OCLARO, INC. COMMON STOCK, $0.01 PAR VALUE UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION COPY
COMMON STOCK, $0.01 PAR VALUE
May 6, 2010
May 6, 2010
| To | the Managers named in Schedule I hereto for the Underwriters named in Schedule II hereto |
Ladies and Gentlemen:
Oclaro, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the
several underwriters named in Schedule II hereto (the “Underwriters”), for whom you are acting as
managers (the “Managers”), the number of shares of its common stock, par value $0.01 per share, set
forth in Schedule I hereto (the “Firm Shares”). The Company also proposes to issue and sell to the
several Underwriters not more than the number of additional shares of its common stock, par value
$0.01 per share, set forth in Schedule I hereto (the “Additional Shares”) if and to the extent that
you, as Managers of the offering to which this underwriting agreement (this “Agreement”) relates,
shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares
of common stock granted to the Underwriters in Section 2 hereof. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the “Shares.” The shares of common
stock, par value $0.01 per share, of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the “Common Stock.” If the firm or firms listed
in Schedule II hereto include only the Managers listed in Schedule I hereto, then the terms
“Underwriters” and “Managers” as used herein shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, (the file number of which is set forth in Schedule
I hereto) on Form S-3, relating to certain securities (the “Shelf Securities”), including the
Shares, to be issued from time to time by the Company. The registration statement as amended to
the date of this Agreement, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the
Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the
“Registration Statement”, and the related prospectus covering the Shelf Securities dated October
19, 2007 in the form first used to confirm sales of the Shares (or in the form first made available
to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as
supplemented by the prospectus supplement specifically relating to the Shares in the form first
used to confirm sales of the Shares (or in
the form first made available to the Underwriters by the
Company to meet
requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred
to as the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the
Prospectus. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in
Rule 405 under the Securities Act, “Time of Sale Prospectus” means the preliminary prospectus dated
April 29, 2010, together with the free writing prospectuses, if any, each identified in Schedule I
hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in
Rule 433(h)(5) under the Securities Act that has been made available without restriction to any
person. As used herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as used herein
with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any
preliminary prospectus or free writing prospectus shall include all documents subsequently filed by
the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with
each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by the Commission. At the time the
Registration Statement was originally declared effective by the Commission, the Company met the
then applicable requirements for use of Form S-3 under the Securities Act. The Company meets the
requirements for use of Form S-3 under the Securities Act specified in Rule 5110(b)(7)(C)(i) of the
Financial Industry Regulatory Authority, Inc.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any 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,
(iii) the Registration Statement as of the date hereof does not contain any 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, (iv) the Registration Statement and the Prospectus comply,
and as amended or supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
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thereunder, (v) the Time
of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the
offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date
(as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, will not, contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (vi) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading and (vii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to statements or omissions
in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Managers expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule I hereto forming part of the Time of Sale Prospectus, and electronic road
shows, if any, each furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer to, any free writing
prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
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(e) Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing (to the extent that such jurisdiction recognizes the legal concept of
good standing) under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing (to the extent that
such jurisdiction recognizes the legal concept of good standing) in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable (to the extent such jurisdiction recognizes the legal concept of
non-assessability) and are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, except as would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained or incorporated by reference in each of the Time of Sale Prospectus
and the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the Shares have been duly
authorized and are validly issued, fully paid and non-assessable.
(i) The Shares have been duly authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar rights.
(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the
certificate of incorporation or by-laws of the Company, (iii) any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
subsidiary; and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of its obligations under
this Agreement, except such as may be required
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by the securities or Blue Sky laws of the various
states or non-U.S. jurisdictions in connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and proceedings that
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or
on the power or ability of the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required
to be described in the Registration Statement or the Prospectus and are not so described; and there
are 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 or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
(o) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
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the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) There are no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company (i) to file a registration statement under
the Securities Act with respect to any securities of the Company, other than pursuant to the
Registration Rights Agreement, dated December 17, 2009, by and among the Company, the persons
listed on Schedule A thereto and Xxxxx Xxxxx, as the stockholders’ agent, or (ii) to include such
securities with the Shares registered pursuant to the Registration Statement.
(r) Neither the Company nor any of its subsidiaries or affiliates, nor any director or
officer, nor, to the Company’s knowledge, any employee, agent or representative of the Company or
of any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an
offer, payment, promise to pay, or authorization or approval of the payment or giving of money,
property, gifts or anything else of value, directly or indirectly, to any “government official”
(including any officer or employee of a government or government-owned or controlled entity or of a
public international organization, or any person acting in an official capacity for or on behalf of
any of the foregoing, or any political party or party official or candidate for political office)
to influence official action or secure an improper advantage; and the Company and its subsidiaries
and affiliates have conducted their businesses in compliance with applicable anti-corruption laws
and have instituted and maintain and will continue to maintain policies and procedures designed to
promote and achieve compliance with such laws and with the representation and warranty contained
herein.
(s) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting
requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of
jurisdictions where the Company and its subsidiaries conduct business, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency
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(collectively, the “Anti-Money Laundering
Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its subsidiaries with respect to the
Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(t) (i) The Company represents that neither the Company nor any of its subsidiaries
(collectively, the “Entity”) or any director or officer, or, to the knowledge of the Entity, any
employee, agent, affiliate or representative of the Entity, is an individual or entity (“Person”)
that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control, the United Nations
Security Council, the European Union, Her Majesty’s Treasury, or other relevant
sanctions authority (collectively, “Sanctions”), nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Entity represents and covenants that it will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
(iii) The Entity represents and covenants that, for the past five years, it has not knowingly
engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions
with any Person, or in any country or territory, that at the time of the dealing or transaction is
or was the subject of Sanctions.
(u) Each of the Company and its subsidiaries has good and marketable title in fee simple to
all real property and good and marketable title to all personal
property owned by it which is material to the business of the Company and its subsidiaries,
taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as
are described in the Time of Sale Prospectus or such as do not materially affect the value of such
property and do
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not materially 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 or its subsidiaries are held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not materially interfere with the use made and proposed
to be made of such property and buildings by the Company and its subsidiaries, in each case except
as described in the Time of Sale Prospectus.
(v) (i) The Company and its subsidiaries own, possess, or have valid, binding and enforceable
licenses or other rights to use, or can acquire such ownership or right to use on reasonable terms,
the patents, patent rights and patent applications, copyrights, trademarks, service marks, trade
names, Internet domain names, technology, confidential information, software, know-how, (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) and other intellectual property and proprietary rights necessary for or
material to the conduct of their business in the manner in which it is presently being conducted
and in the manner set forth in the Time of Sale Prospectus (collectively, the “Company Intellectual
Property”); (ii) (A) except as set forth in the Time of Sale Prospectus, neither the Company nor
any of its subsidiaries has received any challenge (including without limitation, notices of
expiration) to the validity or enforceability of any patent or patent application that is material
to the conduct of the business of the Company and its subsidiaries, taken as a whole (collectively,
the “Company Patents”), from any third party or governmental authority, and the Company and its
subsidiaries have made all filings and paid all fees necessary to maintain any Company Patents
owned by any of them, and (B) except as set forth in the Time of Sale Prospectus, neither the
Company nor any of its subsidiaries has received any challenge (including without limitation,
notices of expiration) to the validity or enforceability of such other Company Intellectual
Property that is material to the conduct of the business of the Company and its subsidiaries, taken
as a whole, from any third party or governmental authority, and the Company and its
subsidiaries have made all filings and paid all fees necessary to maintain any Company Intellectual
Property owned by any of them; (iii) the Company and its subsidiaries have taken reasonable
measures necessary to secure their interests in Company Intellectual Property, including the
confidentiality of all material trade secrets and confidential information which constitutes
Company Intellectual Property, and to secure assignment of Company Intellectual Property from its
employees and contractors; (iv) the Company is not aware of any Company Intellectual Property
required to be described in the Time of Sale Prospectus that is not so described; (v) except as set
forth in the Time of Sale Prospectus, neither
the Company nor any of its subsidiaries has received any claim of infringement or
misappropriation of (and the Company does not know of any infringement or misappropriation of)
intellectual property rights of others by the Company or any of its subsidiaries (A) with respect
to the Company’s products, technology or Patents or (B) with respect to the Company Intellectual
Property, in either case, if
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an unfavorable decision, ruling or finding would have a material
adverse effect on the Company and its subsidiaries, taken as a whole; (vi) the Company and its
subsidiaries are not in material breach of, and have complied in all material respects with all
terms of, any license or other agreement relating to any Company Intellectual Property, and no
party to any such agreement has given the Company or its subsidiaries written notice of its
intention to cancel, terminate, alter the scope of rights under or fail to renew any such
agreement; and (vii) except as set forth in the Time of Sale Prospectus, no suit or other
proceeding is pending against the Company or any of its subsidiaries concerning any agreement
concerning the Company Intellectual Property, including any proceeding concerning a claim that the
Company or its subsidiaries or another person has breached any such agreement, with respect to
which an unfavorable decision, ruling or finding would have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(w) All patent applications owned by the Company and its subsidiaries and filed with the
United States Patent and Trademark Office (the “PTO”) or any foreign or international patent
authority (the “Company Patent Applications”) that are material to the conduct of their business
have been duly and properly filed; the Company has complied with its duty of candor and disclosure
to the PTO for the Company Patent Applications; the Company is not aware of any facts required to
be disclosed to the PTO that were not disclosed to the PTO and which would preclude the grant of a
patent for the Company Patent Applications; and the Company has no knowledge of any facts which
would preclude it from having clear title to the Company Patent Applications that have been
identified by the Company as being exclusively owned by the Company.
(x) No material labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that would reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(y) The Company and its subsidiaries and any “employee benefit plan” (as defined under the
Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by the Company, its
subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in
all material respects with ERISA. “ERISA Affiliate” means, with respect to the Company or a
subsidiary, any member of any group of organizations described in Sections 414(b), (c), (m) or (o)
of the Internal Revenue Code of 1986, as amended (the “Code”), of which the Company or such
subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any “employee benefit plan” established or
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maintained
by the Company, its subsidiaries or any of their ERISA Affiliates. No “employee benefit plan”
established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if
such “employee benefit plan” were terminated, would have any “amount of unfunded benefit
liabilities” (as defined under ERISA). Neither the Company, its subsidiaries nor any of their
ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or
maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by
action or failure to act, which would cause the loss of such qualification.
(z) The Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as the Company believes are
prudent and customary in the businesses in which they are engaged. The Company has no reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or obtain similar coverage from similar insurers as may be necessary to continue its
business.
(aa) The Company and each of its subsidiaries has timely filed all material federal, state,
local and foreign income and franchise tax returns required to be filed and are not in default in
the payment of any taxes which were payable pursuant to said returns or any assessments with
respect thereto, other than any that the Company or such subsidiary is contesting in good faith.
There is no pending dispute with any taxing authority relating to any of such returns, and, except
as described in the Time of Sale Prospectus, the Company has no knowledge of any proposed liability
for any tax to be imposed upon the properties or assets of the Company or any of its subsidiaries
for which there is not an adequate reserve reflected in the Company’s financial statements included
in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(bb) The historical financial statements (including the related notes and supporting schedule)
contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, (i) comply in all material respects with the applicable requirements under the
Securities Act and the Exchange Act, (ii) present fairly in all material respects the
financial position, results of operations and cash flows of the entities purported to be shown
thereby on the basis stated therein at the respective dates or for the respective periods, and
(iii) have been prepared in accordance with accounting principles generally accepted in the United
States of America consistently applied throughout the periods involved, except to the extent
disclosed therein. Nothing has come to the attention of the Company that has caused it to believe
that the statistical and
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market-related data included in the Registration Statement, the Time of
Sale Prospectus and the Prospectus is not based on or derived from sources that are reliable and
accurate in all material respects.
(cc) The Company maintains 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 U.S. 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. Except as described in the Time of Sale Prospectus, since the end of
the Company’s most recent audited fiscal year, there has been (i) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated) and (ii) no change
in the Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial reporting.
(dd) Except as described in the Time of Sale Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.
(ee) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act.
(ff) The Company is in compliance, in all material respects, with all applicable provisions of
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder.
(gg) Each material contract, agreement and license to which the Company or any of its
subsidiaries is bound is valid, binding, enforceable, and in full force and effect against the
Company or its subsidiaries, as applicable, and, to
the knowledge of the Company, each other party thereto, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in law or equity). Except as described in
the Time of Sale Prospectus, neither the Company nor, to the knowledge of the Company, any other
party is in breach or default in any material respect with respect to any such
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contract, agreement
or license, and, to the knowledge of the Company, no event has occurred which with notice or lapse
of time would constitute a material breach or default, or permit termination, modification, or
acceleration, under any such contract, agreement or license. No party has repudiated any material
provision of any such contract, agreement or license.
(hh) The Company and its subsidiaries possess, and are in compliance with the terms of, all
adequate certificates, authorizations, franchises, licenses and permits (“Permits”) necessary to
the conduct of the business now conducted by them, except for such failure to possess any such
Permit would not have a material adverse effect on the Company and its subsidiaries, taken as a
whole; and the Company and its subsidiaries have not received any notice of proceedings relating to
the revocation or modification of any Permits that, if determined adversely to the Company or any
of its subsidiaries, would have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(ii) Except pursuant to this Agreement, there is no broker, finder or other party that is
entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a
result of any transactions contemplated by this Agreement.
(jj) The Shares are an “actively-traded security” excepted from the requirements of Rule 101
of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective numbers of Firm Shares set forth in Schedule II hereto
opposite its name at the purchase price set forth in Schedule I hereto (the “Purchase Price”).
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to the number of
Additional Shares set forth in Schedule I hereto at the Purchase Price. You may exercise this
right on behalf of the Underwriters in whole or from time to time in part by giving written notice not
later than 30 days after the date of the Prospectus. Any exercise notice shall specify the number
of Additional Shares to be purchased by the Underwriters and the date on which such shares are to
be purchased. Each purchase date must be at least three full business days after the written
notice is given and may not be earlier than the closing date for the Firm Shares nor later than
five full business days after the date of such notice. Additional Shares may
12
be purchased as
provided in Section 4 hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. On each day, if any, that Additional Shares are to be
purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number of Additional
Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in
Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
3. Public Offering. The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public upon the terms set forth in the
Prospectus.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal
or other funds immediately available in New York City on the closing date and time set forth in
Schedule I hereto, or at such other closing time on the same or such other closing date, not later
than the fifth business day thereafter, as may be designated in writing by you. Such closing time
and date are hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall be made to the Company in Federal or other funds
immediately available in New York City on the Option Closing Date specified in the corresponding
notice described in Section 2 or at such other closing time on the same or on such other closing
date, in any event not later than the fifth business day thereafter, as may be designated in
writing by you.
The Firm Shares and the Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with the transfer of the
Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
13
(i) 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
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Day, outside
counsel for the Company, dated the Closing Date, in form and substance reasonably acceptable to the
Underwriters and substantially in the form of Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx
LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably
acceptable to the Underwriters.
The opinion of counsel for the Company described in Section 5(c) above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from each of Xxxxx Xxxxxxxx LLP, Ernst & Young LLP and Deloitte &
Touche LLP,
14
independent public accountants, containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial information contained in the Registration Statement, the Time of
Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date from
Xxxxx Xxxxxxxx LLP shall use a “cut-off date” not earlier than the date hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between you
and the executive officers and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, delivered to you on or before
the date hereof, shall be in full force and effect on the Closing Date.
(g) At the Closing Date, the Company shall have used its best efforts to list the Shares on
the NASDAQ Global Market.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Shares.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the Registration Statement (including
exhibits thereto and documents incorporated by reference therein) and to deliver to each of the
Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time
of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment
or supplement to which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be
filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
15
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time
of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of
Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof
the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
16
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request; provided that, in no event, shall the
Company be obligated to qualify as a foreign corporation or to take any action that would subject
it to general service of process in any jurisdiction where it is not presently qualified or where
it would be subject to taxation as a foreign corporation.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and expenses of the
Company’s counsel and the Company’s accountants in connection with the registration and delivery of
the Shares under the Securities Act and all other fees or expenses incurred by it in connection
with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time
of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company and amendments and supplements to any of the foregoing, including
the filing fees payable to the Commission relating to the Shares (within the time required by Rule
456(b)(1) under the Securities Act, if applicable), all printing costs associated therewith, and
the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the
Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost
of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer
and sale of the Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as provided in
Section 6(g) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all costs
and expenses incident to listing the Shares on the NASDAQ Global Market, (v) the cost of printing
certificates representing the Shares, (vi) the costs and charges of any transfer agent, registrar
or depositary, (vii) the costs and expenses of the Company relating to investor presentations on
any “road show” undertaken in connection with the marketing of the offering of the Shares,
including, without limitation, expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show presentations with
the prior approval of
17
the Company, travel and lodging expenses of the representatives and officers
of the Company and any such consultants, and the cost of any aircraft chartered in connection with
the road show, (viii) the document production charges and expenses associated with printing this
Agreement and (ix) all other costs and expenses of the Company incident to its performance of the
obligations of the Company hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and
Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected with any offers they
may make.
(j) If the third anniversary of the initial effective date of the Registration Statement
occurs before all the Shares have been sold by the Underwriters, prior to the third anniversary to
file a new shelf registration statement and to take any other action necessary to permit the public
offering of the Shares to continue without interruption; references herein to the Registration
Statement shall include the new registration statement declared effective by the Commission.
(k) To prepare a final term sheet relating to the offering of the Shares, containing only
information that describes the final terms of the offering in a form consented to by the Managers,
and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the
Securities Act following the date the final terms have been established for the offering of the
Shares.
The Company also covenants with each Underwriter that, without the prior written consent of
the Managers identified in Schedule I with the authorization to release this lock-up on behalf of
the Underwriters, it will not, during the restricted period set forth in Schedule I hereto,
(1) offer, pledge, 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, lend, 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 (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or
(3) file any registration statement with the Commission relating to the offering of any shares of
Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.
The foregoing sentence shall not apply to (a) the Shares to be sold hereunder, (b) the issuance by
the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion
of a security outstanding on the date hereof that is described in the Prospectus or of
18
which the
Underwriters have been advised in writing, or (c) the establishment of a trading plan pursuant to
Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that such
plan does not provide for the transfer of Common Stock during the 90-day restricted period and no
public announcement or filing under the Exchange Act regarding the establishment of such plan shall
be required of or voluntarily made by or on behalf of the undersigned or the Company.
Notwithstanding the foregoing, if (a) during the last 17 days of the 90-day restricted period the
Company issues an earnings release or material news or a material event relating to the Company
occurs; or (b) prior to the expiration of the 90-day restricted period, the Company announces that
it will release earnings results during the 16-day period beginning on the last day of the 90-day
period, the restrictions imposed by this agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event. The Company shall promptly notify Xxxxxx Xxxxxxx & Co.
Incorporated and Citigroup Global Markets Inc. of any earnings release, news or event that may give
rise to an extension of the initial 90-day restricted period.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter
8. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, each person, if any,
who controls any Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405
under the Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter
19
furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus or the Prospectus or any amendment or supplement thereto.
(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 Section 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonably incurred fees and
expenses of more than one separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by the Managers authorized to appoint counsel under this Section set
forth in Schedule I hereto, in the case of parties indemnified pursuant to Section 8(a), and by the
Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or
20
threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) 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 hand from the offering of the Shares or (ii) if the allocation provided
by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, 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 hand in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the net proceeds from the offering of
the Shares (before deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters bear to the aggregate initial public offering price of
the Shares set forth in the Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand 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
or by the Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Underwriters’ respective
obligations to contribute pursuant to this Section 8 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 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 that
does not take account of the equitable considerations referred to in Section 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
21
Notwithstanding the provisions of this
Section 8, 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 that 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 Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 8 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.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter, any person controlling any
Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and payment for any of the
Shares.
9. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade or
other relevant exchanges, (ii) trading of any securities of the Company shall have been suspended
on any exchange or
in any over-the-counter market, (iii) a material disruption in securities settlement, payment
or clearance services in the United States shall have occurred, (iv) any moratorium on commercial
banking activities shall have been declared by Federal or New York State authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in financial markets
or any calamity or crisis that, in your judgment, is material and adverse and which, singly or
together with any other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms
and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has
22
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 not more than one-tenth of the aggregate
number of the Shares to be purchased on such 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 II 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 you may specify, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, 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 one-tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to you and the Company for the 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 or the Company. In any such case either you or the Company
shall have the right to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement, in the Time of Sale
Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional
Shares and the aggregate number of Additional Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option
Closing Date, the non-defaulting Underwriters shall have the option
to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on
such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence of such default.
Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
23
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at the address set forth in
Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set
forth in Schedule I hereto.
[Remainder of the page intentionally left blank]
24
| Very truly yours, Oclaro, Inc. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Chief Financial Officer | |||
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
Citigroup Global Markets Inc.
| Acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto. |
||||
By:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |||
By: |
/s/ Xxxxxx Brass | |||
| Title: Executive Director | ||||
By:
|
Citigroup Global Markets Inc. | |||
By: |
/s/ Xxx Xxxxx | |||
| Name: Xxx Xxxxx | ||||
| Title: Managing Director | ||||
25
SCHEDULE I
Managers: |
||
Managers’ consent required to
authorize release of lock-up
under Section 6:
|
Xxxxxx Xxxxxxx & Co. Incorporated Citigroup Global Markets Inc. | |
Managers authorized to appoint
counsel under Section 8(c):
|
Xxxxxx Xxxxxxx & Co. Incorporated Citigroup Global Markets Inc. | |
Registration Statement File No.:
|
333-145665 | |
Time of Sale Prospectus
|
1. Prospectus dated October 19,
2007 relating to the Shelf
Securities |
|
2. The preliminary prospectus
supplement dated April 29, 2010
relating to the Shares |
||
Lock-up Restricted Period:
|
90 days | |
Title of Shares to be purchased:
|
Common stock, par value $0.01 per share | |
Number of Firm Shares:
|
6,000,000 | |
Number of Additional Shares
|
900,000 | |
Purchase Price:
|
$11.34 a share | |
Initial Public Offering Price
|
$12.00 a share | |
Closing Date and Time:
|
May 12, 2010; 7 a.m. (CA Time) | |
Closing Location:
|
Xxxxxx & Xxxxxxx LLP 000 Xxxxx Xxxxx Xxxxx Xxxx, XX 00000 |
|
Address for Notices to Underwriters:
|
Xxxxxx Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Fax: (000) 000-0000 Attention: Equity Syndicate Desk, with |
I-1
| a copy to the Legal Department Citigroup Global Markets Inc. General Counsel Fax no. (000) 000-0000) Copy to Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx, 00000 Attention: General Counsel |
||
Address for Notices to the Company:
|
Oclaro, Inc. 0000 Xxxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: General Counsel |
I-2
SCHEDULE II
| Number of Firm Shares | ||||
| Underwriter | To Be Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
3,000,000 | |||
Citigroup Global Markets Inc. |
1,500,000 | |||
Foros Securities LLC |
900,000 | |||
Xxxxxx Xxxxxx Partners LLC |
600,000 | |||
Total: |
6,000,000 | |||
