Common Stock Underwriting Agreement
Common
Stock
_______________
,
2008
Xxxxxx
Xxxxxx Partners LLC
Xxxxxxxxxxx
& Co. Inc.
As
representatives of the Underwriters
named
in
Schedule I hereto
c/o
Thomas Xxxxxx Partners LLC
Xxx
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
Ladies
and Gentlemen:
Digital
Domain, a Delaware corporation (“Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters named in
Schedule I hereto (the “Underwriters”) an aggregate of [____] shares
of
common stock, par value $0.0001 per share (“Stock”), of the Company, and, at the
election of the Underwriters, up to an
additional
aggregate of [ ]
shares
of Stock. The aggregate of [____] shares to be sold by the Company is herein
called the “Firm Shares” and the additional aggregate of [____] shares to be
sold by the Company is herein called the “Optional Shares”. The Firm Shares and
the Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the “Shares”. As used
herein, the terms “you” and “your” refer to Xxxxxx Xxxxxx Partners LLC, and the
term “this Agreement” refers to this letter agreement.
1. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A
registration statement on Form S-1 (File No. 333-147993) (the “Initial
Registration Statement”) in respect of the Shares has been filed with the
Securities and Exchange Commission (the “Commission”); the Initial Registration
Statement and any post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such form;
other
than a registration statement, if any, increasing the size of the offering
(a
“Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the “Act”), which became effective
upon filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been initiated
or
threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the Act is hereinafter
called a “Preliminary Prospectus”; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 6(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the Initial Registration Statement at
the time it was declared effective, each as amended at the time such part of
the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the “Registration Statement”; the
Preliminary Prospectus relating to the Shares that was included in the
Registration Statement immediately prior to the Applicable Time (as defined
in
Section 1(c) hereof) is hereinafter called the “Pricing Prospectus”; such
final prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the “Prospectus”; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Shares is
hereinafter called an “Issuer Free Writing Prospectus”);
(b) No
order
preventing or suspending the use of any Preliminary Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects
to
the requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing (including via electronic
mail)
to the Company or its counsel by an Underwriter through Xxxxxx Xxxxxx Partners
LLC or Xxxxxxxxxxx & Co. Inc., or their counsel, expressly for use
therein;
(c) For
the
purposes of this Agreement, the “Applicable Time” is [____] [p.m.] (New York
City time) on the date of this Agreement. The Pricing Prospectus, as of the
Applicable Time, 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;
and
each Issuer Free Writing Prospectus listed on Schedule II hereto does not
conflict with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing Prospectus
as
of the Applicable Time, 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; provided, however, that this representation and warranty shall
not
apply to statements or omissions made in an Issuer Free Writing Prospectus
in
reliance upon and in conformity with information furnished in writing (including
via electronic mail) to the Company or its counsel by an Underwriter through
Xxxxxx Xxxxxx Partners LLC or Xxxxxxxxxxx & Co. Inc., or their counsel,
expressly for use therein;
-2-
(d) The
Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement or the Prospectus will conform,
in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made
in reliance upon and in conformity with information furnished in writing
(including via electronic mail) to the Company or its counsel by an Underwriter
through Xxxxxx Xxxxxx Partners LLC or Xxxxxxxxxxx & Co. Inc., or their
counsel, expressly for use therein;
(e) Neither
the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in the Pricing Prospectus any
loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus, except for such loss or interference
as
would not, individually or in the aggregate, have a material adverse effect
on
the business, prospects, operations, assets, condition (financial or otherwise),
stockholders’ equity or results of operations of the Company and its
consolidated subsidiaries taken as a whole (a “Material Adverse Effect”); and,
since the respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, there has not been any material change
in
the capital stock or long-term debt of the Company or any of its subsidiaries
or
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, operations, assets, condition
(financial or otherwise) or results of operations of the Company and its
consolidated subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Pricing Prospectus;
(f) Neither
the Company nor its subsidiaries own any real property. The Company and its
subsidiaries have good and marketable title to all personal property owned
by
them, in each case free and clear of all liens, encumbrances and defects except
such as are described in the Pricing Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use
made
and proposed to be made of such property and buildings by the Company and its
subsidiaries;
(g) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as described in the
Pricing Prospectus, and has been duly qualified as a foreign corporation for
the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business
so
as to require such qualification, except where the failure to be so qualified
and in good standing in any such jurisdiction would not, individually or in
the
aggregate, have a Material Adverse Effect; and each subsidiary of the Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, except where
the
failure to be in such good standing would not, individually or in the aggregate,
have a Material Adverse Effect;
-3-
(h) The
Company has an authorized capitalization as set forth in the Pricing Prospectus,
and all of the issued shares of capital stock of the Company have been duly
and
validly authorized and issued, are fully paid and non-assessable and conform
to
the description of the Stock contained in the Pricing Prospectus and the
Prospectus; and all of the shares of capital stock or other ownership interests
of each subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable and (except for directors’ qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except to such extent as would not,
individually or in the aggregate, have a Material Adverse Effect;
(i) The
Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued
and
fully paid and non-assessable and will conform to the description of the Stock
contained in the Pricing Prospectus and the Prospectus;
(j) The
issue
and sale of the Shares to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the consummation by
the
Company of the transactions herein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute
a
default under, or give rise to a right of termination under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets
of
the Company or any of its subsidiaries is subject, except for such conflicts,
breaches, violations, defaults and rights of termination as would not,
individually or in the aggregate, have a Material Adverse Effect, nor will
such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over
the Company or any of its subsidiaries or any of their properties;
(k) No
consent, approval, authorization, order, registration, qualification, permit,
license, exemption, filing or notice (each an “Authorization”) of, from, with or
to any court, tribunal, government, governmental or regulatory authority,
self-regulatory organization or body is required for the issue and sale
of
the Shares or the consummation by the Company of the transactions contemplated
by this Agreement, except (A) the registration of the Shares under the Act
and
the Stock under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”); (B) the listing of the Shares on The NASDAQ Global Market; (C) such
consents, approvals, authorizations, registrations or qualifications as may
be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters; (D) such Authorizations
as may be required by the Financial Industry Regulatory Authority (“FINRA”); and
(E) such other Authorizations the absence of which would not, individually
or in
the aggregate, have a Material Adverse Effect; and no event has occurred that
allows or results in, or after notice or lapse of time or both would allow
or
result in, revocation, suspension, termination or invalidation of any such
Authorization or any other impairment of the rights of the holder or maker
of
any such Authorization;
-4-
(l) All
corporate approvals (including those of stockholders) necessary for the Company
to consummate the transactions contemplated in this Agreement have been obtained
and are in effect;
(m) Neither
the Company nor any of its subsidiaries is (A) in violation of its
Certificate of Incorporation or By-laws or other organizational documents or
(B) in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of
trust, loan agreement, lease or other agreement or instrument to which it is
a
party or by which it or any of its properties may be bound, except for such
defaults specified under clause (B) herein that would not, individually or
in the aggregate, have a Material Adverse Effect;
(n) The
statements set forth in the Pricing Prospectus and the Prospectus under the
caption “Description of Capital Stock”, insofar as they purport to constitute a
summary of the terms of the Stock, under the caption “Material U.S. Federal
Income Tax Considerations for Non-U.S. Holders”, and under the caption
“Underwriting”, insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and fair;
(o) Other
than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect; and, to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or
threatened by others;
(p) The
Company is not, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof will not, be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as
amended;
(q) At
the
time of filing the Initial Registration Statement, the Company was not an
“ineligible issuer”, as defined in Rule 405 under the Act;
(r) Deloitte
& Touche LLP and PricewaterhouseCoopers LLP, each of whom has certified
certain financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
-5-
(s) The
financial statements of the Company and its subsidiaries (including all notes
and schedules thereto) included in the Registration Statement, the Pricing
Prospectus and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders’ equity and cash flows of the Company and
its subsidiaries for the periods specified in conformity with generally accepted
accounting principles, consistently applied throughout the periods specified;
and the summary historical consolidated financial data and the selected
historical consolidated financial data included in the Registration Statement,
the Pricing Prospectus and the Prospectus under, respectively, the captions
“Summary Historical Consolidated and Pro Forma Financial Information” and
“Selected Historical Consolidated Financial Information” present fairly the
information shown therein as at the respective dates and for the respective
periods specified and are derived from the consolidated financial statements
included in the Registration Statement, the Pricing Prospectus and the
Prospectus and other financial information;
(t) The
Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles
and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect
to
any differences;
(u) Since
the
date of the latest audited financial statements of the Company included in
the
Pricing Prospectus, there has been no
change
in the Company’s system of internal accounting controls that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting (other than as set forth in the Pricing
Prospectus);
(v) The
Company maintains disclosure controls and procedures (as such term is defined
in
Rule 13a-15(e) under the Exchange Act) that have been designed to ensure that
material information relating to the Company and its subsidiaries is made known
to the Company’s principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and procedures are
effective;
(w) No
relationship, direct or indirect, exists between or among the Company, on the
one hand, and the directors, officers, stockholders, customers or suppliers
of
the Company, on the other hand, which is required to be described in the
Registration Statement, the Pricing Prospectus and the Prospectus and which
is
not so described. There are no outstanding loans, advances or guarantees of
indebtedness by the Company to or for the benefit of any of the executive
officers or directors of the Company, except as disclosed in the Registration
Statement, the Pricing Prospectus and the Prospectus;
(x) To
the
actual knowledge of the Company, no person associated with or acting on behalf
of the Company, including without limitation any director, officer, agent or
employee of the Company or its subsidiaries has, directly or indirectly, while
acting on behalf of the Company or its subsidiaries (A) used any corporate
funds for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity, (B) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds, (C) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended or (D) made
any other unlawful payment;
-6-
(y) Except
as
contemplated by this Agreement and as disclosed in the Registration
Statement,
the
Pricing Prospectus
and the
Prospectus, no person is entitled to receive from the Company a brokerage
commission, finder’s fee or other like payment in connection with the
transactions contemplated herein;
(z) Neither
the Company nor any of its subsidiaries or controlled affiliates does business
with the government of, or with any person located in, any country in a manner
that violates in any material respect any of the economic sanctions programs
or
similar sanctions-related measures of the United States as administered by
the
United States Treasury Department’s Office of Foreign Assets Control; and the
net proceeds from this offering will not be used to fund any operations in,
finance any investments in or make any payments to any country, or to make
any
payments to any person, in a manner that violates any of the economic sanctions
of the United States administered by the United States Treasury Department’s
Office of Foreign Assets Control; and
(aa) Neither
the Company nor any of its subsidiaries or controlled affiliates does business
with the government of Cuba or with any person located in Cuba within the
meaning of Section 517.075, Florida Statutes.
2. Subject
to the terms and conditions herein set forth, (a) the Company agrees to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at a purchase price per share
of
$[___], the number of Firm Shares as set forth opposite the name of each
Underwriter in Schedule I hereto, and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional
Shares as provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to
purchase from the Company, at the purchase price per share set forth in
clause (a) of this Section 2, the number of Optional Shares as to
which such election shall have been exercised (to be adjusted by you so as
to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite
the
name of such Underwriter in Schedule I hereto and the denominator of which
is the maximum number of Optional Shares that all of the Underwriters are
entitled to purchase hereunder as set forth in Schedule I
hereto.
The
Company hereby grants to the Underwriters the right to purchase at their
election up to an aggregate of [____] Optional Shares, at the purchase price
per
share set forth in the paragraph above, for the sole purpose of covering sales
of Shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement
and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you
but
in no event earlier than the First Time of Delivery (as defined in
Section 4(a) hereof) or, unless you and the Company otherwise agree in
writing, earlier than two or later than ten business days after the date of
such
notice.
-7-
3. Upon
the
authorization by you of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set
forth in the Prospectus.
4. (a) The
Shares to be purchased by each Underwriter hereunder will be represented by
one
or more definitive global Shares in book-entry form which will be deposited
by
or on behalf of the Company with The Depository Trust Company (“DTC”) or its
designated custodian. The Company will deliver the Shares to Xxxxxx Xxxxxx
Partners LLC, for the account of each Underwriter, against payment by or on
behalf of each such Underwriter of the purchase price therefor by wire transfer
of Federal (same-day) funds to the account specified by the Company, as their
interests may appear, by causing DTC to credit the Shares to the account of
Xxxxxx Xxxxxx Partners LLC at DTC. The time and date of such delivery and
payment shall be, with respect to the Firm Shares, [____] a.m.,
New
York City time, on [_______], or such other time and date as Xxxxxx Xxxxxx
Partners LLC and the Company may agree upon in writing, and, with respect to
the
Optional Shares, [____] a.m., New York time, on the date specified by Xxxxxx
Xxxxxx Partners LLC in the written notice given by Xxxxxx Xxxxxx Partners LLC
of
the Underwriters’ election to purchase such Optional Shares, or such other time
and date as Xxxxxx Xxxxxx Partners LLC and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called
the
“First Time of Delivery”, such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the “Second Time of
Delivery”, and each such time and date for delivery is herein called a “Time of
Delivery”.
(b) The
documents to be delivered at each Time
of
Delivery by or on behalf of the parties hereto pursuant to Section 9
hereof, including the cross-receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 9(j) hereof, will be
delivered at the offices of Xxxxxx Xxxxxx & Xxxxxxx llp
(the
“Closing Location”), and the Shares will be delivered at the office of DTC or
its designated custodian, all at such Time of Delivery. A meeting will be held
at the Closing Location at [____] p.m.,
New
York City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, “New York Business Day” shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on
which banking institutions in New York City are generally authorized or
obligated by law or executive order to close.
5. The
Company acknowledges and agrees that (i) the purchase and sale of the
Shares pursuant to this Agreement is an arm’s-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the
other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the agent
or fiduciary of the Company, (iii) no Underwriter has assumed an advisory
or fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether
such
Underwriter has advised or is currently advising the Company on other matters)
or any other obligation to the Company in connection therewith except the
obligations expressly set forth in this Agreement and (iv) the Company has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the Underwriters,
or
any of them, has rendered advisory services of any nature or in any respect,
or
owes a fiduciary or similar duty to the Company, in connection with such
transaction or the process leading thereto.
-8-
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company, on the one hand, and the Underwriters, or any of
them, on the other, with respect to the subject matter hereof.
The
Company and each of the Underwriters hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
6. The
Company agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close
of business on the second business day following the execution and delivery
of
this Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to the last
Time of Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof, of
the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been
filed and to furnish you with copies thereof; to file promptly all material
required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other
prospectus in respect of the Shares, of the suspension of the qualification
of
the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement
or
the Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or other prospectus or suspending any such qualification,
to promptly use its best efforts to obtain the withdrawal of such
order;
(b) Promptly
from time to time to take such action as you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions
as you may request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
-9-
(c) Prior
to
10:00 a.m., New York City time, on the New York Business Day next succeeding
the
date of this Agreement and from time to time, to furnish the Underwriters with
written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act)
is required at any time prior to the expiration of nine months after the time
of
issue of the Prospectus in connection with the offering or sale of the Shares
and if at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made when such Prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the Act) is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter
and
to any dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a supplement
to
the Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus
(or
in lieu thereof, the notice referred to in Rule 173(a) under the Act) in
connection with sales of any of the Shares at any time nine months or more
after
the time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many written
and
electronic copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To
make
generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During
the period (the initial “Lock-Up Period”) beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the
Shares, including but not limited to any securities that are convertible into
or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to the exercise of stock
options or warrants outstanding as of, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), without the prior written consent of Xxxxxx Xxxxxx Partners LLC
and
Xxxxxxxxxxx & Co. Inc.; provided, however, that if (1) during the last
17 days of the initial Lock-Up Period, the Company releases earnings results
or
announces material news or a material event or (2) prior to the expiration
of the initial Lock-Up Period, the Company announces that it will release
earnings results during the 15-day period following the last day of the initial
Lock-Up Period, then in each case the Lock-Up Period will be automatically
extended (in no event beyond the 34th day following the last day of the initial
Lock-Up Period) until the expiration of the 18-day period beginning on the
date
of release of the earnings results or the announcement of the material news
or
material event, as applicable, unless Xxxxxx Xxxxxx Partners LLC and Xxxxxxxxxxx
& Co. Inc. waive, in writing, such extension; and to provide you and each
stockholder subject to the Lock-Up Period pursuant to the lock-up agreements
described in Section 9(h) with prior notice of any such announcement that gives
rise to an extension of the Lock-Up Period;
-10-
(f) Unless
otherwise publicly available in electronic format on the website of the Company
or the Commission, to furnish to its stockholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet and
statements of operations, stockholders’ equity and cash flows of the Company and
its consolidated subsidiaries certified by its independent public accountants)
and, as soon as practicable after the end of each of the first three quarters
of
each fiscal year (beginning with the fiscal quarter ending after the effective
date of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(g) During
the period of one year from the effective date of the Registration Statement,
unless otherwise publicly available in electronic format on the website of
the
Company or the Commission, to furnish to you copies of all reports or other
communications (financial or other) furnished to the Company’s stockholders, and
to deliver to you (i) as soon as they are available, copies of any reports
and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts
of
the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To
use
the net proceeds from the sale of the Shares pursuant to this Agreement in
the
manner specified in the Pricing Prospectus and the Prospectus under the caption
“Use of Proceeds”;
(i) If
the
Company elects to rely upon Rule 462(b), to file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and at
the
time of filing to either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111 under the Act; and
(j) Upon
request of any Underwriter, to furnish, or cause to be furnished, to such
Underwriter an electronic version of the Company’s trademarks, servicemarks and
corporate logo for use on the website, if any, operated by such Underwriter
for
the purpose of facilitating the on-line offering of the Shares (the “License”);
provided, however, that the License shall be used solely for the purpose
described above, is granted without any fee and may not be assigned or
transferred.
-11-
7.
(a) The
Company represents and agrees that, without the prior consent of Xxxxxx Xxxxxx
Partners LLC, it has not made and will not make any offer relating to the Shares
that would constitute a “free writing prospectus” as defined in Rule 405
under the Act; each Underwriter represents and agrees that, without the prior
consent of the Company and Xxxxxx Xxxxxx Partners LLC, it has not made and
will
not make any offer relating to the Shares that would constitute such a free
writing prospectus; and any such free writing prospectus the use of which has
been consented to by the Company and Xxxxxx Xxxxxx Partners LLC is listed on
Schedule II hereto;
(b) The
Company has complied and will comply with the requirements of Rule 433
under the Act applicable to any Issuer Free Writing Prospectus, including timely
filing with the Commission or retention where required and legending; and the
Company represents that it has satisfied and agrees that it will satisfy the
conditions under Rule 433 under the Act to avoid a requirement to file with
the Commission any electronic road show; and
(c) The
Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to
Xxxxxx Xxxxxx Partners LLC and, if requested by Xxxxxx Xxxxxx Partners LLC,
will
prepare and furnish without charge to each Underwriter an Issuer Free Writing
Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this covenant shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing (including via
electronic mail) to the Company or its counsel by an Underwriter through Xxxxxx
Xxxxxx Partners LLC or Xxxxxxxxxxx & Co. Inc., or their counsel, expressly
for use therein.
8. The
Company covenants and agrees with the several Underwriters that (a) the
Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing
of the Registration Statement, any Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus and amendments and supplements thereto
and
the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among Underwriters,
this Agreement, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection
with the qualification of the Shares for offering and sale under state
securities or Blue Sky laws as provided in Section 6(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the related Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on The
NASDAQ Global Market; and (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing
any
required review by FINRA of the terms of the sale of the Shares; (vi) the
cost of preparing stock certificates; (vii) the cost and charges of any
transfer agent or registrar; (viii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Shares; and (ix) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this
Section 8.
-12-
9. The
obligations of the Underwriters hereunder, as to the Shares to be delivered
at
each Time of Delivery, shall be subject, in their discretion, to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance with
Section 6(a) hereof; all material required to be filed by the Company
pursuant to Rule 433(d) under the Act shall have been filed with the
Commission within the applicable time period prescribed for such filing by
Rule 433; if the Company has elected to rely upon Rule 462(b) under
the Act, the Rule 462(b) Registration Statement shall have become effective
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; no stop order suspending or
preventing the use of the Prospectus or any Issuer Free Writing Prospectus
shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) Xxxxxx
Xxxxxx & Xxxxxxx llp,
counsel
for the Underwriters, shall have furnished to you their written opinion and
letter, dated such Time of Delivery, in the forms attached as Annex II(a)
hereto;
(c) Xxxxxxxx
& Xxxxxx, LLP, counsel for the Company, shall have furnished to you their
written opinion and letter, dated such Time of Delivery, in the forms attached
as Annex II(b) hereto;
(d) On
the
date of the Prospectus at a time prior to the execution of this Agreement,
at
9:30 a.m., New York City time, on the effective date of any post-effective
amendment to the Registration Statement filed subsequent to the date of this
Agreement and also at each Time of Delivery, Deloitte & Touche LLP and
PricewaterhouseCoopers LLP shall have each furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto (the
executed copies of the letters delivered prior to the execution of this
Agreement are attached as Annex I(a) and Annex I(b) hereto and drafts
of the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each Time
of
Delivery are attached as Annex I(c) and Annex I(d)
hereto);
-13-
(e) (i) Neither
the Company nor any of its subsidiaries shall have sustained since the date
of
the latest audited financial statements included in the Pricing Prospectus
any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or
contemplated in the Pricing Prospectus, and (ii) since the respective dates
as of which information is given in the Pricing Prospectus there shall not
have
been any material change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the business, operations, assets, condition
(financial or otherwise) or results of operations of the Company and its
consolidated subsidiaries, otherwise than as set forth or contemplated in the
Pricing Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of Xxxxxx Xxxxxx Partners LLC so
material and adverse as to make it impracticable or inadvisable to proceed
with
the public offering or the delivery of the Shares being delivered at such Time
of Delivery on the terms and in the manner contemplated in the Pricing
Prospectus;
(f) On
or
after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on The New York Stock Exchange or The NASDAQ
Global Market; (ii) a suspension or material limitation in trading in the
Company’s securities on The NASDAQ
Global Market; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York or California state authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v) in the
judgment of Xxxxxx Xxxxxx Partners LLC makes it impracticable or inadvisable
to
proceed with the public offering or the delivery of the Shares being delivered
at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(g) The
Shares to be sold at such Time of Delivery shall have been duly listed, subject
to notice of issuance, on The NASDAQ Global Market;
(h) The
Company shall have obtained and delivered to the Underwriters executed copies
of
an agreement from each of the Company’s officers, directors and stockholders
(other than each such person (other than an officer or director) who holds,
in
the aggregate, not more than [ ] percent of the
aggregate number of shares of Stock outstanding at the First Time of Delivery),
as listed on Schedule III hereto, substantially to the effect set forth in
Annex
III hereto;
(i) The
Company shall have complied with the provisions of Section 6(c) hereof with
respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of this Agreement; and
(j) The
Company shall have furnished or caused to be furnished to you at such Time
of
Delivery certificates of officers of the Company satisfactory to you as to
the
accuracy of the representations and warranties of the Company herein at and
as
of such Time of Delivery, as to the performance by the Company of all of its
respective obligations hereunder to be performed at or prior to such Time of
Delivery, and as to such other matters as you may reasonably request, the
Company shall have furnished or caused to be furnished to you at such Time
of
Delivery certificates as to the matters set forth in subsections (a) and
(e) of this Section, and the Company and you shall have executed and mutually
delivered at such Time of Delivery the cross-receipt for the
Shares.
-14-
10.
(a) The
Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter
may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in conformity with written information
furnished (including via electronic mail) to the Company or its counsel by
any
Underwriter through Xxxxxx Xxxxxx Partners LLC or Xxxxxxxxxxx & Co. Inc., or
their counsel, expressly for use therein.
(b) Each
Underwriter will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus,
or any amendment or supplement thereto, or any Issuer Free Writing Prospectus,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, in each case to the extent, but only to
the
extent, that such untrue statement or alleged untrue statement or omission
or
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon
and
in conformity with written information furnished (including via electronic
mail)
to the Company or its counsel by such Underwriter through Xxxxxx Xxxxxx Partners
LLC or Xxxxxxxxxxx & Co. Inc., or their counsel, expressly for use therein;
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
-15-
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise
than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and,
to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory
to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or
claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or
on behalf of any indemnified party.
(d) If
the
indemnification provided for in this Section 10 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as
a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection with
the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and
commissions received by the Underwriters, in each case as set forth in the
table
on the cover page of the Prospectus. The relative fault shall be determined
by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to
the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
-16-
(e) The
obligations of the Company under this Section 10 shall be in addition to
any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 10 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about
to
become a director of the Company) and to each person, if any, who otherwise
controls the Company within the meaning of the Act.
11. (a) If
any Underwriter shall default in its obligation to purchase the Shares which
it
has agreed to purchase hereunder at a Time of Delivery, you may in your
discretion arrange for you or another party hereto or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after
such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party hereto or other parties satisfactory
to
you to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Shares, or the Company notifies you that it has so
arranged for the purchase of such Shares, you or the Company shall have the
right to postpone a Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term “Underwriter” as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If,
after
giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, then the Company shall have
the
right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made;
but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If,
after
giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased exceeds one-eleventh of the aggregate number of all of the Shares
to
be purchased at such Time of Delivery, or if the Company shall not exercise
the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company
to sell the Optional Shares) shall thereupon terminate, without liability on
the
part of any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 8
hereof and the indemnity and contribution agreements in Section 10 hereof;
but
nothing herein shall relieve a defaulting Underwriter from liability for its
default, and notwithstanding the foregoing or any other provision of this
Agreement, the Company shall not be required under Section 8 to pay any
expenses of any defaulting Underwriter.
12. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or other controlling person of the Company, and
shall
survive delivery of and payment for the Shares.
13. If
this
Agreement shall terminate pursuant to Section 11 hereof, the Company shall
not then be under any liability to any Underwriter except as provided in
Sections 8 and 10 hereof; but, if for any other reason any Shares are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and
delivery of the Shares not so delivered, and the Company shall then be under
no
further liability to any Underwriter in respect of the Shares not so delivered
except as provided in Sections 8 and 10 hereof.
-17-
14. In
all
dealings hereunder, you shall act on behalf of each of the Underwriters, and
the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by you as one
of
the representatives.
All
statements, requests, notices and agreements hereunder shall be in writing,
and
if to the Underwriters shall be delivered or sent by mail or facsimile
transmission to you as one of the representatives in
care
of Xxxxxx Xxxxxx Partners LLC, Xxx
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, Attention: General
Counsel (fax no.: 000-000-0000); and
if to
the Company shall be delivered or sent by mail or facsimile transmission to
the
address of the Company set forth in the Registration Statement, Attention:
General Counsel (fax no.: 000-000-0000); provided, however, that
(i) any notice to an Underwriter pursuant to Section 10(c) hereof
shall be delivered or sent by mail or facsimile transmission to such Underwriter
at its address set forth in its Underwriters’ Questionnaire, which address will
be supplied to the Company, and (ii) notices under Section 6(e) to any
signatory to an agreement referred to in Section 9(h) shall be delivered or
sent by mail or facsimile transmission to the address listed on the signature
page thereto. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
15. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters and the Company and, to the extent provided in Sections 10 and
12 hereof, the officers and directors of the Company and each person who
controls the Company, or any Underwriter, and their respective heirs, legatees,
executors, administrators, legal representatives, successors and assigns, and
no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
16. Time
shall be of the essence of this Agreement. As used herein, the term “business
day” shall mean any day when the Commission’s office in Washington, D.C. is open
for business.
17. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
18. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
19. Notwithstanding
anything herein to the contrary, the Company is authorized to disclose to any
persons the U.S. federal and state income tax treatment and tax structure of
the
potential transaction contemplated by this Agreement and all materials of any
kind (including tax opinions and other tax analyses) provided to the Company
relating to that treatment and structure, without the Underwriters imposing
any
limitation of any kind, except that any information relating to the tax
treatment and tax structure shall remain confidential (and the foregoing clause
shall not apply) to the extent necessary to enable any person to comply with
applicable securities laws. For this purpose, “tax structure” is limited to any
facts that may be relevant to that treatment.
-18-
If
the
foregoing is in accordance with your understanding, please sign and return
to us
[ ] counterparts of this Agreement as executed by you and Xxxxxxxxxxx & Co.
Inc., and upon the acceptance hereof by you and Xxxxxxxxxxx & Co. Inc., on
behalf of each of the Underwriters, as indicated by your returning to us of
such
counterparts, this letter and such acceptance hereof shall constitute a binding
agreement among each of the Underwriters and the Company. It is understood
that
the acceptance of this letter by you and Xxxxxxxxxxx & Co. Inc. on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination, upon request, but without warranty on your or
Xxxxxxxxxxx & Co. Inc.’s part as to the authority of the other signers
thereof.
| Very truly yours, | |||
-19-
| Digital Domain | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Accepted as of the date hereof, | |||
| Xxxxxx Xxxxxx Partners LLC | |||
| By: | |||
|
Name:
Title: |
| Xxxxxxxxxxx & Co. Inc. | |||
| By: | |||
|
Name:
Title: |
On
behalf
of each of the Underwriters
SCHEDULE
I
|
Underwriter
|
Number
of Firm
Shares
to Be
Purchased
|
Number
of Optional
Shares
to Be
Purchased
if
Maximum
Option
Exercised
|
||||
|
Xxxxxx
Xxxxxx Partners LLC
|
||||||
|
Xxxxxxxxxxx
& Co. Inc. .
|
||||||
|
Xxxxxxx
Xxxxx & Company, L.L.C.
|
||||||
|
Xxxxxxxx
Curhan Ford & Co.
|
||||||
|
GunnAllen
Financial, Inc.
|
||||||
|
Total
|
[ ]
|
[ ]
|
||||
SCHEDULE
II
ISSUER
FREE WRITING PROSPECTUSES
-2-
SCHEDULE
III
STOCKHOLDERS
SUBJECT TO LOCK-UP AGREEMENTS
ANNEX
I(a)
COMFORT
LETTER
OF DELOITTE & TOUCHE LLP DELIVERED
PRIOR
TO EXECUTION OF UNDERWRITING AGREEMENT
ANNEX
I(b)
COMFORT
LETTER
OF PRICEWATERHOUSECOOPERS LLP
DELIVERED
PRIOR TO EXECUTION OF UNDERWRITING AGREEMENT
ANNEX
I(c)
FORM
OF COMFORT
LETTER OF DELOITTE & TOUCHE LLP
TO
BE DELIVERED AT EACH TIME OF DELIVERY
ANNEX
I(d)
FORM
OF COMFORT
LETTER OF PRICEWATERHOUSECOOPERS LLP
TO
BE DELIVERED AT EACH TIME OF DELIVERY
ANNEX
II(a)
FORM
OF OPINION AND
NEGATIVE ASSURANCE
LETTER
OF UNDERWRITERS’ COUNSEL
ANNEX
II(b)
FORM
OF OPINION AND
NEGATIVE ASSURANCE
LETTER
OF COMPANY COUNSEL
ANNEX
III
FORM
OF LOCK-UP AGREEMENT
