<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 4, 1999
REGISTRATION NO. 333-77389
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
INTRANET SOLUTIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
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<CAPTION>
MINNESOTA 7373 41-1652566
<S> <C> <C>
(State or other jurisdiction of (Primary standard industrial (I.R.S. Employer
incorporation) classification code number) Identification Number)
</TABLE>
8091 WALLACE ROAD
MINNEAPOLIS, MINNESOTA 55344
(612) 903-2000
(Address and Telephone Number of Principal Executive Offices)
------------------------
ROBERT F. OLSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INTRANET SOLUTIONS, INC.
8091 WALLACE ROAD
MINNEAPOLIS, MINNESOTA 55344
(612) 903-2000
(Name, Address, and Telephone Number of Agent for Service)
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Copies to:
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<S> <C>
WILLIAM M. MOWER, ESQ. STEVEN C. KENNEDY, ESQ.
PHILIP J. TILTON, ESQ. FAEGRE & BENSON LLP
MASLON EDELMAN BORMAN & BRAND, LLP 2200 NORWEST CENTER
3300 NORWEST CENTER MINNEAPOLIS, MINNESOTA 55402
MINNEAPOLIS, MINNESOTA 55402 (612) 336-3000
(612) 672-8200 FAX (612) 336-3026
FAX (612) 672-8397
</TABLE>
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APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: As soon as practicable
after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X] Registration No. 333-77389
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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<PAGE> 2
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the "Amendment") to the Registration
Statement on Form S-1 (File No. 333-77389) of IntraNet Solutions, Inc. (the
"Registration Statement") is being filed pursuant to Rule 462(d) under the
Securities Act of 1933, as amended, for the sole purpose of amending a certain
exhibit previously filed with the Registration Statement and, accordingly, shall
become effective immediately upon filing with the Securities and Exchange
Commission (the "Commission").
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
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<CAPTION>
NUMBER DESCRIPTION
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<C> <S>
1 Revised Form of Underwriting Agreement.
3.1 Amended and Restated Articles of Incorporation (incorporated
by reference to Exhibit 3.1 of the Registrant's registration
statement on Form SB-2, File No. 333-13175).
3.2 Bylaws (incorporated by reference to Exhibit 3.2 of the
Registrant's registration statement on Form SB-2, File No.
333-14175).
3.3 Articles of Amendment to Articles of Incorporation, as dated
June 20, 1997 (incorporated by reference to Exhibit 3.3 of
the Registrant's Form 10-KSB for the fiscal year ended March
31, 1997).
4.1 Certificate of Designation of Series B Preferred Stock
(incorporated by reference to Exhibit 4.1 of the
Registrant's registration statement on Form S-3, File No.
333-57181).
4.2 Securities Purchase Agreement, dated May 6, 1998, by and
among the Registrant, Stark International and Shepherd
Investments International, Ltd. (incorporated by reference
to Exhibit 4.2 of the Registrant's registration statement on
Form S-3, File No. 333-57181).
4.3 Registration Rights Agreement, dated May 6, 1998, by and
among the Registrant, Stark International and Shepherd
Investments International, Ltd. (incorporated by reference
to Exhibit 4.3 of the Registrant's registration statement on
Form S-3, File No. 333-57181).
4.4 Certificate of Designation of Series A convertible preferred
stock (incorporated by reference to Exhibit 3(i)(A) of the
Registrant's Form 10-QSB for the three months ended June 30,
1997).
4.5 Form of Stock Purchase Warrant issued to purchasers of units
containing the Registrant's Series A convertible preferred
stock and Stock Purchase Warrants (incorporated by reference
to Exhibit 4.1 of the Registrant's Form 10-QSB for the three
months ended June 30, 1997).
4.6 Form of Registration Rights Agreement entered into by and
between the Registrant and purchasers of units containing
the Registrant's Series A convertible preferred stock and
Stock Purchase Warrants (incorporated by reference to
Exhibit 10.1 of the Registrant's Form 10-QSB for the three
months ended June 30, 1997).
5 Opinion of Maslon Edelman Borman & Brand, LLP.
10.1 Lease Agreement dated, April 24, 1996, by and between CSM
Investors, Inc. and Registrant (incorporated by reference to
Exhibit 10.1 of the Registrant's registration statement on
Form SB-2, File No. 333-14175).
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
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10.2 Credit and Security Agreement, dated March 14, 1995, by and
between Diversified Business Credit, Inc. and the Registrant
(incorporated by reference to Exhibit 10.2 of the
Registrant's registration statement on Form SB-2, File No.
333-14175).
10.3 Term Loan Supplement to Credit Agreement, dated March 14,
1995, by and between the Registrant and Diversified Business
Credit, Inc. (incorporated by reference to Exhibit 10.3 of
the Registrant's registration statement on Form SB-2, File
No. 333-14175).
10.4 IntraNet Solutions, Inc. 1994-1997 Stock Option and
Compensation Plan (incorporated by reference to Exhibit 10.4
of the Registrant's registration statement on Form SB-2,
File No. 333-14175).
10.5 Employment Agreement, dated July 30, 1996, by and between
the Registrant and Robert F. Olson (incorporated by
reference to Exhibit 10.5 of the Registrant's registration
statement on Form SB-2, File No. 333-14175).
10.6 Employment Agreement, dated July 30, 1996, by and between
the Registrant and Jeffrey J. Sjobeck (incorporated by
referenced to Exhibit 10.6 to the Registrant's Form 10-KSB
for the fiscal year ended March 31, 1997).
10.7 Promissory Note, dated December 23, 1996, made by the
Registrant in favor of Circle F Ventures, LLC (incorporated
by reference to Exhibit 10.7 of the Registrant's Form 10-KSB
for the fiscal year ended March 31, 1997).
10.8 Amendment, dated March 4, 1997, to the Promissory Note made
by the Registrant in favor of Circle F Ventures, LLC dated
December 23, 1996 (incorporated by reference to Exhibit 10.8
of the Registrant's Form 10-KSB for the fiscal year ended
March 31, 1997).
10.9 Lease Agreement dated April 22, 1998, by and between Lake
Corporate Center LLC and the Registrant (incorporated by
reference to Exhibit 10.9 of the Registrant's registration
statement on Form 10-KSB for the fiscal year ended March 31,
1998).
10.10 Stock Purchase Warrant Agreement, dated December 23, 1996,
by and between the Company and Circle F Ventures, LLC
(incorporated by reference to Exhibit 10.10 of the
Registrant's Form 10-KSB for the fiscal year ended March 31,
1997).
10.11 Security Agreement, dated December 23, 1996, by and between
the Registrant and Circle F Ventures, LLC (incorporated by
reference to Exhibit 10.11 of the Registrant's Form 10-KSB
for the fiscal year ended March 31, 1997).
10.12 Subordination Agreement, dated December 23, 1996, by and
between the Registrant Diversified Business Credit, Inc. and
Circle F Ventures, LLC (incorporated by reference to Exhibit
10.12 of the Registrant's Form 10-KSB for the fiscal year
ended March 31, 1997).
10.13 Promissory Note, dated March 18, 1997, made by the
Registrant in favor of Circle F Ventures, LLC (incorporated
by reference to Exhibit 10.13 of the Registrant's Form
10-KSB for the fiscal year ended March 31, 1997).
10.14 Sublease Agreement, dated April 22, 1998, by and between CSM
Investors, Inc., Digital River, Inc. and the Registrant
(incorporated by reference to Exhibit 10.14 of the
Registrant's Form 10-KSB for the fiscal year ended March 31,
1997).
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
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<C> <S>
10.15 Stock Purchase Warrant Agreement, dated March 18, 1997, by
and between the Registrant and Circle F Ventures, LLC
(incorporated by reference to Exhibit 10.15 of the
Registrant's Form 10-KSB for the fiscal year ended March 31,
1997).
10.16 Schedule identifying certain material details of documents
substantially identical to those set forth in Exhibits
10.17, 10.18, 10.19 and 10.20 (incorporated by reference to
Exhibit 10.16 of the Registrant's Form 10-KSB for the fiscal
year ended March 31, 1997).
10.17 Promissory Note, dated December 20, 1996, made by the
Registrant in favor of Rita M. Olson (incorporated by
reference to Exhibit 10.17 of the Registrant's Form 10-KSB
for the fiscal year ended March 31, 1997).
10.18 Amendment, dated March 4, 1997, to the Promissory Note made
by the Registrant in favor of Rita M. Olson dated December
20, 1996 (incorporated by reference to Exhibit 10.18 of the
Registrant's Form 10-KSB for the fiscal year ended March 31,
1997).
10.19 Amendment, dated June 5, 1997, by and between the Registrant
and Rita M. Olson dated December 20, 1996 (incorporated by
reference to Exhibit 10.19 of the Registrant's Form 10-KSB
for the fiscal year ended March 31, 1997).
10.20 Stock Purchase Warrant Agreement, dated December 20, 1996,
by and between the Registrant and Rita M. Olson
(incorporated by reference to Exhibit 10.20 of the
Registrant's Form 10-KSB for the fiscal year ended March 31,
1997).
10.21 Note Conversion and Subscription Agreement, dated June 6,
1997, by and between the Registrant and Rita M. Olson
(incorporated by reference to Exhibit 10.21 of the
Registrant's Form 10-KSB for the fiscal year ended March 31,
1997).
10.22 Note Conversion and Subscription Agreement, dated June 6,
1997, by and between the Registrant and Wayne W. Mills
(incorporated by reference to Exhibit 10.22 of the
Registrant's Form 10-KSB for the fiscal year ended March 31,
1997).
10.23 Asset Purchase Agreement, dated as of March 30, 1998, by and
among Midwest Graphics & Response Systems, Inc., Stephen M.
Krenz, and IntraNet Distribution Group, Inc. (incorporated
by reference to Exhibit 10.23 of the Registrant's Form
10-QSB for the three months ended September 30, 1998).
10.24 Asset Purchase Agreement, dated August 13, 1998, by and
among IntraNet Solutions, Inc., IntraNet Distribution Group,
Inc., and Communication Connections, Inc. (incorporated by
reference to Exhibit 10.24 of the Registrant's Form 10-QSB
for the three months ended September 30, 1998).
10.25 Asset Purchase Agreement, dated effective as of September
30, 1998, by and between Osage Systems Group, Inc., Osage
Systems Group Minneapolis, Inc. and IntraNet Solutions, Inc.
(incorporated by reference to Exhibit 10.25 of the
Registrant's Form 10-QSB for the three months ended
September 30, 1998).
10.26 Employment Agreement, dated April 1, 1999, by and between
the Registrant and Gregg A. Waldon.
10.27 Credit and Security Agreement, dated April 11, 1999, by and
between the Registrant and Diversified Business Credit, Inc.
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
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21 Subsidiaries of Registrant (incorporated by reference to
Exhibit 21 of the Registrant's registration statement on
Form SB-2, File No. 333-14175).
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Maslon Edelman Borman & Brand, LLP (included in
Exhibit 5 to the Registration Statement).
24.1 Powers of Attorney.
27 Financial Data Schedule.
</TABLE>
(b) Financial Statement Schedules
Schedule II -- Valuation and Qualifying Accounts
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post-Effective Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Minneapolis, State of Minnesota, on June 3, 1999.
INTRANET SOLUTIONS, INC.
By: /s/ GREGG A. WALDON
-----------------------------------
Name: Gregg A. Waldon
Title: Chief Financial Officer,
Treasurer and Secretary
(Principal Financial
and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below on the 3rd day of
June, 1999 by the following persons in the capacities indicated:
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<CAPTION>
SIGNATURE TITLE
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<C> <S>
* President, Chief Executive Officer
- --------------------------------------------------- and Director (Principal Executive
Robert F. Olson Officer)
* Chief Financial Officer, Treasurer,
- --------------------------------------------------- Secretary and Director (Principal
Gregg A. Waldon Financial and Accounting Officer)
* Director
- ---------------------------------------------------
Ronald E. Eibensteiner
* Director
- ---------------------------------------------------
Kenneth H. Holec
* Director
- ---------------------------------------------------
Steven C. Waldron
</TABLE>
* Gregg A. Waldon, by signing his name hereto, does hereby sign this document on
behalf of himself and each of the other above-named executive officer and
directors of the Registrant pursuant to powers of attorney duly executed by
such person.
<TABLE>
<C> <S>
/s/ GREGG A. WALDON
- ---------------------------------------------------
Gregg A. Waldron
</TABLE>
II-6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF DOCUMENT PAGE NO.
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<S> <C> <C>
1 Revised Form of Underwriting Agreement
5 Opinion of Maslon Edelman Borman & Brand, LLP. *
10.26 Employment Agreement, dated April 1, 1999, by and between *
the Registrant and Gregg A. Waldon.
10.27 Credit and Security Agreement, dated April 11, 1999, by and *
between the Registrant and Diversified Business Credit, Inc.
23.1 Consent of Grant Thornton LLP. *
23.2 Consent of Ernst & Young LLP. *
23.3 Consent of Maslon Edelman Borman & Brand, LLP (included in *
Exhibit 5).
24.1 Powers of Attorney. *
27 Financial Data Schedule *
</TABLE>
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* Previously filed.
<PAGE> 1
EXHIBIT 1
3,680,000 Shares
INTRANET SOLUTIONS, INC.
Common Stock
$.01 Par Value Per Share
UNDERWRITING AGREEMENT
June 3, 1999
Dain Rauscher Incorporated
U.S. Bancorp Piper Jaffray Inc.
As Representatives of the several Underwriters
c/o Dain Rauscher Wessels
Dain Bosworth Plaza
60 South Sixth Street
Minneapolis, Minnesota 55402
Ladies and Gentlemen:
IntraNet Solutions, Inc., a Minnesota corporation (the "Company"), and
the shareholders of the Company named in Schedule B hereto (the "Selling
Shareholders") propose, subject to the terms and conditions stated herein, to
issue and sell, or to sell, as the case may be, to the several Underwriters
named in Schedule A hereto (the "Underwriters"), for which you are acting as
representatives (the "Representatives"), an aggregate of 3,680,000 shares (the
"Firm Shares") of Common Stock, $.01 par value per share, of the Company (the
"Common Stock"), including 3,230,000 shares to be sold by the Company and
450,000 shares to be sold by the Selling Shareholders. The Company and the
Selling Shareholders also propose, subject to the terms and conditions stated
herein, to sell to the Underwriters, at the Underwriters' election, up to an
aggregate of 552,000 additional shares of Common Stock (the "Option Shares"),
including 484,500 shares to be sold by the Company and 67,500 shares to be sold
by the Selling Shareholders. The Firm Shares and the Option Shares are herein
collectively called the "Shares."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-77389) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "Act"). The registration statement, as
amended at the time it was declared effective, including the information (if
any) deemed to be part thereof pursuant to Rule 430A under the Act is herein
referred to as the "Registration Statement." The form of prospectus first filed
by the Company with the Commission pursuant to Rules 424(b) and 430A under the
Act is referred to herein as the "Prospectus." Each preliminary prospectus
included in the Registration Statement prior to the time it became effective or
filed with the Commission pursuant to Rule 424(a) under the Act is referred to
herein as a "Preliminary Prospectus." Copies of the
<PAGE> 2
Registration Statement, including all exhibits and schedules thereto, any
amendments thereto and all Preliminary Prospectuses have been delivered to you.
The Company and the Selling Shareholders hereby confirm their
respective agreements with respect to the purchase of the Shares by the
Underwriters as follows:
1. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) The Registration Statement has been declared
effective under the Act, and no post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. No stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or threatened by the
Commission.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, nor, to the best of
the Company's knowledge have proceedings for such purpose been instituted, and
each Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and regulations
of the Commission promulgated thereunder (collectively, the "Regulations"), and
did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, the Company makes no representation or warranty
as to information contained in or omitted in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf of any
Underwriter through the Representatives expressly for use in the preparation
thereof.
(iii) The Registration Statement conforms, and the
Prospectus and any amendments or supplements thereto will conform, in all
material respects to the requirements of the Act and Regulations. Neither the
Registration Statement nor any amendment thereto, and neither the Prospectus nor
any supplement thereto, contains or will contain, as the case may be, any untrue
statement of a material fact or omits or will omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to information
contained in or omitted from the Registration Statement or the Prospectus, or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter
through the Representatives expressly for use in the preparation thereof.
(iv) The Company has been duly organized, is validly
existing as a corporation under the laws of its state of incorporation, has the
corporate power and authority to own, lease, license and use its properties and
conduct its business as described in the Prospectus,
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<PAGE> 3
and is duly qualified to transact business and is in good standing in all
jurisdictions in which the conduct of its business or its ownership, leasing,
licensing or using of property requires such qualification and the failure so to
qualify would have a material adverse effect on the business, properties, key
personnel, prospects, condition, financial or otherwise, or results of
operations of the Company and its subsidiaries, taken as a whole (a "Material
Adverse Effect").
(v) The Company has no subsidiaries other than as listed
on Exhibit 21 to the Registration Statement (herein referred to as its
"subsidiaries"). Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own,
lease, license and use its properties and conduct its business as described in
the Prospectus, and is duly qualified to transact business in all jurisdictions
in which the conduct of its business or its ownership, lease, license or use of
property requires such qualification and the failure so to qualify would have a
Material Adverse Effect. Other than the Company's subsidiaries, the Company does
not own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in any
firm, partnership, joint venture, association or other entity. All outstanding
shares of capital stock of each of the subsidiaries of the Company have been
duly authorized and validly issued, are fully paid and non-assessable, and are
owned, directly or indirectly, by the Company free and clear of all liens,
encumbrances and security interests. No options, warrants or other rights to
purchase, agreements or other obligations to issue, or other rights to convert
any obligations into, shares of capital stock or ownership interests in any of
the subsidiaries of the Company are outstanding.
(vi) The outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable. All offers and sales by the Company of outstanding shares of
capital stock and other securities of the Company, prior to the date hereof,
were made in compliance with the Act and all applicable state securities or blue
sky laws and were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right. The Shares to be issued and sold by the
Company to the Underwriters pursuant to this Agreement have been duly authorized
and, when issued and paid for as contemplated herein, will be validly issued,
fully paid and nonassessable. Each of the Underwriters will receive good and
marketable title to the Shares purchased by it, free and clear of any and all
liens, encumbrances, pledges, security interests, charges, claims, equitable
interests, restrictions and defects. Except as otherwise stated in the
Prospectus, there are no preemptive rights or other rights to subscribe for or
to purchase, or any restriction upon the voting or transfer of, any shares of
capital stock of the Company pursuant to the Company's charter, bylaws or any
agreement or other instrument to which the Company is a party or by which the
Company is bound. Neither the filing of the Registration Statement nor the
offering or the sale of the Shares as contemplated by this Agreement gives rise
to any rights for, or relating to, the registration of any shares of capital
stock or other securities of the Company, accept such rights which have been
validly waived or satisfied. Except as described in the Prospectus, there are no
outstanding options, warrants, agreements or contracts to purchase or preemptive
or other rights to purchase, subscribe for or acquire from the Company any
shares of its capital stock or any securities or obligations convertible into or
exercisable for shares of the Company's capital
3
<PAGE> 4
stock. The Company has the authorized and outstanding capital stock as set forth
under the heading "Capitalization" in the Prospectus as of the date set forth
therein. The outstanding capital stock of the Company, including the Shares,
conforms, and the Shares to be issued by the Company to the Underwriters will
conform, to the description thereof contained in the Prospectus.
(vii) The financial statements, together with the
related notes and schedules as set forth in the Registration Statement and
Prospectus, present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and its subsidiaries
on the basis stated in the Registration Statement at the indicated dates and for
the indicated periods. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made, except as otherwise
stated therein and are in accordance with the books and records of the Company.
The summary and selected financial and statistical data included in the
Registration Statement present fairly the information shown therein on the basis
stated in the Registration Statement and have been compiled on a basis
consistent with the financial statements presented therein. The books, records
and accounts of the Company and its subsidiaries accurately and fairly reflect
in all material respects, in reasonable detail, the transactions in and
dispositions of the assets of, and the results of operations of, the Company and
its subsidiaries.
(viii) There is no action, suit, claim, proceeding or
investigation pending or, to the knowledge of the Company, threatened or
contemplated against the Company or any of its subsidiaries or any of their
respective officers, directors, properties, assets or rights before any court or
administrative or regulatory agency which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the aggregate,
result in a Material Adverse Effect except as set forth in the Registration
Statement.
(ix) The Company has good and marketable title to all
properties and assets reflected in the financial statements hereinabove
described as owned by the Company (or as described in the Prospectus as owned by
the Company), in each case free and clear of all liens, encumbrances, pledges,
security interests, charges, claims, equitable interests, restrictions and
defects, except such as are described in the Prospectus or do not materially
affect the value of such properties and assets and do not materially interfere
with the use made and proposed to be made of such properties and assets by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid and
enforceable leases with such exceptions set forth in the Prospectus or 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.
(x) Since the respective dates as of which information
is given in the Registration Statement and Prospectus, as they may be amended or
supplemented, (A) there has not been any material adverse change, or any
development that could reasonably be expected to
4
<PAGE> 5
result in a material adverse change, in or affecting the condition, financial or
otherwise, of the Company and its subsidiaries, taken as a whole, or the
business affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a whole,
whether or not occurring in the ordinary course of business, (B) there has not
been any transaction not in the ordinary course of business entered into by the
Company or any of its subsidiaries which is material to the Company and its
subsidiaries, taken as a whole, other than transactions described or
contemplated in the Registration Statement, (C) the Company and its subsidiaries
have not incurred any material liabilities or obligations, direct or indirect or
contingent or non-contingent, which are not in the ordinary course of business
or which could result in a material reduction in the future earnings of the
Company and its subsidiaries, (D) the Company and its subsidiaries have not
sustained any material loss or interference with their respective businesses or
properties from fire, flood, windstorm, accident or other calamity, whether or
not covered by insurance, (E) there has not been any change in the capital stock
of the Company (other than upon the exercise of options and warrants described
in the Registration Statement), or any material increase in the short-term or
long-term debt (including capitalized lease obligations) of the Company and its
subsidiaries, taken as a whole, (F) there has not been any declaration or
payment of any dividends or any distributions of any kind with respect to the
capital stock of the Company, other than any dividends or distributions
described or contemplated in the Registration Statement, or (G) there has not
been any issuance of warrants, options, convertible securities or other rights
to purchase or acquire capital stock of the Company (other than options granted
under the Company's employee stock option plans referred to in the Prospectus).
(xi) Neither the Company nor any of its subsidiaries is
in violation of, or in default under, its charter or bylaws, or any statute, or
any law, rule, regulation, order, judgment, injunction, decree or authorization
of any court or governmental or administrative agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties, or any indenture, mortgage, deed of trust, loan agreement, lease,
franchise, license 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 property or assets of the Company or any
of its subsidiaries is subject, which violation or default would have a Material
Adverse Effect.
(xii) The issuance and sale of the Shares by the Company
and the compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions contemplated herein will not violate
any provision of the charter or bylaws of the Company or any of its subsidiaries
or any statute or any order, judgment, decree, rule, regulation or authorization
of any court or governmental or administrative agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties, and will not conflict with, result in a breach or violation of, or
constitute, either by itself or upon notice or passage of time or both, a
default under any indenture, mortgage, deed of trust, loan agreement, lease,
franchise, license 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 property or assets of the Company or any
of its subsidiaries is subject. No approval, consent,
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<PAGE> 6
order, authorization, designation, declaration or filing by or with any court or
governmental agency or body is required for the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated, except as may be required under the Act or any state securities or
blue sky laws or under the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD"). No further approval or authorization of
any securityholder, the Company's Board of Directors or any duly appointed
committee thereof or others is required for the issuance and sale or transfer of
the Shares, except as may be required by the NASD or under state securities or
blue sky laws.
(xiii) The Company and each of its subsidiaries holds
and is operating in compliance with all licenses, approvals, certificates and
permits from governmental and regulatory authorities, foreign and domestic,
which are necessary or material to the conduct of its business as described in
the Prospectus (except where the failure to so hold or operate in compliance
with such a license, approval, certificate or permit would not have a Material
Adverse Effect) and there are no proceedings pending or, to the knowledge of the
Company, threatened, which may cause any such license, approval, certificate or
permit to be withdrawn, cancelled, suspended or not renewed.
(xiv) The Company has the corporate power and authority
to enter into this Agreement and to authorize, issue and sell the Shares it will
sell hereunder as contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(xv) Grant Thornton LLP and Ernst & Young LLP, which
have certified certain of the financial statements filed with the Commission as
part of the Registration Statement, are independent public accountants as
required by the Act and Regulations.
(xvi) The Company has not taken and will not take,
directly or indirectly, any action designed to, or which has constituted, or
which might reasonably be expected to cause or result in, stabilization or
manipulation of the price of the Common Stock.
(xvii) The Company's Common Stock is registered pursuant
to Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and the Shares have been approved for designation upon notice
of issuance on The Nasdaq National Market under the symbol "INRS."
(xviii) The Company has obtained and delivered to the
Representatives written agreements (the "Lock-Up Agreements"), in form and
substance satisfactory to the Representatives, of each of its officers and
directors that such officers and directors shall not, except pursuant to the
Registration Statement, (A) offer, pledge, sell, offer to sell, contract to
sell, sell any option or contract to purchase, purchase any option to sell,
grant any option right or warrant to purchase, or otherwise transfer or dispose
of, directly or indirectly, any of the shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, Common Stock, or (B) enter
into any swap or other agreement that transfers, in whole or in part,
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<PAGE> 7
any of the economic consequences of ownership of the shares of Common Stock or
any securities convertible into, or exercisable or exchangeable for, shares of
Common Stock (whether any such transaction described in clause (A) or (B) above
is to be settled by delivery of the shares of Common Stock or such other
securities, in cash or otherwise), in each case, beneficially owned (within the
meaning of Rule 13d-3 under the Exchange Act) or otherwise controlled by such
officer or director on the date hereof or hereafter acquired, for a period
beginning from the date of execution of this Agreement and continuing to and
including the date 180 days after the date of the Prospectus (the "Lock-Up
Period"); provided, however, that such officer or director may, without the
prior written consent of Dain Rauscher Wessels on behalf of the Underwriters,
transfer shares of Common Stock or any securities convertible into, or
exercisable or exchangeable for, Common Stock either during his or her lifetime
or, on death, by will or intestacy to members of his or her immediate family or
to trusts exclusively for the benefit of members of his or her immediate family
or in connection with bona fide gifts, provided that, prior to any such
transfer, such transferee executes an agreement, satisfactory to Dain Rauscher
Wessels, pursuant to which such transferee agrees to receive and hold such
shares subject to the provisions of the Lock-Up Agreement and that there shall
be no further transfer except in accordance with the provisions of the Lock-Up
Agreement. For purposes of this paragraph, "immediate family" shall mean the
spouse, lineal descendant, father, mother, brother or sister of such officer or
director. The restrictions on transfers described in the Lock-Up Agreements
shall not apply to (1) the sale of any shares of Common Stock to the
Underwriters pursuant to this Agreement or (2) transactions in shares of Common
Stock acquired in open-market transactions after completion of the Offering.
(xix) The Company has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company.
(xx) The Company is in compliance with all provisions of
Florida Statutes Section 517.075 (Chapter 92-198, laws of Florida). The Company
does not do any business, directly or indirectly, with the government of Cuba or
with any person or entity located in Cuba.
(xxi) The Company and its subsidiaries have timely
filed all federal, state, local and foreign tax returns or reports required to
be filed, and have paid in full all taxes indicated by said returns or reports
and all assessments received by it or any of them to the extent that such taxes
have become due and payable, except where the Company and its subsidiaries are
contesting in good faith such taxes and assessments and there is no tax
deficiency that has been or, to the Company's knowledge, might be asserted
against the Company or any of its subsidiaries which might have a Material
Adverse Effect and all material tax liabilities, whether or not disputed, are
adequately provided for on the books of the Company and its subsidiaries. Except
as set forth in the Registration Statement and the Prospectus, neither the
Company nor any subsidiary has executed or filed with any taxing authority,
foreign or domestic, any agreement extending the period for assessment or
collection of any income taxes or is a party to
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<PAGE> 8
any pending action or proceeding by any foreign or domestic governmental agency
for assessment or collection of taxes, and no claims for assessment or
collection of taxes have been asserted against the Company or any of its
subsidiaries.
(xxii) The Company and each of its subsidiaries owns or
possesses adequate licenses or other rights to use all patents, patent
applications, trademarks, service marks, tradenames, trademark registrations,
service mark registrations, copyrights, licenses, inventions, trade secrets
know-how, technology and other similar rights necessary for or material to the
conduct of its business as described in the Prospectus (except for failures to
own or possess such rights that would not have a Material Adverse Effect). The
Company has no knowledge of any facts which would preclude it from having rights
to its patent applications described in the Prospectus. The Company has no
knowledge of any infringement by it or its subsidiaries of, or conflicts with,
any patents, patent applications, trademarks, service marks, tradenames,
trademark registrations, service mark registrations, copyrights, licenses,
inventions, trade secrets, know-how, technology or other similar rights of
others, and neither the Company nor any of its subsidiaries has any knowledge of
or has received any notice or claim of conflict with the asserted rights of
others with respect any of the foregoing.
(xxiii) The Company is not, and upon completion of
the sale of Shares contemplated hereby will not be, required to register as an
"investment company" under the Investment Company Act of 1940, as amended.
(xxiv) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C) access to records is
permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxv) Other than as contemplated by this Agreement,
neither the Company nor any of its subsidiaries has incurred any liability for
any finder's or broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xxvi) The Company and its subsidiaries maintain insurance
with insurers of recognized financial responsibility of the types and in the
amounts generally deemed adequate for their respective businesses and consistent
with insurance coverage maintained by similar companies in similar businesses,
including, but not limited to, insurance covering real and personal property
owned or leased by the Company or its subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against,
all of which insurance is in full force and effect; neither the Company nor any
such subsidiary has been refused any insurance coverage sought or applied for;
and neither the Company nor any such
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<PAGE> 9
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
(xxvii) To the Company's knowledge, no labor disturbance by
the employees of the Company or any of its subsidiaries exists or is imminent;
and the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers, subassemblers, subcontractors
or international distributors that might be expected to result in a material
adverse change in the condition (financial or otherwise), earnings, operations,
business or business prospects of the Company and its subsidiaries considered as
one enterprise. No collective bargaining agreement exists with any of the
Company's employees and, to the Company's knowledge, no such agreement is
imminent.
(xxviii) The Company has not distributed and will not
distribute prior to the later of (A) the Closing Date, or any date on which
Option Shares are to be purchased, as the case may be, and (B) 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.
(xxix) Neither the Company nor any of its subsidiaries
(nor any person representing the Company or any of its subsidiaries) has at any
time during the last five (5) years (A) made any payment in violation of the
Foreign Corrupt Practices Act, or (B) made any payment to any federal or state
governmental officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the laws of
the United States or any jurisdiction thereof.
(xxx) Except as set forth in the Registration Statement
and Prospectus, (i) the Company and each of its subsidiaries is in compliance
with all rules, laws and regulations relating to the use, treatment, storage and
disposal of toxic substances and protection of health or the environment
("Environmental Laws") which are applicable to its business, except for such
instances of non-compliance as would not individually or in the aggregate have a
Material Adverse Effect, (ii) neither the Company nor any of its subsidiaries
has received notice from any governmental authority or third party of an
asserted claim under Environmental Laws, which claim is required to be disclosed
in the Registration Statement and the Prospectus and is not so disclosed, (iii)
to the knowledge of the Company, neither the Company nor any of its subsidiaries
will be required to make future material capital expenditures to comply with
Environmental Laws and (iv) to the knowledge of the Company, no property which
is owned, leased or occupied by the Company or any of its subsidiaries has been
designated as a Superfund site pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. ss.
9601, et seq.), or otherwise designated as a contaminated site under applicable
state or local law.
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(xxxi) 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 to or for the benefit of any of the
officers or directors of the Company or any of the members of the families of
any of them, except as disclosed in the Registration Statement and the
Prospectus.
(xxxii) The Company has filed and made available to the
Underwriters all forms, reports, and documents required to be filed by the
Company with the Commission since March 31, 1998 (including all exhibits, notes,
and schedules thereto and documents incorporated by reference therein)
(collectively, the "Commission Reports"). The Commission Reports (i) at the time
filed, with respect to all of the Commission Reports other than registration
statements filed under the Act, or at the time of their respective effective
dates, with respect to registration statements filed under the Act, complied as
to form in all material respects with the applicable requirements of the Act or
the Exchange Act, as the case may be, and (ii) did not at the time filed or at
the time of their respective effective dates, as the case may be (or if amended
or superseded by a filing prior to the date of this Agreement, then on the date
of such filing), contain any untrue statement of a material fact or omit to
state a material fact required to be stated in such Commission Reports or
necessary in order to make the statements in such Commission Reports, in the
light of the circumstances under which they were made, not misleading. None of
the Company's subsidiaries is required to file any forms, reports, or other
documents with the Commission.
(b) Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel to the Underwriters shall be deemed
to be a representation and warranty of the Company to each Underwriter as to the
matters covered thereby.
2. Representations, Warranties and Covenants of the Selling Shareholders.
(a) Each Selling Shareholder severally represents and warrants
to, and covenants and agrees with, each of the Underwriters and the Company
that:
(i) Such Selling Shareholder has duly executed and
delivered a Custody Agreement (the "Custody Agreement") with Norwest Bank
Minnesota, N.A., as Custodian, pursuant to which certificates in negotiable form
for the Shares to be sold by such Selling Shareholder hereunder have been placed
in custody for delivery under this Agreement.
(ii) Such Selling Shareholder has full right, power and
authority to enter into this Agreement and the Custody Agreement, and to sell,
assign, transfer and deliver the Shares to be sold by such Selling Shareholder
hereunder; and all consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Shareholder of this Agreement and the
Custody Agreement, and for the sale and delivery of the Shares to be sold by
such Selling Shareholder hereunder, have been obtained, except such as may be
required by any state securities or blue sky laws.
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(iii) Such Selling Shareholder has, and at the Closing Date
and the Option Closing Date, as the case may be (as such dates are hereinafter
defined), will have good and valid title to the Firm Shares and the Option
Shares, respectively, to be sold by such Selling Shareholder hereunder, free of
any liens, encumbrances, security interests, equities or claims whatsoever; and
upon delivery of and payment for such Firm Shares and Option Shares pursuant to
this Agreement, good and valid title thereto, free of any liens, encumbrances,
security interests, equities or claims whatsoever, will be transferred to the
several Underwriters.
(iv) The execution and delivery by such Selling Shareholder
of this Agreement and the Custody Agreement and the consummation by such Selling
Shareholder of the transactions herein and therein contemplated and the
fulfillment by such Selling Shareholder of the terms hereof and thereof will not
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any will, mortgage, deed of trust,
loan agreement or other agreement, instrument or obligation to which such
Selling Shareholder is a party or to which any of the property or assets of such
Selling Shareholder is subject, except for such agreements, instruments or
obligations for which consents have been obtained, nor will such actions result
in any violations of any statute, rule, regulation or order applicable to such
Selling Shareholder of any court or of any regulatory body or administrative
agency or other governmental body having jurisdiction over such Selling
Shareholder.
(v) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to, or which has constituted,
or which might reasonably be expected to cause or result in, stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Shares.
(vi) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus thereof, the Prospectus
or any amendment or supplement thereto are made in reliance upon and in
conformity with written information with respect to such Selling Shareholder
furnished to the Company by such Selling Shareholder expressly for use therein,
such Preliminary Prospectus and the Registration Statement did not, and the
Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus will not, when they become effective or are filed
with the Commission, as the case may be, 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.
(vii) Such Selling Shareholder will not offer to sell, sell,
transfer, assign or otherwise dispose of any Common Stock or other capital stock
of the Company, directly or indirectly, for a period of 180 days after the date
of the Prospectus, otherwise than as expressly permitted under the Lock-Up
Agreement between such Selling Shareholder and the Representatives.
(viii) Such Selling Shareholder has reviewed the information
contained in the Registration Statement and, based on such review and such
Selling Shareholder's knowledge of the industry, the Company and its business
(but without further investigation),
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such Selling Shareholder does not have knowledge that, and nothing has come to
such Selling Shareholder's attention that would give such Selling Shareholder
reason to believe that, at the time the Registration Statement became or
becomes, as the case may be, effective and at all times subsequent thereto up to
and on the Closing Date and on any Option Closing Date, (i) the Registration
Statement and the Prospectus, and any amendments or supplements thereto,
contained or will contain any untrue statement of a material fact or omitted or
will omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (ii) the Prospectus, and any
amendments or supplements thereto effective on or prior to the Closing Date or
any Option Closing Date, contained or will contain any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ix) The Shares to be sold by such Selling Shareholder
pursuant to this Agreement have been duly authorized and are validly issued,
fully paid and non-assessable.
(x) This Agreement and the Custody Agreement have been
duly executed and delivered by such Selling Shareholder and are valid and
binding agreements of such Selling Shareholder.
(xi) Assuming the Underwriters purchase the Shares to be
sold by such Selling Shareholder for value, in good faith and without notice of
any adverse claim within the meaning of Article VIII of the Uniform Commercial
Code, delivery of the Shares to be sold by such Selling Shareholder pursuant to
this Agreement will pass marketable title to such Shares free and clear of any
security interests, claims, liens, equities and other encumbrances.
(b) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of 1986, as
amended, with respect to the transactions herein contemplated, each Selling
Shareholder agrees to deliver to you prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
(c) Each Selling Shareholder specifically agrees that the Shares
represented by the certificates held in custody for such Selling Shareholder
under the Custody Agreement are subject to the interests of the Underwriters
hereunder, and that the arrangements made by such Selling Shareholder for such
custody are to that extent irrevocable. Such Selling Shareholder specifically
agrees that the obligations of such Selling Shareholder hereunder shall not be
terminated by operation of law, whether by the death or incapacity of such
Selling Shareholder or by the occurrence of any other event. If such Selling
Shareholder should die or become incapacitated, or if any other such event
should occur before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of such Selling
Shareholder in accordance with the terms and conditions of this Agreement and of
the Custody Agreement shall be as valid as if such death, incapacity or other
event had not occurred,
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regardless of whether or not the Custodian shall have received notice of such
death, incapacity or other event.
(d) Any certificate signed by or on behalf of any Selling
Shareholder and delivered to the Representatives or to counsel to the
Underwriters shall be deemed to be a representation and warranty of such Selling
Shareholder to each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and covenants contained herein, and subject to the
terms and conditions herein set forth, the Company and each Selling Shareholder
agree, severally and not jointly, to sell to each Underwriter and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
each Selling Shareholder, at a price of $7.44 per share, the number of Firm
Shares (to be adjusted by you to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Company and
each Selling Shareholder, as set forth opposite their respective names in
Schedule B hereto, by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule A hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all the Underwriters from
the Company and the Selling Shareholders hereunder.
In addition, on the basis of the representations, warranties and
covenants contained herein and subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder, as and to the extent indicated
in Schedule B hereto, hereby grant, severally and not jointly, to the several
Underwriters an option to purchase at the Underwriters' election up to the
number of Option Shares set forth opposite their respective names in Schedule B
hereto, at the same price per share as set forth for the Firm Shares in the
paragraph above, for the sole purpose of covering over allotments in the sale of
the Firm Shares. The option granted hereby may be exercised in whole or in part,
but only once, and at any time upon written notice given within 30 days after
the date of this Agreement, by you, as Representatives of the several
Underwriters, to the Company, the Selling Shareholders and the Custodian setting
forth the number of Option Shares as to which the several Underwriters are
exercising the option and the time and date at which certificates are to be
delivered. Any such election to purchase Option Shares shall be made in
proportion to the maximum number of Option Shares to be sold by the Company and
each Selling Shareholder as set forth in Schedule B hereto. If any Option Shares
are purchased, each Underwriter agrees, severally and not jointly, to purchase
that portion of the number of Option Shares as to which such election shall have
been exercised (subject to adjustment to eliminate fractional shares) determined
by multiplying such number of Option Shares by a fraction the numerator of which
is the maximum number of Option Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule A hereto
and the denominator of which is the maximum number of Option Shares which all of
the Underwriters are entitled to purchase hereunder. The time and date at which
certificates for Option Shares are to be delivered shall be determined by the
Representatives but shall not be earlier than two or later than ten full
business days after the exercise of such option,
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and shall not in any event be prior to the Closing Date. If the date of exercise
of the option is three or more full days before the Closing Date, the notice of
exercise shall set the Closing Date as the Option Closing Date.
Certificates in definitive form for the Shares to be purchased by each
Underwriter hereunder, and in such denominations and registered in such names as
Dain Rauscher Wessels may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company and such
Selling Shareholder to you for the account of such Underwriter at such time and
place as shall hereafter be designated by the Representatives, against payment
by such Underwriter or on its behalf of the purchase price therefor by certified
or official bank checks, payable to the order of the Company and such Selling
Shareholder in next day funds. The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 8:30 a.m., Minneapolis, Minnesota
time, at the offices of Maslon Edelman Borman & Brand, LLP, 3300 Norwest Center,
Minneapolis, Minnesota, on the third (or if the Shares are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, the fourth) full business day following the date hereof, or at such other
time and date as you and the Company determine pursuant to Rule 15c6-1(a) under
the Exchange Act, such time and date being herein referred to as the "Closing
Date," and, with respect to the Option Shares, at the time and on the date
specified by you in the written notice given by you of the Underwriters'
election to purchase the Option Shares, or such other time and date as you and
the Company may agree upon in writing, such time and date being referred to
herein as the "Option Closing Date." Such certificates will be made available
for checking and packaging at least twenty-four hours prior to the Closing Date
or the Option Closing Date, as the case may be, at a location as may be
designated by you.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to make a public offering of the Firm Shares as soon as the
Representatives deem it advisable to do so. The Firm Shares are to be initially
offered to the public at the initial public offering price and terms set forth
in the Prospectus. The Representatives may from time to time thereafter change
the public offering price and other selling terms. To the extent, if at all,
that any Option Shares are purchased pursuant to Section 3 hereof, the
Underwriters will offer such Option Shares to the public on the foregoing terms.
5. Covenants of the Company. The Company covenants and agrees with the
several Underwriters that:
(a) The Company will prepare and timely file with the Commission
under Rule 424(b) under the Act a Prospectus containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance
on Rule 430A under the Act, and will not file any amendment to the Registration
Statement or supplement to the Prospectus of which the Representatives shall not
previously have been advised and furnished with a copy and as to which the
Representatives shall have reasonably objected in writing promptly after
reasonable notice thereof or which is not in compliance with the Act or the
Regulations.
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(b) The Company will advise the Representatives promptly of
any request of the Commission for amendment of the Registration Statement or for
any supplement to the Prospectus or for any additional information, or of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for that purpose, and the Company
will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus or suspending such
qualification and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will endeavor to qualify the Shares for sale
under the securities laws of such jurisdictions as the Representatives may
reasonably have designated in writing and will, or will cause counsel to, make
such applications, file such documents, and furnish such information as may be
reasonably requested by the Representatives, provided that 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 where it is not now so qualified or
required to file such a consent. The Company will, from time to time, prepare
and file such statements, reports and other documents as are or may be required
to continue such qualifications in effect for so long a period as the
Representatives may reasonably request for distribution of the Shares.
(d) The Company will furnish the Underwriters with as many
copies of any Preliminary Prospectus as the Representatives may reasonably
request and, during the period when delivery of a prospectus is required under
the Act, the Company will furnish the Underwriters with as many copies of the
Prospectus in final form, or as thereafter amended or supplemented, as the
Representatives may, from time to time, reasonably request. The Company will
deliver to the Representatives, at or before the Closing Date, one copy of the
signature pages to Registration Statement and all amendments thereto, all
exhibits filed therewith, and will deliver to the Representatives such number of
copies of the Registration Statement, without exhibits, and of all amendments
thereto, as the Representatives may reasonably request.
(e) If, during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer, any event shall occur as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, not misleading, or if
for any other reason it shall be necessary at any time to amend or supplement
the Prospectus to comply with any law, the Company promptly will prepare and
file with the Commission an appropriate amendment to the Registration Statement
or supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein in
light of the circumstances existing when it is so delivered, not misleading, or
so that the Prospectus will comply with law. In case any Underwriter is required
to deliver a prospectus in connection with sales of any Shares at any time nine
months or more after the effective date of the Registration Statement, upon the
request of the Representatives but at the expense of such Underwriter, the
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Company will prepare and deliver to such Underwriter as many copies as the
Representatives may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act.
(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
18 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 thereunder and will advise you in
writing when such statement has been so made available.
(g) During a period of five (5) years after the date hereof,
or such shorter period that the Company remains subject to the periodic
reporting requirements of the Exchange Act, the Company, as soon as practicable
after the end of each respective financial quarter or year, as applicable, will
furnish to its shareholders annual reports (including financial statements
audited by independent certified public accountants) and will, upon request,
furnish to you and the other several Underwriters hereunder (i) concurrently
with making such reports available to its shareholders, statements of operations
of the Company for each of the first three quarters in the form made available
to the Company's shareholders; (ii) concurrently with the furnishing thereof to
its shareholders, a balance sheet of the Company as of the end of such fiscal
year, together with statements of operations, of shareholders' equity and of
cash flow of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent certified
public accountants; and (iii) concurrently with the furnishing of such reports
to its shareholders, copies of all reports (financial or other) mailed to
shareholders; and (iv) as soon as they are available, copies of all reports and
financial statements furnished to or filed with the Commission, any securities
exchange or The Nasdaq National Market by the Company (except for documents for
which confidential treatment is requested).
(h) No offering, sale or other disposition of any Common Stock
or other capital stock of the Company, or warrants, options, convertible
securities or other rights to acquire such Common Stock or other capital stock
(other than (i) pursuant to employee stock option plans, employee stock purchase
plans, outstanding options or on the conversion of convertible securities
outstanding on the date of this Agreement, (ii) in connection with business
acquisitions or (iii) pursuant to offerings exempt from the registration
requirements of the Act, provided that the Company shall not register the resale
of Common Stock or other capital stock of the Company, or warrants, options,
convertible securities or other rights to acquire such Common Stock or other
capital stock issued or issuable pursuant to such exempt transaction during the
Lock-Up Period; provided, that any employee stock options issued pursuant to
employee stock option plans during the Lock-Up Period shall not vest and become
exercisable to any extent prior to the expiration of the Lock-Up Period; and,
provided further, that any shares of Common Stock issued to any current officer
or director during the Lock-Up Period pursuant to the exercise of stock options
shall bear a restrictive legend restricting the transfer of such shares during
the Lock-Up Period) will be made from the date of this Agreement until the end
of the
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<PAGE> 17
Lock-Up Period, directly or indirectly, by the Company otherwise than hereunder
or with the prior written consent of the Representatives.
(i) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder substantially in accordance with the
purposes set forth under "Use of Proceeds" in the Prospectus. The Company will
invest such proceeds pending their use in such a manner that, upon completion of
such investment, the Company will not be an "investment company" as defined in
the Investment Company Act of 1940, as amended.
(j) The Company will use its best efforts to maintain the
designation of the Common Stock on The Nasdaq National Market.
(k) From the date of this Agreement until the termination of
the Lock-Up Period, the Company will not, without the prior written consent of
Dain Rauscher Wessels on behalf of the Underwriters, alter or amend in any
manner the vesting schedule of any option, warrant or other security of the
Company or its subsidiaries.
(l) The Company will maintain a Transfer Agent and, if
necessary under the jurisdiction of incorporation of the Company, a Registrar
(which may be the same entity as the Transfer Agent) for its Common Stock.
6. Costs and Expenses. Whether or not the transactions
contemplated by this Agreement are consummated, the Company will pay (directly
or by reimbursement) all costs, expenses and fees incident to the performance of
the obligations of the Company and the Selling Shareholders under this
Agreement, including, without limiting the generality of the foregoing, the
following: accounting fees of the Company; the fees and disbursements of counsel
for the Company, the cost of preparing, printing and filing of the Registration
Statement, Preliminary Prospectuses and the Prospectus and any amendments and
supplements thereto and the printing, mailing and delivery to the Underwriters
and dealers of copies thereof and of this Agreement, the Agreement Among
Underwriters, any Selected Dealers Agreement, the Underwriters' Selling
Memorandum, the Invitation Letter, the Power of Attorney, the Blue Sky
Memorandum and any supplements or amendments thereto (excluding, except as
provided below, fees and expenses of counsel to the Underwriters); the filing
fees of the Commission; the filing fees and expenses (including legal fees and
disbursements of counsel for the Underwriters) incident to securing any required
review by the NASD of the terms of the sale of the Shares; listing fees, if any,
transfer taxes and the expenses, including the fees and disbursements of counsel
for the Underwriters incurred in connection with the qualification of the Shares
under state securities or blue sky laws; the fees and expenses incurred in
connection with the designation of the Common Stock on The Nasdaq National
Market; the costs of preparing stock certificates; the costs and fees of any
registrar or transfer agent and all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 6. In addition, the Company will pay all travel and
lodging expenses incurred by management of the Company in connection with any
informational "road show" meetings held in connection with the offering and will
also pay for the preparation of all materials used in connection with such
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<PAGE> 18
meetings. The Selling Shareholders will pay the fees and expenses of any
separate counsel retained by them in connection with the transactions
contemplated hereby. The Company and the Selling Shareholders shall not,
however, be required to pay for any of the Underwriters' expenses (other than
those related to qualification of the Shares under state securities or blue sky
laws and those incident to securing any required review by the NASD of the terms
of the sale of the Shares but including, without limitation, the Underwriter
expenses specified in Section 5(e) of this Agreement) except that, if this
Agreement shall not be consummated because the conditions in Section 7 hereof
are not satisfied or because this Agreement is terminated by the Representatives
pursuant to clause (i) of Section 11(a) hereof, or by reason of any failure,
refusal or inability on the part of the Company or the Selling Shareholders to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on their respective parts to be performed, unless
such failure to satisfy said condition or to comply with said terms shall be due
to the default or omission of any Underwriter, then the Company shall promptly
upon request by the Representatives reimburse the several Underwriters for all
appropriately itemized out-of-pocket accountable expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but the Company and the Selling Shareholders shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Shares.
7. Conditions of Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Firm Shares on the Closing Date
and the Option Shares, if any, on the Option Closing Date, are subject to the
condition that all representations and warranties of the Company and the Selling
Shareholders contained herein are true and correct, at and as of the Closing
Date or the Option Closing Date, as the case may be, the condition that the
Company and the Selling Shareholders shall have performed all of their
respective covenants and obligations hereunder (to the extent performance of
such covenants and obligations are due at such times) and to the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the Regulations and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, or any part thereof shall have been issued and no proceedings
for that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall have
been complied with to the reasonable satisfaction of the Representatives.
(b) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of Maslon
Edelman Borman & Brand, LLP, counsel for the Company and the Selling
Shareholders, dated the Closing Date or the Option Closing Date, as the case may
be, addressed to the Underwriters, to the effect that:
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<PAGE> 19
(i) The Company is validly existing as a
corporation under the laws of its state of incorporation, with corporate power
and authority to own, lease, license and use its properties and conduct its
business as described in the Prospectus, and is duly qualified to transact
business and is in good standing in all jurisdictions in which the conduct of
its business or its ownership, lease, license or use of property requires such
qualification and the failure so to qualify would have a Material Adverse
Effect.
(ii) The Company has authorized and outstanding
capital stock as described in the Prospectus as of the date set forth therein.
The outstanding shares of the Company's capital stock have been duly authorized
and validly issued and are fully paid and nonassessable. The form of certificate
for the Shares is in due and proper form and complies with the requirements of
applicable state corporation laws. The Shares to be issued and sold by the
Company pursuant to this Agreement have been duly authorized and, when issued
and paid for as contemplated herein, will be validly issued, delivered, fully
paid and nonassessable. No preemptive right, co-sale right, registration right,
right of first refusal or other similar right of shareholders of the Company, or
of holders of warrants, options, convertible securities or other rights to
acquire shares of capital stock of the Company, exist with respect to any of the
Shares or the issue and sale thereof (i) pursuant to the terms of the Company's
charter or bylaws or (ii) to the knowledge of such counsel, pursuant to the
terms of any agreement or instrument to which the Company is a party or by which
the Company is bound. To the knowledge of such counsel, no rights to register
outstanding shares of the Company's capital stock, or shares issuable upon the
exercise of outstanding warrants, options, convertible securities or other
rights to acquire shares of such capital stock, exist which have not been
validly exercised or waived with respect to the Registration Statement. The
capital stock of the Company, including the Shares, conforms in all material
respects as to legal matters to the description thereof contained in the
Prospectus.
(iii) The Registration Statement has become
effective under the Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued under
the Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(iv) The Registration Statement, the Prospectus
and each amendment or supplement thereto comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder (except that such counsel need express no opinion as to the financial
statements and the notes thereto and related schedules and other financial data
included therein or omitted therefrom).
(v) The statements (A) in the Prospectus under
the captions "Management--Limitation of Liability and Indemnification,"
"Description of Securities," and "Shares Eligible for Future Sale" and (B) in
the Registration Statement in Items 14 and 15 insofar as such statements
constitute a summary of matters of law, are, in all material respects, accurate
summaries and fairly present the information required to be stated.
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<PAGE> 20
(vi) Such counsel does not know of any contracts,
agreements, documents or instruments required to be filed as exhibits to the
Registration Statement or described in the Registration Statement or the
Prospectus which are not so filed or described as required; and insofar as any
statements in the Registration Statement or the Prospectus constitute summaries
of any contract, agreement, document or instrument, such statements are, in all
material respects, accurate summaries and fairly present the information
required to be stated.
(vii) Such counsel knows of no legal or
governmental proceeding, pending or threatened, before any court or
administrative body or regulatory agency, to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or Prospectus and are not so described, or statutes or
regulations that are required to be described in the Registration Statement or
the Prospectus that are not so described as required.
(viii) The execution and delivery of this Agreement
and the consummation of the transactions herein contemplated do not and will not
conflict with or result in a violation of or default under the charter or bylaws
of the Company or any of its subsidiaries, or under any statute, permit,
judgment, decree, 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 (other than the state securities and
blue sky laws, as to which such counsel need express no opinion) and do not and
will not conflict with or result in a violation of or default under (except for
such conflicts, violations or defaults as would not have a Material Adverse
Effect) under any lease, license, contract, indenture, mortgage, loan agreement
or other agreement or other instrument or obligation known to such counsel 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 property or assets of the
Company or any of its subsidiaries is subject, except such agreements,
instruments or obligations with respect to which valid consents or waivers have
been obtained by the Company.
(ix) To such counsel's knowledge, neither the
Company nor any of its subsidiaries is in violation of, or in default under, its
charter or bylaws, or any statute, or any law, rule, regulation, order,
judgment, injunction, decree or authorization of any court or governmental or
administrative agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, or any indenture, mortgage, deed of
trust, loan agreement, lease, franchise, license 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 property
or assets of the Company or any of its subsidiaries is subject, which violation
or default would have a Material Adverse Effect.
(x) The Company has the corporate power and
authority to enter into this Agreement and to authorize, issue, sell and deliver
the Shares to be sold by the Company as contemplated hereby. This Agreement has
been duly and validly authorized, executed and delivered by the Company.
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<PAGE> 21
(xi) No approval, consent, order, authorization,
designation, declaration, qualification or filing by or with any judicial,
regulatory, administrative or other governmental body is necessary in connection
with the execution and delivery of this Agreement and the consummation of the
transactions herein contemplated (other than as may be required by state
securities and blue sky laws, as to which such counsel need express no opinion)
except such as have been obtained or made.
(xii) The Company is not, and immediately upon
completion of the sale of Shares contemplated hereby will not be, required to
register as an "investment company" under the Investment Company Act of 1940, as
amended.
(xiii) Although such counsel assumes no
responsibility for the factual accuracy or completeness of the statements
contained in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsections (ii) and (v) of this Section 7(b) and
on the basis of the procedures undertaken by such counsel (and relying as to
materiality to the extent such counsel deems appropriate upon opinions of
officers and other representatives of the Company), no facts have come to the
attention of such counsel that cause it to believe that the Registration
Statement and any amendments and supplements thereto, at the time they became
effective and as of the Closing Date or the Option Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or that the
Prospectus or any further amendment or supplement thereto, at the time it was
transmitted to the Commission for filing pursuant to Rule 424(b) and as of the
Closing Date and the Option Closing Date, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that such counsel need not express any opinion with
respect to the financial statements and supporting schedules and other financial
data included in the Registration Statement and the Prospectus.
(c) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of Maslon
Edelman Borman & Brand, LLP, counsel for each of the Selling Shareholders, dated
the Closing Date or the Option Closing Date, as the case may be, addressed to
the Underwriters, to the effect that:
(i) A Custody Agreement has been duly executed and
delivered by such Selling Shareholder and is the valid and binding agreement of
such Selling Shareholder.
(ii) This Agreement has been duly executed and
delivered by such Selling Shareholder.
(iii) The sale of the Shares to be sold by such Selling
Shareholder hereunder and the compliance by such Selling Shareholder with all of
the provisions of this Agreement and the Custody Agreement, and the consummation
of the transactions herein and therein contemplated, will not conflict with or
result in a breach or violation of any terms or
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<PAGE> 22
provisions of, or constitute a default under, any statute, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel to which such Selling Shareholder is a party or by which such
Selling Shareholder is bound or to which any of the property or assets of such
Selling Shareholder is subject, nor will such action result in any violation of
any order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over such Selling Shareholder or the property
of such Selling Shareholder.
(iv) No consent, approval, authorization or order of
any court or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the Shares to be
sold by such Selling Shareholder hereunder, except such consents, approvals,
authorizations or orders as have been validly obtained and are in full force and
effect, such as have been obtained under the Act, and such as may be required
under the state securities or blue sky laws in connection with the purchase and
distribution of such Shares by the Underwriters, as to which such counsel need
express no opinion.
(v) Such Selling Shareholder has full right, power
and authority to sell, assign, transfer and deliver the Shares to be sold by
such Selling Shareholder hereunder.
(vi) Upon delivery of the Shares being sold by such
Selling Shareholder and payment therefor, good and valid title to the Shares
being sold by such Selling Shareholder, free and clear of any claims, liens,
encumbrances, security interests or other adverse claims, will be transferred to
each of the several Underwriters who have purchased such Shares in good faith
and without notice of any such claim, lien, encumbrance, security interest or
other adverse claim within the meaning of the Uniform Commercial Code.
(d) The Representatives shall have received from Faegre &
Benson LLP, counsel for the Underwriters, an opinion dated the Closing Date or
the Option Closing Date, as the case may be, with respect to the incorporation
of the Company, the validity of the Shares, the Registration Statement, the
Prospectus, and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters.
(e) The Representatives shall have received on each of the
date hereof, the Closing Date and the Option Closing Date, as the case may be, a
signed letter, dated as of the date hereof, the Closing Date or the Option
Closing Date, as the case may be, in form and substance reasonably satisfactory
to the Representatives, from Grant Thornton LLP and Ernst & Young LLP, to the
effect that they are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the related rules and
regulations and containing statements and information of the type ordinarily
included in accountants'
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<PAGE> 23
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(f) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date or the Option Closing Date, as the case may be,
there shall not have been any change or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
shareholders' 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 your judgment, is material and adverse to the Company and
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at the Closing Date or the Option Closing
Date, as the case may be, on the terms and in the manner contemplated in the
Prospectus.
(g) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a certificate or
certificates of the chief executive officer and the chief financial officer of
the Company to the effect that, as of the Closing Date or the Option Closing
Date, as the case may be, each of them severally represents as follows:
(i) The Prospectus was filed with the Commission
pursuant to Rule 424(b) within the applicable period prescribed for such filing
by the Regulations and in accordance with Section 5(a) of this Agreement; no
stop order suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for such purpose have been initiated or are, to such
officer's knowledge, threatened by the Commission.
(ii) The representations and warranties of the Company
set forth in Section 1 of this Agreement are true and correct at and as of the
Closing Date or the Option Closing Date, as the case may be, and the Company has
performed all of its obligations under this Agreement to be performed at or
prior to the Closing Date or the Option Closing Date, as the case may be.
(h) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a certificate of the
Selling Shareholders pursuant to which the Selling Shareholders certify that
their representations and warranties set forth in this Agreement are true and
correct at and as of the Closing Date or the Option Closing Date, as the case
may be, and that they have performed all of their obligations under this
Agreement to be performed at or prior to the Closing Date or the Option Closing
Date, as the case may be.
(i) The Company and the Selling Shareholders shall have
furnished to the Representatives such further certificates and documents as the
Representatives may reasonably have requested.
(j) The Lock-Up Agreements shall have been delivered to the
Representatives prior to the date hereof and are, as of the Closing Date or the
Option Closing Date, as the case may be, in full force and effect.
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<PAGE> 24
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Representatives and to Faegre &
Benson LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 7
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Company of such termination in writing or
by telegram at or prior to the Closing Date or the Option Closing Date, as the
case may be. In such event, the Company and the Underwriters shall not be under
any obligation to each other (except to the extent provided in Sections 6 and 8
hereof).
8. Indemnification.
(a) The Company and the Selling Shareholders jointly and
severally agree to indemnify and hold harmless each Underwriter, each officer
and director thereof, and each person, if any, who controls any Underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) to which such Underwriter or such persons may became subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus or the
Prospectus, including any amendments or supplements thereto, or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, 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 Common Stock or the offering
contemplated hereby, and which is included as part of or referred to in any
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arising out of or based upon matters covered by clause (i) or (ii)
above, and will reimburse each Underwriter and each such officer, director and
controlling person for any legal or other expenses reasonably incurred by such
Underwriter or such officer, director or controlling person in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement, or omission or
alleged omission, made in the Registration Statement, any Preliminary Prospectus
or the Prospectus, including any amendments or supplements thereto, in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein; provided
further, that the Company and the Selling Shareholders shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission, made in a Preliminary Prospectus, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of
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<PAGE> 25
the Underwriters to the person asserting such loss, claim, damage or liability,
if required by law so to have been delivered, at or prior to the written
confirmation of the sale of Shares to such person, and if the Prospectus (as
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability, unless the failure to so deliver the Prospectus (as
amended or supplemented) is the result of noncompliance by the Company with the
first sentence of paragraph 5(d) of this Agreement. Notwithstanding the
provisions of this Section 8(a), any liability of the Selling Shareholders under
this Section 8(a) shall be limited to the amount of the proceeds received by the
Selling Shareholders.
(b) Each Underwriter agrees severally and not jointly to
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the Registration Statement, the Selling Shareholders
and each person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Company or any
such director, officer, Selling Shareholder or controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made, and
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer, Selling Shareholder or controlling person in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that each Underwriter will be liable
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity or contribution may be sought pursuant to this Section 8, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) or contribution provided for
in Section 8(d) shall be available with respect to a proceeding to any party who
shall fail to give notice of such proceeding as provided in this Section 8(c) if
the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the indemnifying
party or parties from any liability which it or they may have to the indemnified
party otherwise than on account of the provisions of Section 8(a) or (b). In
case any such proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume
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<PAGE> 26
the defense thereof, with counsel reasonably satisfactory to such indemnified
party and shall pay as incurred the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay promptly as incurred the reasonable
fees and expenses of the counsel retained by the indemnified party in the event
(i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and the indemnified party shall have reasonably
concluded that there may be a conflict between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it or other indemnified parties
which are different from or additional to those available to the indemnifying
party. It is understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm at any time for all
such indemnified parties. Such firm shall be designated in writing by the
Representatives and shall be reasonably satisfactory to the Company in the case
of parties indemnified pursuant to Section 8(a) and shall be designated in
writing by the Company and shall be reasonably satisfactory to the
Representatives in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a), or (b) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other from the offering
of the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Shareholders bear to
the total underwriting discounts and commissions received by the Underwriters,
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, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material
26
<PAGE> 27
fact relates to information supplied by the Company and the Selling Shareholders
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were 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 account of the equitable considerations
referred to above in this Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereto) referred to above in this Section
8(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter, the Selling Shareholders shall not be required to contribute
any amount in excess of the proceeds received by the Selling Shareholders, and
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Shareholder under
this Section 8 shall be in addition to any liability which the Company and the
Selling Shareholder may otherwise have, and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the
Underwriters may otherwise have.
9. Default by Underwriters. If on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter shall fail to purchase and pay
for the portion of the Shares which such Underwriter has agreed to purchase and
pay for on such date (otherwise than by reason of any default on the part of the
Company or a Selling Shareholder), you, as Representatives of the Underwriters,
shall use your best efforts to procure within 36 hours thereafter one or more of
the other Underwriters, or any others, to purchase from the Company and the
Selling Shareholders such amounts as may be agreed upon, and upon the terms set
forth herein, of the Firm Shares or Option Shares, as the case may be, which the
defaulting Underwriter or Underwriters failed to purchase. If the aggregate
number of Shares that the defaulting Underwriter or Underwriters agreed to
purchase shall not be purchased in accordance with the preceding sentence, the
Company shall have the right, within 36 hours next succeeding the 36-hour period
above referred to, to make arrangements with other underwriters or purchasers
satisfactory to you for purchase of such remaining Shares on the terms herein
set forth. If during such two 36-hour periods you, as Representatives, and the
Company shall not have procured such other Underwriters, or any others, to
purchase the Firm Shares or Option Shares, as the case may be, agreed to be
purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of Shares with respect to which such default shall occur does
not exceed 10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the other Underwriters shall be obligated, severally, in proportion to
the respective numbers of Firm Shares or Option
27
<PAGE> 28
Shares, as the case may be, which they are obligated to purchase hereunder, to
purchase the Firm Shares or Option Shares, as the case may be, which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of shares of Firm Shares or Option Shares, as the case may be,
with respect to which such default shall occur exceeds 10% of the Firm Shares or
Option Shares, as the case may be, covered hereby, the Company and the Selling
Shareholders or you as the Representatives of the Underwriters will have the
right, by written notice given within the next 36-hour period to the parties to
this Agreement, to terminate this Agreement without liability on the part of the
non-defaulting Underwriters or of the Company and the Selling Shareholders
except for expenses to be borne by the Company, the Selling Shareholders and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 9 (and assuming that this Agreement
is not terminated pursuant to the immediately preceding sentences), the Closing
Date or Option Closing Date, as the case may be, may be postponed for such
period, not exceeding seven days, as you, as Representatives, may determine in
order that the required changes in the Registration Statement or in the
Prospectus or in any other documents or arrangements may be effected. The term
"Underwriter" includes any person substituted for a defaulting Underwriter. Any
action taken under this Section 9 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. Notices. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or telegraphed
and confirmed as follows: if to the Underwriters, to Dain Rauscher Wessels, Dain
Bosworth Plaza, 60 South Sixth Street, Minneapolis, Minnesota 55402, Attention:
Jeffrey P. Greiner, with copies to Faegre & Benson LLP, 2200 Norwest Center, 90
South Seventh Street, Minneapolis, Minnesota 55402-3901, Attention: Steven C.
Kennedy, Esq.; if to the Company or Selling Shareholder, to IntraNet Solutions,
Inc., 8091 Wallace Road, Eden Prairie, Minnesota 55344, Attention: Robert F.
Olson, with copies to Maslon Edelman Borman & Brand, LLP, 3300 Norwest Center,
Minneapolis, Minnesota 55402, Attention: William M. Mower, Esq.
11. Termination. This Agreement may be terminated by you by notice to
the Company and the Selling Shareholders as follows:
(a) at any time prior to the Closing Date if any of the following
has occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change in or
affecting the condition, financial or otherwise, of the Company and its
subsidiaries taken as a whole or the business affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, (ii) any outbreak or escalation of hostilities or declaration of war
or national emergency after the date hereof or other national or international
calamity or crisis or change in economic or political conditions if the effect
of such outbreak, escalation, declaration, emergency, calamity, crisis or change
on the financial markets of the United States would, in your judgment, make the
offering or delivery of the Shares impracticable or inadvisable, (iii)
suspension of trading in securities on the New York Stock Exchange or the
American Stock Exchange or limitation on prices (other
28
<PAGE> 29
than limitations on hours or numbers of days of trading) for securities on
either such Exchange, or a halt or suspension of trading in securities generally
which are quoted on The Nasdaq National Market System or The Nasdaq SmallCap
Market, or (iv) declaration of a banking moratorium by either federal or New
York State authorities; or
(b) as provided in Sections 7 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company,
as to any obligation of the Underwriters to purchase the Option Shares, upon the
occurrence at any time prior to the Option Closing Date of any of the events
described in subparagraph (a) above or as provided in Sections 7 and 9 of this
Agreement.
12. Written Information. For all purposes under this Agreement
(including, without limitation, Section 1, Section 2, Section 3 and Section 8
hereof), the Company and the Selling Shareholders understand and agree with each
of the Underwriters that the following constitutes the only written information
furnished to the Company by or through the Representatives specifically for use
in preparation of the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto: (i) the per share "Public
offering price" and per share "Underwriting discounts and commissions" set forth
on the cover page of the Prospectus, and (ii) the information set forth under
the caption "Underwriting" in the Preliminary Prospectus and the Prospectus.
13. Successors. This Agreement has been and is made solely for the
benefit of and shall be binding upon the Underwriters, the Company, the Selling
Shareholders and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. The
term "successors" shall not include any purchaser of the Shares merely because
of such purchase.
14. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers or the Selling Shareholders and (c)
delivery of and payment for the Shares under this Agreement.
Each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality or unenforceability in such jurisdiction
or any provision hereof in any other jurisdiction.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
29
<PAGE> 30
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Minnesota.
30
<PAGE> 31
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholders and the several Underwriters in accordance with its terms.
Very truly yours,
IntraNet Solutions, Inc.
By: /s/Robert F. Olson
---------------------------------------------
Name: Robert F. Olson
---------------------------------------------
Its: President and Chief Executive Officer
---------------------------------------------
Selling Shareholders:
/s/ Robert F. Olson
---------------------------------------------
Robert F. Olson
/s/ Vernon J. Hanzlik
---------------------------------------------
Vernon J. Hanzlik
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
Dain Rauscher Incorporated
U.S. Bancorp Piper Jaffray Inc.
As Representatives of the several Underwriters
By Dain Rauscher Incorporated
By: /s/ Wade Massad
----------------------------------------------
Name: Wade Massad
--------------------------------------------
Its: Senior Managing Director
---------------------------------------------
31
<PAGE> 32
SCHEDULE A
SCHEDULE OF UNDERWRITERS
<TABLE>
<CAPTION>
NUMBER OF FIRM MAXIMUM NUMBER
UNDERWRITER SHARES TO BE PURCHASED OF OPTION SHARES
<S> <C> <C>
Dain Rauscher Wessels................................... 1,490,500 223,575
U.S. Bancorp Piper Jaffray Inc. ........................ 1,219,500 182,925
Banc of America Securities LLC ......................... 115,000 17,250
BancBoston Robertson Stephens Inc. ..................... 115,000 17,250
Hambrecht & Quist LLC .................................. 115,000 17,250
Morgan Stanley & Co. Incorporated ...................... 115,000 17,250
Advest, Inc. ........................................... 85,000 12,750
William Blair & Company, L.L.C. ........................ 85,000 12,750
Craig-Hallum Capital Group, Inc. ....................... 85,000 12,750
John G. Kinnard & Company, Incorporated ................ 85,000 12,750
McDonald Investments Inc., a KeyCorp Company ...........
85,000 12,750
Soundview Technology Group, Inc. ....................... 85,000 12,750
--------- -------
Total................................................ 3,680,000 552,000
========= =======
</TABLE>
<PAGE> 33
SCHEDULE B
<TABLE>
<CAPTION>
NUMBER OF MAXIMUM NUMBER
SELLER FIRM SHARES OF OPTION SHARES
<S> <C> <C>
IntraNet Solutions, Inc................................. 3,230,000 484,500
Selling Shareholders:
Robert F. Olson.................................. 375,000 56,250
Vernon J. Hanzlik............................... 75,000 11,250
--------- -------
Total................................................... 3,680,000 552,000
========= =======
</TABLE>
