EXHIBIT 1.1
DATED APRIL __, 1998
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MANHATTAN ASSOCIATES, INC.
3,000,000 shares
COMMON STOCK
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UNDERWRITING AGREEMENT
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MANHATTAN ASSOCIATES, INC.
Common Stock
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UNDERWRITING AGREEMENT
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April __, 1998
DEUTSCHE MORGAN GRENFELL INC.
HAMBRECHT & QUIST LLC
SOUNDVIEW FINANCIAL GROUP, INC.
As Representatives of the several Underwriters
c/o Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Dear Sirs:
Manhattan Associates, Inc. (the "Company"), a Georgia corporation and
the successor to Manhattan Associates Software, LLC, formerly known as Manhattan
Associates, LLC, a Georgia limited liability company ("Manhattan LLC"), and the
persons named in Schedule 2 hereto (the "Selling Stockholders") hereby confirm
their agreement with the several underwriters named in Schedule 1 hereto (the
"Underwriters"), for whom you have been duly authorized to act as
representatives (the one or more firms acting in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be references to the
Underwriters.
Section 1. Underwriting. Subject to the terms and conditions contained herein:
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(a) The Company proposes to issue and sell 3,000,000 shares of common
stock, par value $.01 per share (the "Common Stock"), of the Company, (the "Firm
Shares") to the several Underwriters. The Selling Stockholders propose to sell
not more than 450,000 shares of Common Stock (the "Option Shares" and, together
with the Firm Shares, the "Shares") to the several Underwriters if requested by
the Representatives as provided in Section 2(b) hereof.
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(b) Upon your authorization of the release of the Firm Shares, the
Underwriters propose to make a public offering (the "Offering") of the Firm
Shares upon the terms set forth in the Prospectus (as defined below) as soon
after the Registration Statement (as defined below) and this Agreement have
become effective as in the Representatives' sole judgment is advisable. As used
in this Agreement, the term "Original Registration Statement" means the
registration statement (File No. 333-47095) initially filed with the Securities
and Exchange Commission (the "Commission") relating to the Shares, as amended
through the time when it was or is declared effective, including all financial
schedules and exhibits thereto and including any information omitted therefrom
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"Securities Act"), and included in the Prospectus; the term "Rule 462(b)
Registration Statement" means any registration statement filed with the
Commission pursuant to Rule 462(b) under the Securities Act (including the
Registration Statement and any Preliminary Prospectus (as defined below) or
Prospectus incorporated therein at the time such Registration Statement becomes
effective); the term "Registration Statement" includes both the Original
Registration Statement and any Rule 462(b) Registration Statement; the term
"Preliminary Prospectus" means each prospectus subject to completion filed with
the Original Registration Statement or any amendment thereto (including the
prospectus subject to completion, if any, included in the Original Registration
Statement or any amendment thereto at the time it was or is declared effective);
the term "Prospectus" means:
(i) if the Company relies on Rule 434 under the Securities Act,
the Term Sheet (as defined below) relating to the Shares that is
first filed pursuant to Rule 424(b)(7) under the Securities Act,
together with the Preliminary Prospectus identified therein that
such Term Sheet supplements;
(ii) if the Company does not rely on Rule 434 under the
Securities Act, the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Securities Act;
(iii) if the Company does not rely on Rule 434 under the
Securities Act and if no prospectus is required to be filed
pursuant to Rule 424(b) under the Securities Act, the prospectus
included in the Registration Statement; or
(iv) for purposes of the representations and warranties contained
in Section 5 hereof, if the prospectus is not in existence, the
most recent Preliminary Prospectus;
and the term "Term Sheet" means any term sheet that satisfies the
requirements of Rule 434 under the Securities Act. Any reference herein to
the "date" of a Prospectus that includes a Term Sheet shall mean the date
of such Term Sheet.
Section 2. Purchase and Closing.
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(a) On the basis of the representations, warranties, agreements and
covenants
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herein contained and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company at
a purchase price of $___ per Share (the "Purchase Price"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule 1 hereto.
Firm Shares shall be registered by Chase Mellon Shareholder Services in the name
of the nominee of the Depository Trust Company ("DTC"), Cede & Co. ("Cede &
Co."), and credited to the accounts of such of its participants as the
Representatives shall request, upon notice to the Company at least 48 hours
prior to the First Closing Date (as defined below), with any transfer taxes
payable in connection with the transfer of the Firm Shares to the Underwriters
duly paid, against payment by or on behalf of the Underwriters to the account of
the Company of the aggregate Purchase Price therefor by wire transfer in
immediately available funds. Delivery or registry of and payment for the Firm
Shares shall be made at the offices of Morris, Manning & Martin, L.L.P., 1600
Atlanta Financial Center, 3343 Peachtree Road, N.E., Atlanta, GA 30326 at 9:30
A.M., New York City time, on April ___, 1998 on the [third] [fourth] full
business day following the date of this Agreement, or at such other place, time
or date as the Representatives and the Company may agree upon. Such time and
date of delivery against payment are herein referred to as the "First Closing
Date", and the implementation of all the actions described in this Section 2(a)
is herein referred to as the "First Closing".
(b) For the purpose of covering any over-allotments in connection with
the distribution and sale of the Firm Shares as contemplated by the Prospectus,
the Selling Stockholders hereby grant to the several Underwriters an option to
purchase, severally and not jointly, the Option Shares. The purchase price to
be paid for any Option Shares shall be the same as the Purchase Price for the
Firm Shares set forth above in paragraph (a) of this Section 2. The option
granted hereby may be exercised as to all or any part of the Option Shares from
time to time within thirty days after the date of the Prospectus (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange and the Nasdaq Stock Market's
National Market (the "Nasdaq National Market") are open for trading). The
Underwriters shall not be under any obligation to purchase any of the Option
Shares prior to the exercise of such option. The Representatives may from time
to time exercise the option granted hereby by giving notice in writing or by
telephone (confirmed in writing) to the Selling Stockholders setting forth the
aggregate number of Option Shares as to which the several Underwriters are then
exercising the option and the date and time for delivery or registry of and
payment for such Option Shares. Any such date of delivery or registry shall be
determined by the Representatives but shall not be earlier than two business
days or later than five business days after such exercise of the option and, in
any event, shall not be earlier than the First Closing Date. The time and date
set forth in such notice, or such other time or date as the Representatives and
the Selling Stockholders may agree upon or as the Representatives may determine
pursuant to Section 2(a) hereof, is herein called an "Option Closing Date" with
respect to such Option Shares, and the implementation of all the actions
described in this Section 2(b) is herein referred to as the "Option Closing".
As used in this Agreement, the term "Closing Date" means either the First
Closing Date or any Option Closing Date, as applicable, and the term "Closing"
means either the First Closing or any Option Closing, as applicable. If the
option is exercised as to all or any portion of the Option
Shares, then either one or more certificates in definitive form for such Option
Shares shall be delivered or, if such
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Option Shares are to be held through DTC, such Option Shares shall be registered
and credited, on the related Option Closing Date in the same manner, and upon
the same terms and conditions, set forth in paragraph (a) of this Section 2,
except that reference therein to the Firm Shares and the First Closing Date
shall be deemed, for purposes of this paragraph (b), to refer to such Option
Shares and Option Closing Date, respectively. Upon exercise of the option as
provided herein, the Selling Stockholders shall become obligated to sell to each
of the several Underwriters, and, on the basis of the representations,
warranties, agreements and covenants herein contained and subject to the terms
and conditions herein set forth, each of the Underwriters (severally and not
jointly) shall become obligated to purchase from the Selling Stockholders the
same percentage of the total number of the Option Shares as to which the several
Underwriters are then exercising the option as such Underwriter is obligated to
purchase of the aggregate number of Firm Shares, as adjusted by the
Representatives in such manner as they deem advisable to avoid fractional
shares. If the option granted hereby is exercised for less than the maximum
number of Option Shares, the respective number of Option Shares to be sold by
each of the Selling Stockholders listed on Schedule 2 hereto shall be determined
on a pro rata basis in accordance with the number of shares set forth opposite
their names on Schedule 2 hereto, as adjusted by the Representatives in such
manner as they deem advisable to avoid fractional shares.
(c) The Company and the Selling Stockholders hereby acknowledge that
the payment of monies pursuant to Section 2(a) hereof (a "Payment") by or on
behalf of the Underwriters of the aggregate Purchase Price for any Shares does
not constitute closing of a purchase and sale of the Shares. Only execution and
delivery, by facsimile or otherwise, of a receipt for Shares by the Underwriters
indicates completion of the closing of a purchase of the Shares from the Company
and the Selling Stockholders. Furthermore, in the event that the Underwriters
make a Payment to the Company and the Selling Stockholders prior to the
completion of the closing of a purchase of Shares, the Company and the Selling
Stockholders hereby acknowledge that until the Underwriters execute and deliver
such receipt for the Shares, the Company and the Selling Stockholders will not
be entitled to the Payment and shall return the Payment to the Underwriters as
soon as practicable (by wire transfer of same-day funds) upon demand. In the
event that the closing of a purchase of Shares is not completed and the Payment
is not returned by the Company and the Selling Stockholders to the Underwriters
on the same day the Payment was received by the Company and the Selling
Stockholders, the Company and the Selling Stockholders agree to pay to the
Underwriters in respect of each day the Payment is not returned by them, in
same-day funds, interest on the amount of such Payment in an amount representing
the Underwriters' cost of financing as reasonably determined by the
Representatives, pro rata in proportion to the percentage of such Payment
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received by each.
(d) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make Payment on behalf
of any Underwriter or Underwriters for any of the Shares to be purchased by such
Underwriter or Underwriters. No
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such Payment shall relieve such Underwriter or Underwriters from any of its or
their obligations hereunder.
Section 3. Covenants.
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(a) The Company covenants and agrees with the several Underwriters
that:
(i) The Company will:
(x) use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as
promptly as possible. If required, the Company will file
the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the
Commission in the manner and within the time period required
by Rules 434 and 424(b) under the Securities Act. During
any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act, the
Company (I) will comply with all requirements imposed upon
it by the Securities Act and the rules and regulations of
the Commission thereunder to the extent necessary to permit
the continuance of sales of or dealings in the Shares in
accordance with the provisions hereof and of the Prospectus,
as then amended or supplemented, and (II) will not file with
the Commission the Prospectus, Term Sheet, any amendment or
supplement to such Prospectus or Term Sheet, any amendment
to the Registration Statement (including the amendment
referred to in the second sentence of Section 5(a)(i)
hereof) or any Rule 462(b) Registration Statement unless the
Representatives previously have been advised of, and
furnished with a copy within a reasonable period of time
prior to, the proposed filing and the Representatives shall
have given their consent to such filing. The Company will
prepare and file with the Commission, in accordance with the
rules and regulations of the Commission, promptly upon
request by the Representatives or counsel for the
Underwriters, any amendments to the Registration Statement
or amendments or supplements to the Prospectus that may be
necessary or advisable in connection with the distribution
of the Shares by the several Underwriters. The Company will
advise the Representatives, promptly after receiving notice
thereof, of the time when the Registration Statement or any
amendment thereto has been filed or declared effective or
the Prospectus or Term Sheet or any amendment or supplement
thereto has been filed and will provide evidence
satisfactory to the Representatives of each such filing or
effectiveness.
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(y) without charge, provide (I) to the Representatives and
to counsel for the Underwriters, an executed and a conformed
copy of the Original Registration Statement and each
amendment thereto or any Rule 462(b) Registration Statement
(in each case including exhibits thereto), (II) to each
other Underwriter, a conformed copy of the Original
Registration Statement and each amendment thereto or any
Rule 462(b) Registration Statement (in each case without
exhibits thereto), and (III) so long as a prospectus
relating to the Shares is required to be delivered under the
Securities Act, as many copies of each Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto as the Representatives may reasonably request.
Without limiting the application of clause (III) of the
preceding sentence, the Company, not later than (A) 9:00
A.M., New York City time, on the business day following the
date of determination of the public offering price, if such
determination occurred at or prior to 12:00 noon, New York
City time, on such date or (B) 6:00 P.M., New York City
time, on the business day following the date of
determination of the public offering price, if such
determination occurred after 12:00 noon, New York City time,
on such date, will deliver to the Underwriters, without
charge, as many copies of the Prospectus and any amendment
or supplement thereto as the Representatives may reasonably
request for purposes of confirming orders that are expected
to settle on the First Closing Date.
(z) advise the Representatives, promptly after receiving
notice or obtaining knowledge thereof, of (I) the issuance
by the Commission of any stop order suspending the
effectiveness of the Original Registration Statement or any
amendment thereto or any Rule 462(b) Registration Statement
or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, (II) the suspension of the qualification
of the Shares for offering or sale in any jurisdiction,
(III) the institution, threatening or contemplation of any
proceeding for any purpose identified in the preceding
clause (I) or (II), or (IV) any request made by the
Commission for amending the Original Registration Statement
or any Rule 462(b) Registration Statement, for amending or
supplementing the Prospectus or for additional information.
The Company will use its best efforts to prevent the
issuance of any such stop order and, if any such stop order
is issued, to obtain the withdrawal thereof as promptly as
possible.
(ii) The Company will arrange for the qualification of the Shares
for offering and sale in each jurisdiction as the Representatives
shall designate including, but not limited to, pursuant to
applicable state securities ("Blue Sky") laws of certain states
of the United States of America or other U.S.
jurisdictions, and the Company shall maintain such qualifications
in effect
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for so long as may be necessary in order to complete the
placement of the Shares; provided, however, that the Company
shall not be obliged to file any general consent to service of
process or to qualify as a foreign corporation or as a securities
dealer in any jurisdiction or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(iii) If, at any time prior to the final date when a prospectus
relating to the Shares is required to be delivered under the
Securities Act, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if for any other reason it shall be necessary at
any time to amend the Registration Statement or amend or
supplement the Prospectus to comply with the Securities Act or
the rules or regulations of the Commission thereunder or
applicable law, the Company will promptly notify the
Representatives thereof and will promptly, at its own expense,
but subject to the second sentence of Section 3(a)(i)(x) hereof:
(x) prepare and file with the Commission an amendment to the
Registration Statement or amendment or supplement to the
Prospectus which will correct such statement or omission or
effect such compliance; and (y) supply any amended Registration
Statement or amended or supplemented Prospectus to the
Underwriters in such quantities as the Underwriters may
reasonably request.
(iv) The Company will make generally available to the Company's
securityholders and to the Representatives as soon as practicable
an earnings statement that satisfies the provisions of Section
11(a) of the Securities Act, including Rule 158 thereunder.
(v) The Company will apply the net proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(vi) The Company will not, and will not allow any subsidiary to,
publicly announce any intention to, and will not itself, and will
not allow any subsidiary to, without the prior written consent of
the Representatives, on behalf of the Underwriters, (x) 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 shares of Common Stock or
any securities convertible into, or exercisable or exchangeable
for, Common Stock, or (y) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic
consequences of ownership of the shares of Common Stock or
securities convertible into, or exercisable or
exchangeable for, shares of Common Stock (whether any such
transaction
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described in clause (x) or (y) above is to be settled by delivery
of shares of Common Stock or such other securities, in cash or
otherwise), for a period beginning from the date hereof and
continuing to and including the date 180 days after the date
hereof, except pursuant to this Agreement and other than with
respect to shares of Common Stock (or any securities convertible
into or exchangeable for shares of Common Stock) issued pursuant
to any employee benefit plans, qualified stock option plans or
other employee compensation plans which are disclosed in the
Prospectus.
(vii) Neither the Company nor any of its affiliates, nor any
person acting on behalf of any of them will, directly or
indirectly, (x) take any action designed to cause or to result
in, or that has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of
the Shares or (y) (I) sell, bid for, purchase, or pay anyone any
compensation for soliciting purchases of, the Shares or (II) pay
or agree to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(viii) During a period of ninety (90) days after the date
hereof, the Company will not file a registration statement
registering shares under any employee benefit plans, qualified
stock option plans or other employee compensation plans.
(ix) The Company will obtain the agreements described in Section
7(i) hereof prior to the First Closing Date.
(x) If at any time during the 25-day period after the
Registration Statement becomes effective or during the period
prior to any Closing Date, any rumor, publication or event
relating to or affecting the Company shall occur as a result of
which in the Representatives' sole judgment the market price of
the Shares has been or is likely to be materially affected
(regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus), the
Company will, after notice from the Representatives advising the
Company to the effect set forth above, forthwith prepare, consult
with the Representatives concerning the substance of, and
disseminate a press release or other public statement reasonably
satisfactory to the Representatives, responding to or commenting
on such rumor, publication or event.
(xi) If the Company elects to rely on Rule 462(b), the Company
shall both file the Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable
fees in accordance with Rule 111 promulgated under the Securities
Act by the earlier of (x) 10:00 P.M. New York City time on the
date of this Agreement and (y) the time confirmations are sent or
given, as specified by Rule 462(b)(2) under the Securities Act.
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(xii) The Company will cause the Shares to be duly included for
quotation on the Nasdaq National Market prior to the First
Closing Date. The Company will ensure that the Shares remain
included for quotation on the Nasdaq National Market following
the First Closing Date.
(xiii) In connection with the transfer of all assets and
liabilities of Manhattan LLC to the Company, the Company will
amend the existing, or obtain a new, INS Form I-9 for each alien
employee working for the Company pursuant to a H-1B, non-
immigrant work permitted visa within the time requirements of all
applicable immigration laws.
(b) Each Selling Stockholder covenants and agrees with the several
Underwriters that:
(i) It will not, and no person acting on behalf of such Selling
Stockholder will, directly or indirectly, (x) take any action
designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or (y) (I)
sell, bid for, purchase, or pay anyone any compensation for
soliciting purchases of, the Shares or (II) pay or agree to pay
to any person any compensation for soliciting another to purchase
any other securities of the Company (except for the sale of
Shares by the Selling Stockholders under this Agreement).
(ii) It will not, and will not allow any subsidiary to, publicly
announce any intention to, and will not itself, and will not
allow any subsidiary to, without the prior written consent of
Deutsche Morgan Grenfell Inc. ("DMG") on behalf of the
Underwriters, (x) offer, pledge, sell, offer to sell, contract to
sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or
indirectly, any of the shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, Common
Stock, or (y) enter into any swap or other agreement or any
transaction that transfers, in whole or in part, 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 (x) or (y) above is to be settled
by delivery of 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 person on the date hereof or hereafter
acquired, for a period beginning from the date hereof and
continuing to and including the
date 180 days after the date hereof; provided, however, that such
Selling
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Stockholder may, without the prior written consent of DMG on
behalf of the Underwriters, transfer shares of Common Stock or
such other securities to one or more members of such Selling
Stockholder's immediate family or to trusts for the benefit of
members of such Selling Stockholder's immediate family or in
connection with bona fide gifts, provided that any transferee
agrees in writing as a condition precedent to such transfer to be
bound by the transfer restrictions described above, and there
shall be no further transfer of any shares of Common Stock or
such other securities, except in accordance with this Agreement.
Section 4. Expenses.
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(a) The Company shall bear and pay all costs and expenses incurred
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 9 hereof, including: (i) fees and expenses of
preparation, issuance and delivery of this Agreement to the Underwriters; (ii)
the fees and expenses of its counsel, accountants and any other experts or
advisors retained by the Company; (iii) the costs of delivering and distributing
the Power of Attorney and Custody Agreements (as defined below) and the fees and
expenses of the Custodian (as defined below) (and any other Attorney-in-Fact (as
defined below)); (iv) fees and expenses incurred in connection with the
registration of the Shares under the Securities Act and the preparation and
filing of the Registration Statement, the Prospectus and all amendments and
supplements thereto; (v) the printing and distribution of the Prospectus and any
Preliminary Prospectus and the printing and production of all other documents
connected with the Offering (including this Agreement and any other related
agreements); (vi) expenses related to the qualification of the Shares under the
state securities or Blue Sky laws, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky memoranda; (vii) the filing fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. (the "NASD"), including the fees and
disbursements of counsel for the Underwriters in connection therewith; (viii)
all expenses arising from the quoting of the Shares on the Nasdaq National
Market; (ix) all arrangements relating to the preparation, issuance and delivery
to the Underwriters of any certificates evidencing the Shares, including
transfer agent's and registrar's fees; (x) the costs and expenses of the
"roadshow" and any other meetings with prospective investors in the Shares
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters); and (xi) the costs and expenses of advertising
relating to the Offering (other than as shall have been specifically approved by
the Representatives to be paid for by the Underwriters).
(b) The Selling Stockholders shall bear and pay all costs and expenses
incurred incident to the performance of their respective obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 9 hereof, including: (i) any
stamp duties, capital duties and stock transfer taxes, if any, payable upon the
sale of the Shares of such Selling Stockholders to the Underwriters and (ii) the
fees and disbursements of their respective counsel, accountants and other
advisors.
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Section 5. Representations and Warranties.
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(a) As a condition of the obligation of the Underwriters to underwrite
and pay for the Shares, the Company and the Selling Stockholders jointly and
severally represent and warrant to, and agree with, each of the several
Underwriters as follows:
Registration Statement and Prospectus
(i) The Original Registration Statement, including the
Preliminary Prospectus, has been filed by the Company with the
Commission under the Securities Act, and one or more amendments to
such Registration Statement may have been so filed. After the
execution of this Agreement, the Company will file with the Commission
either (x) if such Registration Statement, as it may have been
amended, has been declared by the Commission to be effective under the
Securities Act, either (I) if the Company relies on Rule 434 under the
Securities Act, a Term Sheet relating to the Shares that shall
identify the Preliminary Prospectus that it supplements containing
such information as is required or permitted by Rules 434, 430A and
424(b) under the Securities Act or (II) if the Company does not rely
on Rule 434 under the Securities Act, a prospectus in the form most
recently included in an amendment to such Registration Statement (or,
if no such amendment shall have been filed, in such Registration
Statement), with such changes or insertions as are required by Rule
430A under the Securities Act or permitted by Rule 424(b) under the
Securities Act, and in the case of either clause (I) or (II) of this
sentence, as have been provided to and approved by the Representatives
prior to the execution of this Agreement, or (y) if such Registration
Statement, as it may have been amended, has not been declared by the
Commission to be effective under the Securities Act, an amendment to
such Registration Statement, including a form of prospectus, a copy of
which amendment has been furnished to and approved by the
Representatives prior to the execution of this Agreement. The Company
may also file a Rule 462(b) Registration Statement with the Commission
for the purpose of registering certain additional Shares, which
registration shall be effective upon filing with the Commission.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any
Preliminary Prospectus was filed with the Commission, it (x) contained
all statements required to be stated therein in accordance with, and
complied in all material respects with the requirements of, the
Securities Act and the rules and regulations of the Commission
thereunder and (y) did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective, it (I) contained or
will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (II) did not or will not
contain any untrue
11
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. When the Prospectus or any Term Sheet that is
a part thereof or any amendment or supplement to the Prospectus is
filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or such amendment or supplement is not required to be so
filed, when the Registration Statement or the amendment thereto
containing the Prospectus or such amendment or supplement to the
Prospectus was or is declared effective) and on the Closing Date, the
Prospectus, as amended or supplemented at any such time, (A) contained
or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (B) did not or will not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The foregoing provisions of this paragraph (ii) do not
apply to (x) statements or omissions made in any Preliminary
Prospectus, the Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein
and (y) statements or omissions made in any Preliminary Prospectus,
the Registration Statement or any amendment thereto that is corrected
in the Prospectus (or any amendment or supplement thereto) where
delivery of the Prospectus (as amended or supplemented) was required
by the Securities Act.
(iii) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement is not effective, (x) the Company
will file a Rule 462(b) Registration Statement in compliance with, and
that is effective upon filing pursuant to, Rule 462(b) and (y) the
Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 under the
Securities Act, or the Commission has received payment of such filing
fee.
(iv) If the Company has elected to rely on Rule 434 under the
Securities Act, the Prospectus is not "materially different", as such
term is used in Rule 434, from the prospectus included in the
Registration Statement at the time of its effectiveness or an
effective post-effective amendment thereto (including such information
that is permitted to be omitted pursuant to Rule 430A under the
Securities Act).
(v) The Company has not distributed and, prior to the later of
(x) any Closing Date and (y) the completion of the distribution of the
Shares, will not distribute any offering material in connection with
the Offering other than the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto.
(vi) Subsequent to the respective dates as of which information
12
is given in the Registration Statement and the Prospectus, (x) the
Company and its subsidiaries, taken as a whole, have not incurred any
material liability or obligation, direct or contingent, nor entered
into any material transaction not in the ordinary course of business;
(y) the Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (z) there has not
been any material change in the capital stock, short-term or long-term
debt of the Company and its subsidiaries, taken as a whole, except in
each case as described in or contemplated by the Prospectus.
The Shares
(vii) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus. All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable, have been issued
in compliance with all applicable federal, state and other applicable
securities laws and were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase such
securities. The Shares have been duly authorized by all necessary
corporate action of the Company and, after payment therefor in
accordance herewith, will be validly issued, fully paid and
nonassessable at the Closing Date. No holders of outstanding shares
of capital stock of the Company are entitled as such to any preemptive
or other rights to subscribe for any of the Shares, and no holder of
securities of the Company has any right which has not been fully
exercised or waived to require the Company to register the offer or
sale of any securities owned by such holder under the Securities Act
in the Offering contemplated by this Agreement.
(viii) Except as disclosed in the Prospectus, there are no
outstanding (x) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of
the Company or any such subsidiary, (y) warrants, rights or options to
subscribe for or purchase from the Company or any such subsidiary any
such capital stock or any such convertible or exchangeable securities
or obligations, or (z) contracts, arrangements, commitments or other
obligations of the Company or any such subsidiary to issue any shares
of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options. Without
limiting the generality of the foregoing, except as disclosed in the
Prospectus, there is no basis upon which any person (except as
disclosed to the Underwriters as shareholders of the Company) may
claim to be in any way the record or beneficial owner of, or to be
entitled to acquire (of record or beneficially), any shares of capital
stock or other equity securities of the Company, and no person has
made or threatened to make, or, to the Company's and Selling
Stockholders' knowledge, will in the future make, any such claim. In
addition, except as disclosed in the Prospectus, the Company has no
obligation (contingent or otherwise) to purchase, redeem or otherwise
acquire any of its shares of capital stock or any interests therein or
to pay any dividend or
13
make any distribution in respect thereof.
(ix) Except for the shares of capital stock of each of the
subsidiaries owned by the Company and such subsidiaries, neither the
Company nor any such subsidiary owns any shares of stock or any other
equity securities of any corporation or has any equity interest in any
firm, partnership, association or other entity, except as described in
or contemplated by the Prospectus.
Listing
(x) All of the Shares have been duly authorized and accepted for
quotation on the Nasdaq National Market, subject to official notice of
issuance.
Market manipulation
(xi) Neither the Company nor any of its affiliates, nor any
person acting on behalf of any of them has, directly or indirectly,
(x) taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares, or (y) since
the filing of the Original Registration Statement (I) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases
of, the Shares or (II) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities
of the Company.
Corporate power and authority
(xii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the law of its
jurisdiction of incorporation with full power and authority to own,
lease and operate its properties and assets and conduct its business
as described in the Prospectus, is duly qualified to transact business
and is in good standing in each jurisdiction in which its ownership,
leasing or operation of its properties or assets or the conduct of its
business requires such qualification, except where the failure to be
so qualified does not amount to a material liability or disability to
the Company and its subsidiaries, taken as a whole, and has full power
and authority to execute and perform its obligations under this
Agreement; each subsidiary of the Company is a corporation duly
incorporated and validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and is duly
qualified to transact business and is in good standing in each
jurisdiction in which its
ownership, leasing or operation of its properties or assets or the
conduct of its business requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Company and its subsidiaries, taken as a whole, and
each has full power and authority to own, lease and operate its
properties and assets and conduct its
14
business as described in the Registration Statement and the
Prospectus; all of the issued and outstanding shares of capital stock
of each of the Company's subsidiaries have been duly authorized and
are fully paid and nonassessable and are owned beneficially by the
Company free and clear of any security interests, liens, encumbrances,
equities or claims.
(xiii) The execution and delivery of this Agreement and the
issuance and sale of the Shares have been duly authorized by all
necessary corporate action of the Company, and this Agreement has been
duly executed and delivered by the Company and is the legal, valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms.
(xiv) The issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (x)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained or made or such as may be required by the state
securities or Blue Sky laws of the various states of the United States
of America or other U.S. jurisdictions in connection with the offer
and sale of the Shares by the Underwriters, or (y) conflict with or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
lease 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 or any of their respective properties are bound, or the
charter documents, limited liability company operating agreements or
by-laws of the Company or any of its subsidiaries, or any statute or
any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company or
any of its subsidiaries.
(xv) The Company is not, and will conduct its operations in a
manner so that it continues not to be, an "investment company" and,
after giving effect to the Offering and the application of the
proceeds therefrom, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
Title, licenses and consents
(xvi) The Company and each of its subsidiaries have good and
marketable title in fee simple to all items of real property and
marketable title to all personal property owned by each of them, in
each case free and clear of any security interests, liens,
encumbrances, equities, claims and other defects, except such as do
not materially and adversely affect the value of such property and do
not interfere with the use made or proposed to be made of such
property by the Company or such subsidiary, and any real property and
buildings held under lease by the Company or any such subsidiary are
held under valid, subsisting
15
and enforceable leases, with such exceptions as are not material and
do not interfere with the use made or proposed to be made of such
property and buildings by the Company or such subsidiary, in each case
except as described in or contemplated by the Prospectus.
(xvii) Except as disclosed in the Prospectus, the Company and
each of its subsidiaries have the right to use all trademarks, trade
names, trade secrets, servicemarks, inventions, patent rights, mask
works, copyrights, licenses, software code, audiovisual works,
formats, algorithms and underlying data, and the Company and each of
its subsidiaries have all required approvals and governmental
authorizations now used in, or which are necessary for fulfillment of
their respective obligations or the conduct of their respective
businesses as now conducted or proposed to be conducted as described
in the Prospectus; the expiration of any trademarks, trade names,
trade secrets, servicemarks, inventions, patent rights, mask works,
copyrights, licenses, approvals or governmental authorizations would
not have a material adverse effect on the condition (financial or
otherwise), earnings, properties, business affairs or business
prospects, stockholders' equity, net worth or results of operations of
the Company; and neither the Company nor any of its subsidiaries is
infringing any trademark, trade name rights, patent rights, mask
works, copyrights, licenses, trade secret, servicemarks or other
similar rights of others, and there is no claim being made against the
Company or any of its subsidiaries regarding trademark, trade name,
patent, mask work, copyright, license, trade secret or other
infringement or assertion of intellectual property rights which could
have a material adverse effect on the earnings, properties, business
affairs or business prospects, stockholders' equity, net worth or
results of operations of the Company. The Company has agreements in
place with each employee, consultant or other person or party engaged
by the Company or any subsidiary sufficient to enable the Company and
any subsidiary to fulfill their contractual and regulatory obligations
and to conduct their respective businesses as now conducted or
proposed to be conducted as described in the Prospectus and providing
for the assignment to the Company of all intellectual property and
exploitation rights in the work performed and the protection of the
trade secrets and confidential information of the Company, each of its
subsidiaries and of third parties. Except as disclosed in the
Prospectus, the terms and conditions in the Company's standard form
end-user License Agreement attached as Exhibit [___] to the
Registration Statement represent all of the material terms and
conditions under which the Company or its subsidiaries license their
computer software to end-users. The Company's and its subsidiaries'
computer software (the "Software") is "Millennium Compliant". For the
purposes of this Agreement "Millennium Compliant" means: (a) the
functions, calculations, and other computing processes of the Software
(collectively, "Processes") perform in an accurate manner regardless
of the date in time on which the Processes are actually performed and
regardless of the date input to the Software, and whether or not the
dates are affected by leap years; (b) the Software can accept, store,
sort, extract, sequence, and otherwise manipulate date inputs and date
16
values, and return and display date values, in an accurate manner
regardless of the dates used or format of the date input; (c) the
Software will function without interruptions caused by the date in
time on which the Processes are actually performed or by the date
input to the Software; (d) the Software accepts and responds to four
(4) digit year date input in a manner that resolves any ambiguities as
to the century in an accurate manner; and (e) the Software displays,
prints and provides electronic output of date information in ways that
are unambiguous as to the determination of the century.
(xviii) The Company and its subsidiaries possess all consents,
licenses, certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor
any such subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a materially
adverse effect on or constitute a materially adverse change in, or
constitute a development involving a prospective materially adverse
effect on or change in, the condition (financial or otherwise),
earnings, properties, business affairs or business prospects, net
worth or results of operations of the Company or any of its
subsidiaries, taken as a whole, except as described in or contemplated
by the Prospectus.
Financial statements
(xix) Arthur Andersen, LLP, who have certified certain financial
statements of the Company and its subsidiaries and delivered their
report with respect to the audited financial statements and schedules
included in the Registration Statement and the Prospectus, are
independent public accountants as required by the Securities Act and
the applicable rules and regulations thereunder.
(xx) The financial statements and schedules of the Company and
its subsidiaries included in the Registration Statement and the
Prospectus were prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout the
periods involved (except as otherwise noted therein) and they present
fairly the financial condition of the Company as at the dates at which
they were prepared and the results of operations of the Company in
respect of the periods for which they were prepared.
Internal Accounting Controls
(xxi) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (w) transactions are executed in accordance with
management's general or specific authorizations; (x) transactions are
recorded as necessary to permit preparation of financial statements in
17
conformity with GAAP and to maintain asset accountability; (y) access
to assets is permitted only in accordance with management's general or
specific authorization; and (z) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
Litigation
(xxii) No legal or governmental proceedings or investigations
are pending or threatened to which the Company or any of its
subsidiaries is a party or to which the property of the Company or any
of its subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not described
therein; and no statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described therein or filed as required.
Dividends and Distributions
(xxiii) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company,
making any other distribution on such subsidiary's capital stock,
repaying to the Company any loans or advances to such subsidiary from
the Company or transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, and the
Company is not currently prohibited, directly or indirectly, from
paying any dividends or making any other distribution on its capital
stock, in each case except as described in or contemplated by the
Prospectus.
Taxes
(xxiv) The Company and each of its subsidiaries has filed all
foreign, federal, state and local tax returns that are required to be
filed or has requested extensions thereof (except in any case in which
the failure so to file would not have a materially adverse effect on
the Company and its subsidiaries, taken as a whole) and the Company
and each of its subsidiaries has paid all taxes required to be paid by
it and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in
good faith or as described in or contemplated by the Prospectus.
(xxv) All of the assets and liabilities of the Company (other
than the proceeds of the sale of securities by the underwriters
pursuant to this Agreement) were transferred to the Company by
Manhattan LLC. The assets and liabilities so transferred (the
"Transferred Property") consist solely of all of the assets and
18
liabilities of Manhattan LLC. The transfer of the Transferred
Property to the Company will qualify as a tax-free incorporation under
Section 351 of the Code; and as a result thereof and of the subsequent
liquidation of Manhattan LLC and its wholly-owned subsidiary
Performance Analysis Corporation ("PAC"), except as described in the
Prospectus, the Company will neither (a) recognize income for federal,
foreign, state or local tax purposes, nor (b) succeed to any federal,
foreign, state or local tax liability of any other entity or person
other than Manhattan LLC and PAC, whether by reason of transferee
liability or otherwise. Under no circumstances will the Company
succeed to any federal, foreign, state or local tax liability of
Pegasys Systems Incorporated, whether by reason of transferee
liability or otherwise.
Insurance
(xxvi) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such 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 materially and adversely affect the
condition (financial or otherwise), earnings, properties, business
affairs or business prospects, net worth or results of operations of
the Company or any of its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus.
Pension and Labor
(xxvii) The Company and each of its subsidiaries is in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company would have any liability; the Company and each of
its subsidiaries has not incurred and does not expect to incur
liability under (x) Title IV of ERISA with respect to termination of,
or withdrawal from, any "pension plan" or (y) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and
each "pension plan" for which the Company or any of its subsidiaries
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
19
(xxviii) The Company is in compliance with all applicable
provisions of the Immigration and Nationality Act of 1990, as amended
(the "INA"), and regulations published pursuant thereto by the
Immigration and Naturalization Service (the "INS"), the United States
Departments of Justice, Labor, State and Health and Human Services,
and the United States Information Agency (collectively, the
"Immigration Laws"); the Company: (a) employs only aliens who are
properly authorized to be employed in the United States pursuant to
the Immigration Laws, (b) completes and maintains a valid INS Form I-9
for each alien employee working for the Company pursuant to a H-1B,
non-immigrant work permitted visa (a "H-1B Employee"), (c) maintains a
complete "Public Access" folder for each H-1B Employee, (d) pays the
proper wage for each H-1B Employee under the Immigration Laws and
certifies such information to the Department of Labor as required
pursuant to the Immigration Laws, (e) complies with the requirements
of the Immigration Laws in all respects in order to maintain the
lawful status and employability of all alien employees of the Company,
including, but not limited to, the filing all required INS forms and
complying with the verification and recordkeeping requirements, (f)
terminates immediately any employee who is not properly authorized to
reside and/or be employed in the United States pursuant to the
Immigration Laws, and (g) maintains copies of all INS and Department
of Labor decisions, correspondence, notices and other official
releases relating to the Immigration Laws as necessary to ensure
compliance of the Company with the Immigration Laws; and there have
not been any discrimination complaints filed against the Company
pursuant to the Immigration Laws.
(xxix) In connection with the undertaking of Deepak Raghavan,
employee and stockholder of the Company (the "Investor"), to obtain
Lawful Permanent Resident status in the United States as an immigrant
investor pursuant to the Immigration Laws, including, but limited to,
INA Section 203(b)(5) and Title 8 Code of Federal Regulations - Aliens
and Nationality, Subchapter B, Section 204.6 (collectively, the
"Immigrant Investor Laws"), the Company is in compliance with the
terms and conditions of the Immigrant Investor Laws and, in connection
therewith, the Company: (a) was formed or significantly reorganized
after November 29, 1990, (b) received an investment of one million
dollars ($1,000,000) in the Company (the "Investment") from the
Investor in a form that conforms and complies with the requirements of
the Immigrant Investor Laws and will maintain the Investment in the
Company until the removal of the conditional status of the Investor's
Lawful Permanent Resident visa, (c) is a "qualifying enterprise" as
that term is defined under the Immigrant Investor Laws, (d) used the
Investment to create at least ten full-time positions within the
Company with respect to employees who are not members of the
Investor's immediate family, (e) employs, and will employ, the
Investor in a position with specific management duties or policy
formulation authority until the removal of the conditional status of
the Investor's Lawful Permanent Resident visa, and (f) is in
compliance, and will maintain compliance, with the Immigration Laws
and Immigrant Investor Laws in connection with the Investor's lawful
20
immigration and employment status with the Company and his application
for Lawful Permanent Resident of the United States pursuant to the
Immigrant Investor Laws.
(xxx) No labor dispute with the employees of the Company or any
of its subsidiaries exists or is threatened or imminent that could
have a materially adverse effect on or constitute a materially adverse
change in, or constitute a development involving a prospective
materially adverse effect on or change in, the condition (financial or
otherwise), properties, management, earnings, business affairs or
business prospects, net worth or results of operations of the Company
or any of its subsidiaries, taken as a whole, except as described in
or contemplated by the Prospectus.
Environmental
(xxxi) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to
occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials and the Company and its
subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state occupational
safety and health and environmental laws and regulations to conduct
their respective businesses, and the Company and each such subsidiary
is in compliance with all terms and conditions of any such permit,
license or approval, except any such violation of law or regulation,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals which would not, singly or in the aggregate,
have a materially adverse effect on or constitute a materially adverse
change in, or constitute a development involving a prospective
materially adverse effect on or change in, the condition (financial or
otherwise), earnings, properties, business affairs or business
prospects, net worth or results of operations of the Company or any of
its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
Other Agreements
(xxxii) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease 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 or any of their
respective properties is bound.
Absence of Materially Adverse Change
(xxxiii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has sustained any
material loss or interference with their respective businesses or
21
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, and there has been no materially
adverse change (including, without limitation, a change in management
or control), or development involving a prospective materially adverse
change, in the condition (financial or otherwise), management,
earnings, property, business affairs or business prospects,
stockholders' equity, net worth or results of operations of the
Company or any of its subsidiaries, taken as a whole, other than as
described in or contemplated by the Prospectus (exclusive of any
amendments or supplements thereto).
(xxxiv) No receiver or liquidator (or similar person) has been
appointed in respect of the Company or any subsidiary of the Company
or in respect of any part of the assets of the Company or any
subsidiary of the Company; no resolution, order of any court,
regulatory body, governmental body or otherwise, or petition or
application for an order, has been passed, made or presented for the
winding up of the Company or any subsidiary of the Company or for the
protection of the Company or any such subsidiary from its creditors;
and the Company has not, and no subsidiary of the Company has, stopped
or suspended payments of its debts, become unable to pay its debts or
otherwise become insolvent.
(b) As a further condition of the obligation of the Underwriters to
underwrite and pay for the Shares, each Selling Stockholder represents and
warrants to, and agrees with, each of the several Underwriters that:
(i) Such Selling Stockholder has full power (corporate and other)
to enter into this Agreement and to sell, assign, transfer and deliver
to the Underwriters the Shares to be sold by such Selling Stockholder
hereunder in accordance with the terms of this Agreement; the
execution and delivery of this Agreement have been duly authorized by
all necessary corporate action of such Selling Stockholder; and this
Agreement has been duly executed and delivered by such Selling
Stockholder.
(ii) Such Selling Stockholder has duly executed and delivered a
power of attorney and custody agreement (with respect to such Selling
Stockholder, the "Power of Attorney and Custody Agreement"), each in
the form heretofore delivered to the Representatives, appointing Alan
J. Dabbiere and Michael J. Casey as such Selling Stockholder's
attorney-in-fact (each an "Attorney-in-Fact" and together, the
"Attorneys-in-Fact") with authority to execute, deliver and perform
this Agreement on behalf of such Selling Stockholder and appointing
Manhattan LLC, as custodian thereunder (the "Custodian"). Certificates
representing shares of Manhattan LLC (the "LLC Shares") in negotiable
form, endorsed in blank or accompanied by blank stock powers duly
executed, with signatures appropriately guaranteed, aggregating at
least the number of Option Shares (on an as-converted basis as if the
LLC Shares had been exchanged for the Option Shares) to be sold by
such Selling
22
Stockholder hereunder have been deposited with the Custodian pursuant
to the Power of Attorney and Custody Agreement for the purpose of
delivery of the Option Shares pursuant to this Agreement. Such
Selling Stockholder has full power (corporate and other) to enter into
the Power of Attorney and Custody Agreement and to perform its
obligations under the Power of Attorney and Custody Agreement. The
execution and delivery of the Power of Attorney and Custody Agreement
has been duly authorized by all necessary corporate action of such
Selling Stockholder; the Power of Attorney and Custody Agreement has
been duly executed and delivered by such Selling Stockholder and,
assuming due authorization, execution and delivery by the Custodian,
is the legal, valid, binding and enforceable instrument of such
Selling Stockholder. Such Selling Stockholder agrees that each of the
Option Shares represented by the certificates on deposit with the
Custodian is subject to the interests of the Underwriters hereunder,
that the arrangements made for such custody, the appointment of the
Attorneys-in-Fact and the right, power and authority of each Attorney-
in-Fact to execute and deliver this Agreement, to agree on the price
at which the Shares (including such Selling Stockholder's Option
Shares) are to be sold to the Underwriters, and to carry out the terms
of this Agreement, are to that extent irrevocable and that the
obligations of such Selling Stockholder hereunder shall not be
terminated, except as provided in this Agreement or the Power of
Attorney and Custody Agreement, by any act of such Selling
Stockholder, by operation of law or otherwise, whether in the case of
any individual Selling Stockholder by the death or incapacity of such
Selling Stockholder, in the case of a trust or estate by the death of
the trustee or trustees or the executor or executors or the
termination of such trust or estate, or in the case of a corporate,
limited liability company or partnership Selling Stockholder by its
liquidation or dissolution or by the occurrence of any other event or
events. If any individual Selling Stockholder, trustee or executor
should die or become incapacitated or any such trust should be
terminated, or if any corporate, limited liability company or
partnership Selling Stockholder shall liquidate or dissolve, or if any
other event or events should occur before the delivery of such Option
Shares hereunder, the certificates for such Option Shares deposited
with the Custodian shall be delivered by the Custodian in accordance
with the respective terms and conditions of this Agreement as if such
death, incapacity, termination, liquidation or dissolution or other
event or events had not occurred, regardless of whether or not the
Custodian or the Attorneys-in-Fact shall have received notice thereof.
(iii) Such Selling Stockholder is the lawful owner of the Option
Shares to be sold by such Selling Stockholder hereunder and upon sale
and delivery of, and payment for, such Option Shares, as provided
herein, such Selling Stockholder will convey good and marketable title
to such Option Shares, free and clear of any security interests,
liens, encumbrances, equities, claims or other defects.
(iv) Neither such Selling Stockholder nor any person acting on
behalf of it has, directly or indirectly, (x) taken any action
designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or
23
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares or (y) since the filing of the
Original Registration Statement (I) sold, bid for, purchased, or paid
anyone any compensation for soliciting purchases of, the Shares or
(II) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company
(except for the sale of Option Shares by the Selling Stockholders
under this Agreement).
(v) Such Selling Stockholder has reviewed the Prospectus and the
Registration Statement, and the information regarding such Selling
Stockholder set forth therein under the caption "Selling Stockholders"
is complete and accurate.
(vi) Such Selling Stockholder has reviewed and is familiar with
the Registration Statement and the Prospectus and neither the
Prospectus nor any amendments or supplements thereto includes any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Such
Selling Stockholder is not prompted to sell its Option Shares to be
sold by such Selling Stockholder hereunder by any adverse information
concerning the Company or any subsidiary of the Company which is not
set forth in the Prospectus or the Registration Statement.
(vii) Neither such Selling Stockholder nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section (m) of the
By-laws of the NASD), any member firm of the NASD.
(viii) The sale of the Option Shares to the Underwriters by such
Selling Stockholder pursuant to this Agreement, the compliance by such
Selling Stockholder with the other provisions of this Agreement, the
Power of Attorney and Custody Agreement and the consummation of the
other transactions herein contemplated do not (i) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained, such as may
be required under state securities or blue sky laws and, if the
registration statement filed with respect to the Shares (as amended)
is not effective under the Securities Act as of the time of execution
hereof, such as may be required (and shall be obtained as provided in
this Agreement) under the Securities Act, or (ii) conflict with or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under any indenture, mortgage, deed of trust,
lease or other agreement or instrument to which such Selling
Stockholder or any of its subsidiaries is a party or by which such
Selling Stockholder or any of its subsidiaries or any of their
respective properties are bound, or the charter documents or by-laws
of such Selling Stockholder or any of its subsidiaries or any statute
or any judgment, decree, order, rule or regulation of any court or
other governmental authority or any arbitrator applicable to such
Selling Stockholder or any of its subsidiaries.
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(c) The above representations and warranties with respect to the
Company shall be deemed to be repeated at each Closing and with respect to each
Selling Stockholder at each Closing where such Selling Stockholder is selling
shares to the Underwriters, and all references therein to the Shares and the
Closing Date shall be deemed to refer to the Firm Shares or the Option Shares
and the First Closing Date or the applicable Option Closing Date, each as
applicable.
Section 6. Indemnity.
- ---------- ---------
(a) The Company and each Selling Stockholder jointly and severally
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), against any and all losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company or such Selling Stockholder in Section 5 hereof,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other costs or expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Company and such Selling Stockholder will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein. The indemnity provided for in this Section 6 shall be in addition to
any liability which the Company and such Selling Stockholder may otherwise have.
Neither the Company nor any Selling Stockholder will, without the prior written
consent of the Representatives, settle or compromise or consent to the entry of
25
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not any
such Representatives or any person who controls any such Representatives is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding. Notwithstanding any other provision of this
paragraph (a), no Selling Stockholder shall be required to provide
indemnification hereunder as to any amount in excess of the amount by which the
proceeds (after deducting underwriting discounts or commissions) received by
such Selling Stockholder exceed the amount of any damages which such Selling
Stockholder has otherwise been required to pay in respect of the same or any
substantially similar claim.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, each Selling Stockholder and each person, if
any, who controls the Company or such Selling Stockholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which the Company or any such director
or officer of the Company, such Selling Stockholder or any such controlling
person of the Company or such Selling Stockholder may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions 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 or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto or (ii) the
omission or the alleged omission to state in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company or any such director,
officer or controlling person of the Company or such Selling Stockholder or
controlling person of such Selling Stockholder in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or any action in respect thereof.
Notwithstanding any other provision of this paragraph (b), no Underwriter shall
be obligated to provide indemnification hereunder as to any amount that in the
aggregate exceeds the total public offering price of the Shares purchased by
such Underwriter under this Agreement, less the aggregate amount of any damages
that such Underwriter has otherwise been required to pay in respect of the same
or any substantially similar claim. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a) or (b) of this Section 6, such person (for
purposes of this paragraph (c), the "indemnified party") shall, promptly after
receipt by such party of notice of the commencement of such action, notify the
person against whom such indemnity may be sought (for purposes of this paragraph
26
(c), the "indemnifying party"), but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 6. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 6 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated in writing by the Representatives in
the case of paragraph (a) of this Section 6, representing the indemnified
parties under such paragraph (a) who are parties to such action or actions), or
(ii) the indemnifying party does not promptly retain counsel satisfactory to the
indemnified party, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
All fees and expenses reimbursed pursuant to this paragraph (c) shall be
reimbursed as they are incurred. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 6 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the Offering or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholders on the
27
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the Offering (before deducting expenses)
received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholders or the Underwriters, the
parties' relative intents, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company, the Selling
Stockholders and the Underwriters agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (d). Notwithstanding any
other provision of this paragraph (d), no Underwriter shall be obligated to make
contributions hereunder that in the aggregate exceed the total public offering
price of the Shares purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages that such Underwriter has otherwise been
required to pay in respect of the same or any substantially similar claim and no
Selling Stockholder shall be required to contribute any amount in excess of the
amount by which the proceeds (after deducting underwriting discounts or
commissions) received by such Selling Stockholder exceed the amount of any
damages which such Selling Stockholder has otherwise been required to pay in
respect of the same or any substantially similar claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute hereunder are several in proportion to their respective underwriting
obligations and not joint, and contributions among Underwriters shall be
governed by the provisions of the Deutsche Morgan Grenfell Inc. Master Agreement
Among Underwriters. For purposes of this paragraph (d), each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement and each person, if any, who
controls the Company or any Selling Stockholder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Company or such Selling Stockholder, as the case
may be.
Section 7. Conditions Precedent. The obligations of the several Underwriters
- ---------- --------------------
to purchase and pay for the Shares shall be subject, in the Representatives'
sole discretion, to (i) the accuracy of the representations and warranties of
the Company and the Selling Stockholders contained herein as of the date hereof
and as of each Closing Date on which the Company or the Selling Stockholders, as
the case may be, proposes to sell Shares to the Underwriter, in each case, as if
made on and as of each such Closing Date, (ii) the accuracy of the statements of
the Company's officers and the officers of the Selling Stockholders made
pursuant to the provisions hereof, (iii) the performance by the Company and the
Selling Stockholders of their respective covenants and agreements hereunder and
(iv) the following additional conditions:
(a) (i) If the Original Registration Statement or any amendment
thereto filed prior to the First Closing Date has not been declared effective as
28
of the time of execution hereof, the Original Registration Statement or such
amendment shall have been declared effective not later than 6:00 P.M. New York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 4:30 P.M. New York City time on such date,
or 12:00 Noon New York City time on the business day following the day on which
the public offering price was determined, if such determination occurred after
4:30 P.M. New York City time on such date, and (ii) if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have been
declared effective not later than the time confirmations are sent or given as
specified by Rule 462(b)(2), or such later time and date as shall have been
consented to by the Representatives; if required, the Prospectus or any Term
Sheet that constitutes a part thereof and any amendment or supplement thereto
shall have been filed with the Commission in the manner and within the time
period required by Rules 434 and 424(b) under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received a legal opinion from
Morris, Manning & Martin, L.L.P., counsel for the Company, dated the Closing
Date, to the effect that:
(i) the Registration Statement is effective under the Securities
Act; any required filing of the Prospectus, or any Term Sheet
that constitutes a part thereof, pursuant to Rules 434 and 424(b)
has been made in the manner and within the time period required
by Rules 434 and 424(b); and no stop order suspending the
effectiveness of the Registration Statement or any amendment
thereto has been issued and, to the best knowledge of such
counsel, no proceedings for that purpose are pending or
threatened by the Commission;
(ii) the Original Registration Statement and each amendment
thereto, any Rule 462(b) Registration Statement and the
Prospectus (in each case, other than the financial statements and
other financial information contained therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission
thereunder;
(iii) such counsel has no reason to believe that (in each case,
other than the financial statements and other financial
information contained therein, as to which such counsel need
express no opinion) (x) the Registration Statement, as of its
effective date, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (y)
the Prospectus, as of its date or the date of such opinion,
included or includes any untrue statement of a material fact or
omitted or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
29
(iv) if the Company elects to rely on Rule 434 under the
Securities Act, the Prospectus is not "materially different", as
such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time of its effectiveness or an
effective post-effective amendment thereto (including such
information that is permitted to be omitted pursuant to Rule 430A
under the Securities Act);
(v) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued
shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable, have
been issued in compliance with all applicable federal and state
securities laws and were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or
purchase securities; the Shares have been duly authorized by all
necessary corporate action of the Company and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable;
no holders of outstanding shares of capital stock of the Company
are entitled as such to any preemptive or other rights to
subscribe for any of the Shares; and no holder of securities of
the Company has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of
any securities owned by such holder under the Securities Act in
the Offering contemplated by this Agreement;
(vi) all of the Shares have been duly authorized and accepted for
quotation on the Nasdaq National Market, subject to official
notice of issuance;
(vii) the Company and each of its subsidiaries have been duly
organized and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation and are duly qualified to transact business as
foreign corporations and are in good standing under the laws of
each jurisdiction in which its ownership, leasing or operation of
its properties or assets or the conduct of its business requires
such qualification, except where the failure to be so qualified
does not amount to a material liability or disability to the
Company and its subsidiaries, taken as a whole; the Company and
each of its subsidiaries have full power and authority to own,
lease and operate their respective properties and assets and
conduct their respective businesses as described in the
Registration Statement and the Prospectus, and the Company has
corporate power to enter into this Agreement and to carry out all
the terms and provisions hereof to be carried out by it; all of
30
the issued and outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are owned
beneficially by the Company free and clear of any perfected
security interests or, to the best knowledge of such counsel, any
other security interests, liens, encumbrances, equities or
claims;
(viii) to the best knowledge of such counsel, there are not
statutes or regulations that are required to be described in the
Prospectus that are not described as required;
(ix) all descriptions in the Registration Statement of contracts
and other documents to which the Company or its subsidiaries are
a party are accurate in all material respects; to the best
knowledge of such counsel, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all
material respects;
(x) the statements set forth under the heading "Description of
Capital Stock" in the Prospectus, insofar as such statements
purport to summarize certain provisions of the capital stock of
the Company, provide a fair summary of such provisions; and the
statements set forth under the headings "Principal and Selling
Shareholders", "Shares Eligible for Future Sale", "Business -
Employees", "Conversion from Limited Liability Company Status and
Related Distributions" in the Prospectus, insofar as such
statements constitute a summary of the legal matters, documents
or proceedings referred to therein, have been reviewed by such
counsel and fairly present the information called for with
respect to such legal matters, documents and proceedings in all
material respects as required by the Securities Act and the rules
and regulations thereunder;
(xi) to the best knowledge of such counsel, the Company is not in
violation of its charter or by-laws and no default by the Company
or any subsidiary exists in the due performance or observance of
any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument that is described or
referred to in the Registration Statement or the Prospectus or
filed as an exhibit to the Registration Statement;
(xii) the execution and delivery of this Agreement have been
duly authorized by all necessary corporate action of the Company
and this Agreement has been duly executed and delivered by the
Company;
(xiii) the issuance, offering and sale of the Shares to the
31
Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this
Agreement, the consummation of the transactions contemplated in
this Agreement and in the Registration Statement (including the
issuance and sale of the Shares and the use of proceeds from the
sale of the Shares as described in the Prospectus under the
caption "Use of Proceeds") do not (x) require the consent,
approval, authorization, registration or qualification of or with
any governmental authority, except such as have been obtained or
made (and specified in such opinion) or such as may be required
by the securities or Blue Sky laws of the various states of the
United States of America and other U.S. jurisdictions in
connection with the offer and sale of the Shares by the
Underwriters, or (y) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument, 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 or any of their respective
properties are bound, or the charter documents, limited liability
company operating agreements or by-laws of the Company or any of
its subsidiaries, or any statute or any judgment, decree, order,
rule or regulation of any court or other governmental authority
or any arbitrator known to such counsel and applicable to the
Company or its subsidiaries;
(xiv) the Company is not an "investment company" and, after
giving effect to the Offering and the application of the proceeds
therefrom, will not be an "investment company", as such term is
defined in the 1940 Act;
(xv) such counsel does not know of any legal or governmental
proceedings or investigations pending or threatened to which the
Company or any of its subsidiaries is a party or to which the
property of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement
or the Prospectus and are not described therein or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described therein or filed as required; and
(xvi) all of the assets and liabilities of the Company (other
than the proceeds of the sale of securities by the underwriters
pursuant to this Agreement) were transferred to the Company by
Manhattan LLC other than Pegasys. The Transferred Property
consist solely of all of the assets and liabilities of Manhattan
LLC. The transfer of the Transferred Property to the Company
will qualify as a tax-free incorporation under Section 351 of the
Code; and as a result thereof and of the subsequent liquidation
32
of Manhattan LLC and its wholly-owned subsidiary Performance
Analysis Corporation ("PAC"), except as described in the
Prospectus, the Company will neither (a) recognize income for
federal, foreign, state or local tax purposes, nor (b) succeed to
any federal, foreign, state or local tax liability of any other
entity or person other than Manhattan LLC and PAC, whether by
reason of transferee liability or otherwise. Under no
circumstances will the Company succeed to any federal, foreign,
state or local tax liability of Pegasys Systems Incorporated,
whether by reason of transferee liability or otherwise.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. The foregoing opinion shall also
state that the Underwriters are justified in relying upon such opinion of and
copies of such opinion shall be delivered to the Representatives and counsel for
the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion. The opinions of issuer's counsel described herein shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(c) The Representatives shall have received a legal opinion from
Morris, Manning & Martin, L.L.P., counsel for the Selling Stockholders, dated
the Closing Date, to the effect that:
(i) such Selling Stockholder has full power (corporate and other)
to enter into this Agreement, the Power of Attorney and Custody
Agreement and to sell, assign, transfer and deliver the Shares
being sold by such Selling Stockholder hereunder in the manner
provided in this Agreement and to perform its obligations under
the Power of Attorney and Custody Agreement; the execution and
delivery of this Agreement, the Power of Attorney and Custody
Agreement have been duly authorized by all necessary corporate
action of each Selling Stockholder; this Agreement and the Power
of Attorney and Custody Agreement have been duly executed and
delivered by each Selling Stockholder; assuming due
authorization, execution and delivery by the Custodian, the Power
of Attorney and Custody Agreement is the legal, valid, binding
and enforceable instrument of such Selling Stockholder, subject
to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law);
(ii) the delivery by each Selling Stockholder to the several
33
Underwriters of certificates for the Shares being sold hereunder
by such Selling Stockholder against payment therefor as provided
herein, will convey good and marketable title to such Shares to
the several Underwriters, free and clear of all security
interests, liens, encumbrances, equities, claims or other
defects; and
(iii) the sale of the Shares to the Underwriters by such Selling
Stockholder pursuant to this Agreement, the compliance by such
Selling Stockholder with the other provisions of this Agreement
and the Power of Attorney and Custody Agreement and the
consummation of the other transactions herein contemplated do not
(x) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such
as have been obtained and such as may be required under state
securities or blue sky laws, or (y) conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which such
Selling Stockholder or any of its subsidiaries is a party or by
which such Selling Stockholder or any of its subsidiaries or any
of their respective properties are bound, or the charter
documents or by-laws of such Selling Stockholder or any of its
subsidiaries or any statute or any judgment, decree, order, rule
or regulation of any court or other governmental authority or any
arbitrator applicable to such Selling Stockholder or any of its
subsidiaries.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Selling Stockholders and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (c) shall include any amendment or supplement thereto at the date of
such opinion.
(d) The Representatives shall have received a legal opinion from
Frazier, Soloway & Poorak, P.C., immigration counsel for the Company, dated the
Closing Date, to the effect that:
(i) the statements in the Registration Statement and Prospectus
under the captions "Risk Factors - Immigration Issues" and
"Business - Employees" insofar as such statements constitute
summaries of matters of law, are accurate and complete statements
or summaries of the matters set forth therein;
(ii) to such counsel's knowledge, the Registration Statement and
the Prospectus do not contain any untrue statement of a material
fact with respect to the immigration status of the Company or its
employees, or omit to state any material fact relating to the
immigration status of the Company or its employees which is
required to be stated in the Registration Statement and the
Prospectus or is necessary to make the statements therein not
misleading; and
34
(iii) in connection with the undertaking of the Investor to
obtain Lawful Permanent Resident status in the United States as
an immigrant investor pursuant to the Immigrant Investor Laws,
the Company is in compliance with the terms and conditions of the
Immigrant Investor Laws and, in connection therewith, the
Company: (a) was formed or significantly reorganized after
November 29, 1990, (b) received the Investment in the Company
from the Investor in a form that conforms and complies with the
requirements of the Immigrant Investor Laws, (c) is a "qualifying
enterprise" as that term is defined under the Immigrant Investor
Laws, (d) used the Investment to create at least ten full-time
positions within the Company with respect to employees who are
not members of the Investor's immediate family, (e) employs the
Investor in a position with specific management duties or policy
formulation authority, and (f) is in compliance with the
Immigration Laws and Immigrant Investor Laws in connection with
the Investor's lawful immigration and employment status with the
Company and his application for Lawful Permanent Resident of the
United States pursuant to the Immigrant Investor Laws.
(e) The Representatives shall have received a legal opinion from Jay
I. Solomon, Esq., immigration counsel for the Company, dated the Closing Date,
to the effect that:
(i) the statements in the Registration Statement and Prospectus under
35
the captions "Risk Factors - Immigration Issues" and "Business -
Employees" insofar as such statements constitute summaries of matters
of law, are accurate and complete statements or summaries of the
matters set forth therein;
(ii) to such counsel's knowledge, the Registration Statement and the
Prospectus do not contain any untrue statement of a material fact with
respect to the immigration status of the Company or its employees, or
omit to state any material fact relating to the immigration status of
the Company or its employees which is required to be stated in the
Registration Statement and the Prospectus or is necessary to make the
statements therein not misleading; and
(iii) the Company is in compliance with all applicable provisions of
the Immigration Laws; the Company: (a) employs only aliens who are
properly authorized to be employed in the United States pursuant to
the Immigration Laws, (b) completes and maintains a valid INS Form I-9
for each H-1B Employee, (c) maintains a complete "Public Access"
folder for each H-1B Employee, (d) pays the proper wage for each H-1B
Employee under the Immigration Laws and certifies such information to
the Department of Labor as required pursuant to the Immigration Laws,
(e) complies with the requirements of the Immigration Laws in all
respects in order to maintain the lawful status and employability of
all alien employees of the Company, including, but not limited to, the
filing all required INS forms and complying with the verification and
recordkeeping requirements, (f) terminates immediately any employee
who is not properly authorized to reside and/or be employed in the
United States pursuant to the Immigration Laws, and (g) maintains
copies of all INS and Department of Labor decisions, correspondence,
notices and other official releases relating to the Immigration Laws
as necessary to ensure compliance of the Company with the Immigration
Laws; and there have not been any discrimination complaints filed
against the Company pursuant to the Immigration Laws.
(f) The Representatives shall have received a legal opinion from
Testa, Hurwitz & Thibeault, LLP, counsel for the Underwriters, dated the Closing
Date, covering the issuance and sale of the Shares, the Registration Statement
and the Prospectus, and such other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(g) The Representatives shall have received from Arthur Andersen, LLP
a letter or letters dated, respectively, the date hereof and the Closing Date,
in form and substance satisfactory to the Representatives, together with signed
or reproduced copies of such letter for each of the Underwriters containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain information contained in the Registration Statement and the Prospectus.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
36
obligations of the Underwriters that (I) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (II) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement, as amended as of the date
hereof. References to the Registration Statement and the Prospectus in this
paragraph (f) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(h) The Company shall have furnished or caused to be furnished to the
Underwriters at the Closing a certificate of its Chairman of the Board, its
President and Chief Executive Officer and its Chief Financial Officer
satisfactory to the Underwriters to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the
Closing Date; the Registration Statement, as amended as of the
Closing Date, does not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading, and the Prospectus, as amended
or supplemented as of the Closing Date, does not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and the Company has performed all covenants and
agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued,
and no proceedings for that purpose have been instituted or
threatened or, to the best of the Company's knowledge, are
contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has sustained any
material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has
not been any materially adverse change (including, without
limitation, a change in management or control), or development
involving a prospective materially adverse change, in the
condition (financial or otherwise), management, earnings,
properties, business affairs or business prospects, stockholders'
equity, net worth or results of operations of the Company or any
of its subsidiaries, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or
supplement thereto).
(i) The Representatives shall have received a certificate from each
37
Selling Stockholder dated each Option Closing Date, signed by an Attorney-in-
Fact on behalf of such Selling Stockholder to the effect that:
(i) the representations and warranties of such Selling
Stockholder in this Agreement are true and correct as if made on
and as of such Option Closing Date;
(ii) the Registration Statement, as amended as of such Option
Closing Date, does not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading, and the Prospectus, as amended
or supplemented as of such Option Closing Date, does not include
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and
(iii) such Selling Stockholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior
to such Option Closing Date.
(j) The Representatives shall have received from each person who is a
director or officer of the Company or who owns more than 5% of the outstanding
shares of Common Stock an agreement dated on or before the date of this
Agreement to the effect that such person will not publicly announce any
intention to and will not, without the prior written consent of DMG on behalf of
the Underwriters, (i) offer, pledge, sell, offer to sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise transfer or dispose
of, directly or indirectly, any of the shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, Common Stock, or (ii)
enter into any swap or other agreement or any transaction that transfers, in
whole or in part, 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
(i) or (ii) above is to be settled by delivery of 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 person on the date hereof or hereafter acquired, for a period
beginning from the date hereof and continuing to and including the date 180 days
after the date hereof; provided, however, that such person may, without the
prior written consent of DMG on behalf of the Underwriters, transfer shares of
Common Stock or such other securities to one or more members of such person's
immediate family or to trusts for the benefit of members of such person's
immediate family or in connection with bona fide gifts, provided that any
transferee agrees in writing as a condition precedent to such transfer to be
bound by the transfer restrictions described above, and there shall be no
further transfer of any shares of Common Stock or such other securities, except
in accordance with this Agreement.
(k) Prior to the commencement of the Offering, the Company shall have
made an application for the quotation of the Shares on the Nasdaq National
38
Market and the Shares shall have been included for trading on the Nasdaq
National Market, subject to official notice of issuance.
(l) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(m) On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company and the
Selling Stockholders.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
satisfactory in all material respects to the Representatives and counsel for the
Underwriters. The Company and the Selling Stockholders shall furnish to the
Representatives such conformed copies of such opinions, certificates, letters
and documents in such quantities as the Representatives and counsel for the
Underwriters shall reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Shares, except that all references therein
to the Shares and the Closing Date shall be deemed to refer to the Firm Shares
or the Option Shares and the First Closing Date or the related Option Closing
Date, each as applicable.
Section 8. Default of Underwriters. If, at the First Closing, any one or more
- ---------- -----------------------
of the Underwriters shall fail or refuse to purchase Shares that it has or they
have agreed to purchase hereunder on such date, and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is ten percent or less of the aggregate number of the Shares
to be purchased on such date, the other Underwriters may make arrangements
satisfactory to the Representatives for the purchase of such Shares by other
persons (who may include one or more of the non-defaulting Underwriters,
including the Representatives), but if no such arrangements are made by the
First Closing Date, the other Underwriters shall be obligated severally in the
proportions that the number of Firm Shares set forth opposite their respective
names in Schedule 1 hereto bears to the aggregate number of Firm Shares set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representatives may specify, to purchase the Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date. If, at the First Closing, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than ten
per cent of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to the Representatives and the Company for the
39
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter, the Company or any Selling Stockholder. In any such
case either the Representatives or the Company shall have the right to postpone
the Closing, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If, at any Option
Closing, any Underwriter or Underwriters shall fail or refuse to purchase Option
Shares, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase Option Shares or (ii) purchase not less
than the number of Option Shares that such non-defaulting Underwriters would
have been obligated to purchase in the absence of such default. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 8. Any action taken under this Section 8 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
Section 9. Termination. This Agreement shall be subject to termination in the
- ---------- -----------
sole discretion of the Representatives by notice to the Company and the Selling
Stockholders given prior to any Closing Date in the event that the Company or
any Selling Stockholder shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder at or prior thereto or, if at or prior to any Closing Date, (a)
trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited or minimum or
maximum prices shall have been established by or on, as the case may be, the
Commission or the New York Stock Exchange or the Nasdaq National Market; (b)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market; (c) a general moratorium on
commercial banking activities shall have been declared by either Federal or New
York State authorities; (d) there shall have occurred (i) an outbreak or
escalation of hostilities between the United States and any foreign power, (ii)
an outbreak or escalation of any other insurrection or armed conflict involving
the United States, or (iii) any other calamity or crisis or materially adverse
change in general economic, political or financial conditions having an effect
on the U.S. financial markets that, in the sole judgment of the Representatives,
makes it impractical or inadvisable to proceed with the public offering or the
delivery of the Shares as contemplated by the Registration Statement, as amended
as of the date hereof; or (e) the Company or any of its subsidiaries shall have,
in the sole judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, or there shall
have been any materially adverse change (including, without limitation, a change
in management or control), or constitute a development involving a prospective
materially adverse change, in the condition (financial or otherwise),
management, earnings, properties, business affairs or business prospects,
stockholders' equity, net worth or results of operations of the Company or any
of its subsidiaries, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto). Termination of
this Agreement pursuant to this Section 9 shall be without liability of any
party to any other party except for the liability of the Company in relation to
expenses as provided in Sections 4 and 10 hereof, the liability of the Selling
Stockholders in relation to expenses as provided in Sections 4 and 10 hereof,
the indemnity provided in Section 6 hereof and any liability arising before or
in relation to such termination.
40
Section 10. Reimbursement of Expenses. If the sale of the Shares provided for
- ----------- -------------------------
herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied or because of any
termination pursuant to Section 9 hereof (other than by reason of a default by
any of the Underwriters), the Company shall reimburse the Underwriters,
severally upon demand, for all out-of-pocket expenses (including, without
limitation, the fees and disbursements of counsel) that shall have been incurred
by them in connection with the proposed purchase and sale of the Shares. If the
Company is required to make any payments to the Underwriters under this Section
10 because of any Selling Stockholder's refusal, inability or failure to satisfy
any condition to the obligations of the Underwriters set forth in Section 7
hereof, such defaulting Selling Stockholder, pro rata in proportion to the
--------
percentage of Shares to be sold by each, shall reimburse the Company on demand
for all amounts so paid.
Section 11. Information Supplied by Underwriters. The statements set forth in
- ----------- ------------------------------------
the last paragraph on the front cover page and under the heading "Underwriting"
in any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Section 5(a)(ii) and Section 6 hereof. The Underwriters confirm that such
statements (to such extent) are correct.
Section 12. Notices. In all dealings hereunder, you shall act on behalf of
- ----------- -------
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives. Any notice or notification in
any form to be given under this Agreement may be delivered in person or sent by
telex, facsimile or telephone (subject in the case of a communication by
telephone to confirmation by telex or facsimile) addressed to:
in the case of the Company:
Manhattan Associates, Inc.
2300 Windy Ridge Parkway, Suite 700
Atlanta, Georgia 30339
Telephone: (770) 955-7070
Facsimile: (770) 955-0302
Attention: President
in the case of the Underwriters:
Deutsche Morgan Grenfell Inc.
31 West 52nd Street
New York, New York 10019
Telephone: (212) 469-5000
Facsimile: (212) 469-5995
Attention: Equity Syndicate Desk
41
In the case of the Selling Stockholders, any such notice shall be addressed to
the Selling Stockholders at the addresses set forth in Schedule 2 hereto. Any
notice under this Section 12 shall take effect, in the case of delivery, at the
time of delivery and, in the case of telex or facsimile, at the time of
dispatch.
Section 13. Miscellaneous.
- ----------- -------------
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect, the meaning or interpretation
of this Agreement.
(c) For purposes of this Agreement, (a) "business day" means any day
on which the New York Stock Exchange is open for trading, and (b) "subsidiary"
has the meaning set forth in Rule 405 under the Securities Act.
(d) This Agreement may be executed in any number of counterparts, all
of which, taken together, shall constitute one and the same Agreement and any
party may enter into this Agreement by executing a counterpart.
(e) This Agreement shall inure to the benefit of and shall be binding
upon the several Underwriters, the Company, the Selling Stockholders and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that (i)
the indemnities of the Company and the Selling Stockholders contained in Section
6 hereof shall also be for the benefit of any person or persons who control any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and (ii) the indemnities of the Underwriters contained in
Section 6 hereof shall also be for the benefit of the directors of the Company,
the officers of the Company who have signed the Registration Statement, each
Selling Stockholder and any person or persons who control the Company or such
Selling Stockholder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act. No purchaser of Shares from any Underwriter
shall be deemed a successor because of such purchase.
(f) The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Company, its officers, the Selling
Stockholders and the several Underwriters set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement shall remain in
full force and effect, regardless of (i) any investigation made by or on behalf
of the Company, any of its officers or directors, the Selling Stockholders, any
Underwriter or any controlling person referred to in Section 6 hereof and (ii)
delivery of and payment for the Shares. The respective agreements, covenants,
indemnities and other statements set forth in Sections 4, 6 and 10 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
42
Section 14. Severability. It is the desire and intent of the parties that the
- ----------- ------------
provisions of this Agreement be enforced to the fullest extent permissible under
the law and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this Agreement would be
held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 15. Governing Law. The validity and interpretation of this Agreement,
- ----------- -------------
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
43
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in the Deutsche Morgan
Grenfell Inc. Master Agreement Among Underwriters, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
MANHATTAN ASSOCIATES, INC.
By _____________________________________
President and Chief Executive Officer
SELLING STOCKHOLDER
By _____________________________________
Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
DEUTSCHE MORGAN GRENFELL INC.
HAMBRECHT & QUIST LLC
SOUNDVIEW FINANCIAL GROUP, INC.
By: DEUTSCHE MORGAN GRENFELL INC.
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
For itself and on behalf of the Representatives.
44
SCHEDULE 1
----------
The Underwriters
Underwriter Underwriting commitment
- ----------- -----------------------
[name]................................ [number of Firm Shares]
____________________
Total................................. [aggregate number of Firm Shares]
45
SCHEDULE 2
----------
The Selling Stockholders
Number Of Shares
Selling Stockholders To Be Sold
- -------------------- ----------------
[name and address]........................ [number of Firm Shares]
Total..................................... ____________________
[aggregate number of Firm Shares]
46