complied as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations;
(i) The statements made in the Prospectus under the caption
"Management," "Business--Strategic Relationships", "Business--Intellectual
Property and Other Proprietary Rights," "Related Party Transactions" and "Shares
Eligible for Future Sale" insofar as they purport to constitute summaries of the
terms of statutes, rules and regulations thereunder or contracts and other
documents constitute accurate summaries of the terms of such statutes, rules and
regulations, contracts and other documents.
(i) To such counsel's knowledge, there are no contracts or other
documents which are required to be described in the Prospectus or filed as
exhibits to the Registration Statements by the Securities Act or by the Rules
and Regulations which have not been described or filed as exhibits to the
Registration Statements;
(i) This Agreement has been duly authorized, executed and delivered
by the Company;
(i) The issue and sale of the shares of Stock being delivered on such
Delivery Date by the Company and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
contemplated hereby (other than the performance by the Company of its
obligations under the indemnification and contribution provisions hereof) and
pursuant to the Merger did not, do not and will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument filed as an exhibit to the Registration Statement,
except as would not have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or prospects of
the Company and its subsidiaries taken as a whole, nor will such actions result
in any violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties or
assets; and, except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state securities laws or
from the NASD in connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or governmental body is
required for the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby and
pursuant to the Merger;
(i) The Company is not, and will not become, as a result of the
consummation of the transactions contemplated by this Agreement, and application
of the net proceeds
<PAGE> 19
therefrom as described in the Prospectus, required to register as an investment
company under the Investment Company Act of 1940;
(i) To such counsel's knowledge, there are no contracts, agreements
or understandings between the Company and any person granting such person (a)
except as described in the Prospectus, 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 or (b) the right, other than
rights which have been waived or satisfied, to require the Company to include
such securities in the securities registered pursuant to the Registration
Statements or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act;
(i) to the knowledge of such counsel, neither the Company nor any of
its subsidiaries has received any notice of infringement of or conflict with
asserted rights of any third party with respect to any patents, patent
applications, trademarks, service marks, trade names, licenses, copyrights,
technology and proprietary or other confidential information currently employed
by them in connection with their respective businesses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
reasonably be expected to result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Company and its subsidiaries taken as a whole.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America and the laws of the State of California;
and (ii) rely (to the extent such counsel deems proper and
specifies in its opinion), as to matters involving the
application of the laws of other states upon the opinion of other
counsel of good standing, provided that such other counsel is
satisfactory to counsel for the Underwriters and furnishes a copy
of its opinion to the Representatives. Such counsel shall also
have furnished to the Representatives a written statement,
addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the
Representatives, to the effect that (x) such counsel has acted as
counsel to the Company on a regular basis, has acted as counsel
to the Company in connection with previous financing transactions
and has acted as counsel to the Company in connection with the
preparation of the Registration Statements, and (y) based on the
foregoing, no facts have come to the attention of such counsel
which lead it to believe that the Registration Statements, as of
their respective Effective Dates, contained any untrue statement
of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus contains any
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances
under which they were made, not misleading. The foregoing opinion
and statement may be qualified by a statement to the effect that
such counsel does not assume any responsibility for the accuracy,
completeness or
<PAGE> 20
fairness of the statements contained in the Registration
Statements or the Prospectus except to the extent set forth in
paragraphs (v) and (xii) above.
(a) The Representatives shall have received from Simpson Thacher &
Bartlett, counsel for the Underwriters, such opinion or opinions, dated such
Delivery Date, with respect to the issuance and sale of the shares of Stock, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(a) At the time of execution of this Agreement, the Representatives
shall have received from KPMG, LLP, a letter, in form and substance reasonably
satisfactory to the Representatives, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(a) With respect to the letter of KPMG, LLP, referred to in the
preceding paragraph and delivered to the Representatives concurrently with the
execution of this Agreement (as used in this paragraph, the "initial letter"),
the Company shall have furnished to the Representatives a letter (as used in
this paragraph, the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of the date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than
five days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(a) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating, on behalf
of the Company, that:
(i) The representations, warranties and agreements of the Company in
Section 1 are true and correct in all material respects as of such Delivery
Date; the Company has complied with all its agreements contained herein in all
material respects; and the conditions set forth in Section 7(a) have been
fulfilled;
<PAGE> 21
(i) (A) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus or (B) since such date there has not
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations or prospects of the Company and
its subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus; and
(i) They have carefully examined the Registration Statements and the
Prospectus and, in their opinion (A) the Registration Statements, as of their
respective Effective Dates, and the Prospectus, as of each of the Effective
Dates, did not include any untrue statement of a material fact and did not omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and (B) since the Effective Date of the
Primary Registration Statement, no event has occurred which should have been set
forth in a supplement or amendment to either of the Registration Statements or
the Prospectus.
(i) To their knowledge, no stop order suspending the effectiveness of
either of the Registration Statements or any part thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission.
(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus or since such date there shall not have
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or in the Nasdaq
National Market, or trading in any securities of the Company on any exchange or
in the over-the-counter market, shall have been suspended or minimum prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, a banking moratorium shall have been declared by
Federal or state
<PAGE> 22
authorities, the United States shall have become engaged in hostilities, there
shall have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by the United
States or there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as to
make it, in the judgment of a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public offering or delivery of
the Stock being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(a) The NASDAQ National Market System shall have approved the Stock
for inclusion, subject only to official notice of issuance and evidence of
satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
1 Indemnification and Contribution.
(i) The Company shall indemnify and hold harmless each Underwriter,
its officers and employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which that Underwriter, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus, or in any amendment or supplement
thereto or (B) in any materials or information provided to investors by, or with
the approval of, the Company in connection with the marketing of the offering of
the Shares, including any roadshow or investor presentation made to investors by
the Company (whether in person or electronically ) ("Roadshow Materials"), the
omission or alleged omission to state in any Preliminary Prospectus, either of
the Registration Statements or the Prospectus, or in any amendment or supplement
thereto, or in any Roadshow Materials any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act, or any alleged act or failure to act, by any Underwriter
in connection with, or relating in any manner to, the Stock or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company shall not be
liable in the case of any matter covered by this clause (iii) to the extent that
it is determined in a final judgement by a court of competent jurisdiction that
such loss, claim, damage, liability or action resulted directly from any such
act or failure to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or wilful misconduct), and shall reimburse each
Underwriter and each such officer, employee and controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or
<PAGE> 23
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statements or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with the written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein and described in Section ; and
provided further that as to any Preliminary Prospectus this indemnity agreement
shall not inure to the benefit of any Underwriter, its officers or employees or
any person controlling that Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of Stock to any person by that
Underwriter if that Underwriter failed to send or give a copy of the Prospectus,
as the same may be amended or supplemented, to that person within the time
required by the Securities Act, and the untrue statement or alleged untrue
statement of any material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus was corrected in the Prospectus,
unless such failure resulted from non-compliance by the Company with Section .
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(i) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors and
each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, either of
the Registration Statements or the Prospectus, or in any amendment or supplement
thereto, the omission or alleged omission to state in any Preliminary
Prospectus, either of the Registration Statements or the Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the written information furnished to the Company
through the Representatives by or on behalf of that Underwriter specifically for
inclusion therein and described in Section , and shall reimburse the Company and
any such director, officer, employee or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the Company or any
such director, officer, employee or controlling person.
(a) Promptly after receipt by an indemnified party under this Section
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim
<PAGE> 24
in respect thereof is to be made against the indemnifying party under this
Section , notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have
under this Section except to the extent it has been materially prejudiced by
such failure and, provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section . If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ one counsel (and any
necessary local counsel) to represent jointly the Representatives and those
other Underwriters and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Underwriters against the Company under this
Section if, in the reasonable judgment of the Representatives, it is advisable
for the Representatives and those Underwriters, officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the reasonable fees and expenses of such separate counsel shall be paid by
the Company, any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in writing
by the Representatives, if the indemnified parties under this Section consist of
any Underwriter or any of their respective officers, employees or controlling
persons, or by the Company, if the indemnified parties under this Section
consist of the Company or any of the Company's directors, officers, employees or
controlling persons. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld or delayed), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or
<PAGE> 25
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld or delayed),
but if settled with its written consent or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss of liability by
reason of such settlement or judgment.
(i) If the indemnification provided for in this Section shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section or in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, in such proportion as shall
be appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Stock or if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock purchased
under this Agreement (before deducting expenses) received by the Company, on the
one hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the Stock purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the shares of
the Stock under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 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 herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
shall be deemed to include, for purposes of this Section , any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section , no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
<PAGE> 26
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 to contribute as
provided in this Section are several in proportion to their respective
underwriting obligations and not joint.
(a) The Underwriters severally confirm that the statements with
respect to the public offering of the Stock set forth on the cover page of, and
under the caption "Underwriting" in, the Prospectus are correct and constitute
the only information furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statements and the
Prospectus.
1. Directed Share Program.
It is understood that approximately [_________] shares of the
Firm Stock ("Directed Shares") will initially be reserved by the Underwriters
for offer and sale to officers, directors, employees and consultants of the
Company and their family members and to other persons having business
relationships with the Company and its subsidiaries ("Directed Share
Participants") upon the terms and conditions set forth in the Prospectus and in
accordance with the rules and regulations of the National Association of
Securities Dealers, Inc. Under no circumstances will Lehman Brothers Inc. or any
Underwriter be liable to the Company or to any Directed Share Participant for
any action taken or omitted to be taken in good faith in connection with such
Directed Share Program. To the extent that any Directed Shares are not
affirmatively confirmed for purchase by any Directed Share Participant on or
immediately after the date of this Agreement, such Directed Shares may be
offered to the public upon the terms and conditions set forth in the Prospectus.
The Company agrees to pay all fees and disbursements incurred by
the Underwriters in connection with the Directed Share Program, including
counsel fees and any stamp duties or other taxes incurred by the Underwriters in
connection with the Directed Share Program.
In connection with the offer and sale of the Directed Shares, the
Company agrees, promptly upon a request in writing, to indemnify and hold
harmless Lehman Brothers Inc. and the other Underwriters from and against any
loss, claim, damage, expense, liability or action which (i) arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material fact
contained in any material prepared by or with the approval of the Company for
distribution to Directed Share Participants in connection with the Directed
Share Program or 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) arises out of the failure of any Directed Share Program
participant to pay for and accept delivery of Directed Shares that the
Participant agreed to purchase or (iii) is otherwise related to the Directed
Share Program, other than losses, claims, damages or liabilities (or expenses
relating thereto) that are finally judicially determined to have resulted
directly from the bad faith or gross negligence of Lehman Brothers Inc.
<PAGE> 27
1 Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Stock which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of shares of the Firm Stock set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of shares of the Firm Stock set opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Stock on such Delivery Date if the total number
of shares of the Stock which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the total number of shares
of the Stock to be purchased on such Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of shares of the Stock which it agreed to purchase on such Delivery
Date pursuant to the terms of Section . If the foregoing maximums are exceeded,
the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the shares of the Stock to be purchased on such Delivery Date.
If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of the Company to sell, the Option Stock)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections and . As used in this
Agreement, the term "Underwriter" includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1 hereto
who, pursuant to this Section 10, purchases Firm Stock which a defaulting
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Stock of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the First Delivery Date for up to seven full business days in order
to effect any changes that in the opinion of counsel for the Company or counsel
for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
1 Termination.
The obligations of the Underwriters hereunder may be terminated
by the Representatives by notice given to and received by the Company prior to
delivery of and payment for the Firm Stock if, prior to that time, any of the
events described in Sections 7(i) or 7(j) shall have occurred or if the
Underwriters shall decline to purchase the Shares for any reason permitted under
this Agreement.
<PAGE> 28
(a) Reimbursement of Underwriters' Expenses. If the Company shall
fail to tender the Stock for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition to the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled or the Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement (including the termination of this
Agreement pursuant to Section 11), the Company shall reimburse the Underwriters
for the reasonable fees and expenses of their counsel and for such other
out-of-pocket expenses as shall have been incurred by them in connection with
this Agreement and the proposed purchase of the Stock, and upon demand the
Company shall pay the full amount thereof to the Representatives. If this
Agreement is terminated pursuant to Section 11 by reason of the default of one
or more Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses.
1 Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to:
LEHMAN BROTHERS INC.
Three World Financial Center
New York, New York 10285
Attention: Syndicate Department
Fax: 212-528-8822
(a) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Primary
Registration Statement, Attention: Michael A. Morgan (Fax: _________), with a
copy to Barry J. Kramer, Esq., Fenwick & West LLP, Two Palo Alto Square, Palo
Alto California, 94306;
provided, however, that any notice to an Underwriter pursuant to Section shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by Lehman Brothers Inc. on behalf of the
Representatives.
(A) Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the officers and
employees of each Underwriter and the person or persons, if any, who control
each
<PAGE> 29
Underwriter within the meaning of Section 15 of the Securities Act and the
indemnity agreement of the Underwriters contained in Section of this Agreement
shall be deemed to be for the benefit of directors, officers and employees of
the Company and any person controlling the Company within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Section, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
1 Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Stock and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
(a) Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, "business day" means any day on which the NASDAQ
National Market is open for trading and "subsidiary" has the meaning set forth
in Rule 405 of the Rules and Regulations.
1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
1 Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
1 Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
<PAGE> 30
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
TALARIAN CORPORATION
By:
------------------------------------------
Name: Paul Larson
Title: Chief Executive Officer
Accepted:
LEHMAN BROTHERS INC.
SG COWEN SECURITIES CORP.
WIT SOUNDVIEW CORPORATION
FIDELITY CAPITAL MARKETS, a division of
National Financial Services Corporation
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: LEHMAN BROTHERS INC.
By:
---------------------------------
Authorized Representative
<PAGE> 31
SCHEDULE 1
<TABLE>
<CAPTION>
Number of
Underwriters Shares
<S> <C>
Lehman Brothers Inc.
SG Cowen Securities Corp.
Wit Soundview Corporation
Fidelity Capital Markets, a division of
National Financial Services Corporation
---------
Total......................................................
</TABLE>
