] Shares FIRST SOLAR, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
[ ] Shares
Common Stock
August [__], 2007
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
As Representatives of the Several Underwriters
Dear Sirs:
1. Introductory . First Solar, Inc., a Delaware corporation (“Company”), agrees with the several Underwriters
named in Schedule A-1 hereto (“Underwriters”) to issue and sell to the several Underwriters
[ ] shares of its Common Stock, par value $0.001 per share (“Securities”), and the
stockholders listed on Schedule A-2 hereto (“Selling Stockholders”) propose severally to sell to
the several Underwriters an aggregate of [ ] outstanding shares of Securities (such
[ ] shares of Securities, together with the [ ] shares of Securities to be issued
and sold by the Company, being hereinafter referred to as the “Firm Securities”). Certain of the
Selling Stockholders also propose to sell to the Underwriters, at the option of the Underwriters,
an aggregate of not more than [ ] additional outstanding shares (“Optional Securities”) of
the Company’s Securities as set forth below. The Firm Securities and the Optional Securities are
herein collectively called the “Offered Securities”.
2. Representations and Warranties of the Company and the Selling Stockholders. (a)
The Company represents and warrants to, and agrees with, the several Underwriters that:
(i) A registration statement on Form S-1 (No. 333-[ ]) (“initial
registration statement”) relating to the Offered Securities, including a related
preliminary prospectus or prospectuses, has been filed with the Securities and Exchange
Commission (“Commission”) and an additional registration statement (“additional
registration statement”) relating to the Offered Securities may have been or may be filed
with the Commission pursuant to Rule 462(b) (“Rule 462(b)”) under the Securities Act of
1933, as amended (the “Act”). “Initial Registration Statement” as of any time means the
initial registration statement, in the form then filed with the Commission, including all
material incorporated by reference therein and all information contained in the additional
registration statement (if any) and then deemed to be a part of the initial registration
statement pursuant to the General Instructions of the Form on which it is filed and all
information (if any) included in a prospectus then deemed to be a part of the initial
registration statement pursuant to Rule 430C (“Rule 430C”) under the Act or retroactively
deemed to be a part of the initial registration statement pursuant to Rule 430A(b) (“Rule
430A(b)”) under the Act and that in any case has not then been superseded or modified.
“Additional Registration Statement” as of any time means the additional registration
statement, in the form then filed with the Commission, including the contents of the
Initial Registration Statement incorporated by reference therein and including all
information (if any) included in a prospectus then deemed to be a part of the additional
registration statement pursuant to Rule 430C or retroactively deemed to be a part of the
additional registration statement pursuant to Rule 430A(b) and that in any case has not
then been superseded or modified. The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the “Registration Statements”
and individually as a “Registration Statement”. “Registration Statement” as of any time
means the Initial Registration Statement and any Additional Registration Statement as of
such time. For purposes of the
foregoing definitions, information contained in a form of prospectus that is deemed
retroactively to be a part of a Registration Statement pursuant to Rule 430A shall be
considered to be included in such Registration Statement as of the time specified in Rule
430A. As of the time of execution and delivery of this Agreement, the Initial Registration
Statement has been declared effective under the Act and is not proposed to be amended. Any
Additional Registration Statement has or will become effective upon filing with the
Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered
Securities all have been or will be duly registered under the Act pursuant to the Initial
Registration Statement and, if applicable, the Additional Registration Statement. For
purposes of this Agreement, “Effective Time” with respect to the Initial Registration
Statement or, if filed prior to the execution and delivery of this Agreement, the
Additional Registration Statement means the date and time as of which such Registration
Statement was declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) (“Rule 462(c)”) under the Act. If an Additional Registration
Statement has not been filed prior to the execution and delivery of this Agreement but the
Company has advised the Representatives that it proposes to file one, “Effective Time” with
respect to such Additional Registration Statement means the date and time as of which such
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Registration Statement is filed and becomes effective pursuant to Rule 462(b). “Effective
Date” with respect to the Initial Registration Statement or the Additional Registration
Statement (if any) means the date of the Effective Time thereof. A “Registration
Statement” without reference to a time means such Registration Statement as of its
Effective Time. “Statutory Prospectus” as of any time means the prospectus included in a
Registration Statement immediately prior to that time, including any material incorporated
by reference therein and any information in a prospectus deemed to be a part thereof
pursuant to Rule 430A or 430C that has not been superseded or modified. For purposes of
the preceding sentence, information contained in a form of prospectus that is deemed
retroactively to be a part of a Registration Statement pursuant to Rule 430A shall be
considered to be included in the Statutory Prospectus as of the actual time that form of
prospectus is filed with the Commission pursuant to Rule 424(b) (“Rule 424(b)”) under the
Act. “Prospectus” means the Statutory Prospectus that discloses the public offering price
and other final terms of the Offered Securities and otherwise satisfies Section 10(a) of
the Act. “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Offered Securities in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g). “General Use Issuer Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being specified in a schedule to this Agreement.
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that
is not a General Use Issuer Free Writing Prospectus.
“Applicable Time” means [ ] p.m.
(Eastern time) on the date of this Agreement.
(ii) (A) On the Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission (“Rules and Regulations”) and did not
include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein not misleading
and (C) on the date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and Regulations, and neither of such
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documents includes, or will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or necessary to make
the statements therein not misleading. The preceding sentence does not apply to statements
in or omissions from a Registration Statement or the Prospectus based upon written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
is that described as such in Section 8(c) hereof.
(iii) (A) At the time of initial filing of the Initial Registration Statement and (ii)
at the date of this Agreement, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405, including (x) the Company or any other subsidiary in the preceding
three years not having been convicted of a felony or misdemeanor or having been made the
subject of a judicial or administrative decree or order as described in Rule 405 and (y)
the Company in the preceding three years not having been the subject of a bankruptcy
petition or insolvency or similar proceeding, not having had a registration statement be
the subject of a proceeding under Section 8 of the Act and not being the subject of a
proceeding under Section 8A of the Act in connection with the offering of the Offered
Securities, all as described in Rule 405.
(iv) As of the Applicable Time, neither (A) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time and, the preliminary prospectus,
dated August [___], 2007 (which is the most recent Statutory Prospectus distributed to
investors generally) and the documents attached to this Agreement, including the pricing
information all considered
together (collectively, the “General Disclosure Package”), nor (B) any individual
Limited Use Issuer Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from any prospectus included in the Registration
Statement or any Issuer Free Writing Prospectus in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 8(c)
hereof.
(v) The documents incorporated by reference in the General Disclosure Package and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents contained an untrue
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statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and no such documents
were filed with the Commission since the Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the execution of this
Agreement, except as set forth on Schedule [A-3] hereto
(vi) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Offered Securities or
until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such
Issuer Free Writing Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or included or would include an untrue statement of
a material fact or omitted or would omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, (A) the Company has promptly notified or will promptly
notify the Representatives and (B) the Company has promptly amended or will promptly amend
or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission. The foregoing two sentences do not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon written information furnished
to the Company by any Underwriter through the Representatives specifically for use therein,
it being
understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 8(c) hereof.
(vii) The Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as described in the General
Disclosure Package; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except where the
failure to be duly qualified or in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or otherwise),
results of operations, business or properties of the Company and its subsidiaries taken as
a whole (“Material Adverse Effect”).
(viii) Each subsidiary of the Company has been duly incorporated or formed and is an
existing corporation or other entity in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own its properties and
conduct its business as described in the
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General Disclosure Package, except where the
failure to be duly qualified or in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation or other entity in good standing in all
other jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be duly qualified or in
good standing would not, individually or in the aggregate, have a Material Adverse Effect;
all of the issued and outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable; and the capital
stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned
free from liens, encumbrances and defects, except (i) as disclosed in the General
Disclosure Package, or (ii) as would not have a Material Adverse Effect.
(ix) The Offered Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital stock of the Company
are, and, when the Offered Securities have been delivered and paid for in accordance with
this Agreement on each Closing Date (as defined below), such Offered Securities will have
been, validly issued, fully paid and nonassessable, will be consistent with the information
in the General Disclosure Package and will conform in all material respects to the
description thereof contained in the Prospectus; the stockholders of the Company have no
preemptive rights with respect to the Offered Securities.
(x) Except as disclosed in the General Disclosure Package, there are no contracts,
agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder’s fee or other like payment in connection with this offering.
(xi) Except as disclosed in the General Disclosure Package, there are no contracts,
agreements or understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the Act with respect to
any securities of the Company owned or to be owned by such person or to require the Company
to include such securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other registration
statement filed by the Company under the Act (collectively, “registration rights”).
(xii) The Offered Securities have been approved for listing on the NASDAQ Global
Market, subject to notice of issuance, under the symbol “FSLR.”
(xiii) No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the consummation of
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the
transactions contemplated by this Agreement in connection with the issuance and sale of the
Offered Securities by the Company, except (i) such as have been obtained and made on or
prior to the Closing Date and (ii) such as may be required under foreign or state
securities laws (including “Blue Sky” laws) or the rules and regulations of the National
Association of Securities Dealers, Inc. (the “NASD”).
(xiv) Except as disclosed in the General Disclosure Package, the Company and its
subsidiaries have good and marketable title to all real properties and good title to all
other properties and assets owned by them, in each case free from liens, charges,
encumbrances and defects that would individually or in the aggregate have a Material
Adverse Effect; and, except as disclosed in the General Disclosure Package, the Company and
its subsidiaries hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made or to be made
thereof by them, other than those exceptions that would not have a Material Adverse Effect.
(xv) The execution, delivery and performance of this Agreement and the issuance and
sale of the Offered Securities will not result in a breach or violation of any of the terms
and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined
below) under, or result in the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter
or by-laws of the Company or any of its subsidiaries, (ii) any statute, rule, regulation or
order of any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of their properties,
or (iii) any agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to which any of
the properties of the Company or any of its subsidiaries is subject, except, in the case of
each of clauses (ii) and (iii), where such breach, violation or default would not,
individually or in the aggregate, have a Material Adverse Effect; a “Debt Repayment
Triggering Event” means any event or condition that gives, or with the giving of notice or
lapse of time would give, the holder of any note, debenture, or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries.
(xvi) Neither the Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or in default (or with the giving of notice or lapse of time
would be in default) under any existing obligation agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which any of them is a party or by which any of them is bound or to which any
of the properties of any of them is subject, except such
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defaults that would not,
individually or in the aggregate, have a Material Adverse Effect.
(xvii) This Agreement has been duly authorized, executed and delivered by the Company.
(xviii) The Company and its subsidiaries possess, and are in compliance with the terms
of, all adequate certificates, authorizations, franchises, licenses and permits
(“Licenses”) necessary to the conduct of the business now conducted by them, except for
such failure to possess any such License would not, individually or in the aggregate, have
a Material Adverse Effect; and the Company and its subsidiaries have not received any
notice of proceedings relating to the revocation or modification of any Licenses that, if
determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(xix) No labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent that would have a Material Adverse
Effect on the Company.
(xx) The statements in the General Disclosure Package and the Prospectus under the
headings “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders”,
“Description of Capital Stock”, “Risk Factors”, “Business-Government Subsidies” and
“Business-Intellectual Property”, insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate in all material
respects.
(xxi) Except as set forth in the General Disclosure Package, (i) the Company, its
subsidiaries and the Company’s Board of Directors maintains a system of internal 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 accordance with generally
accepted accounting principles in the United States 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.
(xxii) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, to comply with Section 402 of
the Xxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Oxley Act”) and the rules and regulations
promulgated in connection with Section 402, and there has been no failure on the part of
the Company and its subsidiaries to comply with Sections 302 and 906 of the Sarbanes Oxley
Act related to certifications.
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(xxiii) A member of the Audit Committee has confirmed to the Chief Executive Officer,
Chief Financial Officer or General Counsel that, except as set forth in the General
Disclosure Package, the Audit Committee is not reviewing or investigating, and neither the
Company’s independent auditors nor its internal auditors have recommended that the Audit
Committee review or investigate, (i) adding to, deleting, changing the application of, or
changing the Company’s disclosure with respect to, any of the Company’s material accounting
policies; (ii) any matter which could result in a restatement of the Company’s financial
statements for any annual or interim period during the current or prior three fiscal years;
or (iii) any significant deficiency, material weakness or change in internal controls or
fraud involving management or other employees who have a significant role in internal
controls.
(xxiv) Except as disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings against or affecting the Company, any of its subsidiaries or
any of their respective properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of the sale of the
Offered Securities; and, to the knowledge of the Company, no such actions, suits or
proceedings are threatened.
(xxv) The financial statements and schedules included in each Registration Statement
and the General Disclosure Package present fairly in all
material respects the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements and schedules have been prepared in conformity
with the generally accepted accounting principles in the United States applied on a
consistent basis.
(xxvi) Except as disclosed in the General Disclosure Package, since the end of the
period covered by the latest audited financial statements included in the General
Disclosure Package (i) there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition (financial or
otherwise), results of operations, business or properties of the Company and its
subsidiaries, taken as a whole, (ii) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock and (iii) there has
been no material adverse change in the capital stock, short-term indebtedness, long-term
indebtedness, net current assets or net assets of the Company and its subsidiaries.
(xxvii) The Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as described in the General
Disclosure Package, will not be an “investment company” as
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defined in the Investment
Company Act of 1940 (the “Investment Company Act”).
(xxviii) The Company and its subsidiaries own, possess or can acquire on reasonable
terms adequate trademarks, trade names, patent rights, copyrights, domain names, licenses,
approvals, trade secrets, inventions, technology, know-how and other intellectual property
and similar rights, including registrations and applications for registration thereof
(collectively, “Intellectual Property Rights”) necessary to the conduct of the business now
conducted by them, and the expected expiration of any such Intellectual Property Rights
within the next two years would not, individually or in the aggregate, have a Material
Adverse Effect. Except as disclosed in the General Disclosure Package (i) to the Company’s
knowledge, there are no rights of third parties to any of the Intellectual Property Rights
owned by the Company or its subsidiaries; (ii) to the Company’s knowledge, there is no
infringement, misappropriation breach, default or other violation, or the occurrence of any
event that with notice or the passage of time would constitute any of the foregoing, by the
Company, its subsidiaries or third parties of any of the Intellectual Property Rights of
the Company or its subsidiaries; (iii) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the Company’s or any
subsidiary’s rights in or to, or the violation of any of the terms of, any of their
Intellectual Property Rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (iv) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others challenging the validity,
enforceability or scope of any such Intellectual Property
Rights, and the Company is unaware of any facts which would form a reasonable basis
for any such claim; (v) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company or any subsidiary infringes,
misappropriates or otherwise violates or conflicts with any Intellectual Property Rights or
other proprietary rights of others and the Company is unaware of any other fact which would
form a reasonable basis for any such claim; and (vi) none of the Intellectual Property
Rights used by the Company or its subsidiaries in their businesses has been obtained or is
being used by the Company or its subsidiaries in violation of any contractual obligation
binding on the Company, any of its subsidiaries in violation of the rights of any persons,
except in each case covered by clauses (i) – (vi) such as would not, if determined
adversely to the Company or any of its subsidiaries, individually or in the aggregate, have
a Material Adverse Effect.
(xxix) Each of the Company and its subsidiaries, and to the best knowledge of the
Company after due inquiry its affiliates, and any of their respective officers, directors,
agents or employees has not violated, its participation in the offering will not violate
and it has instituted and maintains policies and procedures designed to ensure continued
compliance with each of the following laws: (a) the U.S. Foreign Corrupt Practices Act of
1977 and the rules
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and regulations thereunder or (b) to the extent applicable, money
laundering statutes of all jurisdictions to which the Company, its assets or subsidiaries
are subject, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any governmental agency.
(xxx) The Company and its subsidiaries have filed all federal, state, local and
non-U.S. tax returns that are required to be filed or have requested extensions thereof,
except in any case in which the failure so to file would not have a Material Adverse
Effect; and, except as set forth in the General Disclosure Package, the Company and its
subsidiaries have paid all taxes (including any assessments, fines or penalties) required
to be paid by them, except for any such taxes, assessments, fines or penalties currently
being contested in good faith or as would not, individually or in the aggregate, have a
Material Adverse Effect.
(xxxi) The Company and its subsidiaries are insured by insurers with appropriately
rated claims paying abilities against such losses and risks and in such amounts as are
prudent and customary for the businesses in which they are engaged; all policies of
insurance insuring the Company or any of its subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all
material respects; and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its
business at a cost that would not have a Material Adverse Effect, except as set forth
in or contemplated in the General Disclosure Package.
(xxxii) Except as disclosed in the General Disclosure Package, (a)(i) neither the
Company nor any of its subsidiaries is in violation of, or has any liability under, any
federal, state, local or non-U.S. statute, law, rule, regulation, ordinance, code, other
requirement or rule of law (including common law), or legally-binding decision or order of
any domestic or foreign governmental agency, governmental body or court, relating to
pollution, to the use, handling, transportation, treatment, storage, discharge, disposal or
release of Hazardous Substances, to the protection or restoration of the environment or
natural resources (including biota), to health and safety as such relates to exposure to
Hazardous Substances, and to natural resource damages (collectively, “Environmental Laws”),
(ii) neither the Company nor any of its subsidiaries owns, occupies, operates or uses any
real property contaminated with Hazardous Substances, (iii) neither the Company nor any of
its subsidiaries is conducting or funding any investigation, remediation, remedial action
or monitoring of actual or suspected Hazardous Substances in the environment, (iv) neither
the Company nor any of its subsidiaries is liable or has received written notice alleging
liability for any release or threatened release of Hazardous Substances, including at any
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off-site treatment, storage or disposal site, (v) neither the Company nor any of its
subsidiaries is subject to any claim by any governmental agency or governmental body or
person relating to Environmental Laws or Hazardous Substances, and (vi) the Company and its
subsidiaries have received and are in compliance with all, and have no liability under any,
permits, licenses, authorizations, identification numbers or other approvals required under
applicable Environmental Laws to conduct their respective businesses, except in each case
covered by clauses (i) – (vi) such as would not individually or in the aggregate have a
Material Adverse Effect; (b) to the knowledge of the Company there are no facts or
circumstances that would reasonably be expected to result in a violation of, liability
under, or claim pursuant to any Environmental Law that would have a Material Adverse
Effect; (c) to the knowledge of the Company there are no requirements proposed for adoption
or implementation under any Environmental Law that would reasonably be expected to have a
Material Adverse Effect; and (d) in the ordinary course of its business, the Company
periodically evaluates the effect, including associated costs and liabilities, of
Environmental Laws on the business, properties, results of operations and financial
condition of it and its subsidiaries, and, on the basis of such evaluation, the Company has
reasonably concluded that such Environmental Laws will not, singly or in the aggregate,
have a Material Adverse Effect. For purposes of this subsection “Hazardous Substances”
means (A) petroleum and petroleum products, by-products or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated biphenyls and toxic mold, and (B)
any other chemical, material or substance defined or regulated as toxic or hazardous or as
a pollutant, contaminant or waste under Environmental Laws.
(xxxiii) The section entitled “Management’s Discussion and Analysis of Financial
Condition and Results of Operations—Critical Accounting Policies and Estimates” in the
Registration Statement accurately and fully describes in all material respects (A) the
accounting policies that the Company believes are the most important in the portrayal of
the Company’s financial condition and results of operations and that require management’s
most difficult, subjective or complex judgments (“Critical Accounting Policies”); (B) the
judgments and uncertainties affecting the application of Critical Accounting Policies; and
(C) the likelihood that materially different amounts would be reported under different
conditions or using different assumptions and an explanation thereof.
(xxxiv) No options or other equity awards outstanding on the date hereof
held by stockholders holding 5% or more of the Company’s
outstanding shares or by officers or directors of the Company are scheduled
to vest during the Lock-up Period (as defined below), or during any extension of such
Lock-up Period, other than any options or other equity awards held by individuals or
entities who are listed on Schedule C hereto.
(xxxv) The Company is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and files reports with the
12
Commission on the Electronic
Data Gathering, Analysis, and Retrieval system (“XXXXX”).
(xxxvi) The Company has established and 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; such disclosure controls and procedures 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.
(b) Each Selling Stockholder severally and not jointly represents and warrants to, and agrees
with, the several Underwriters that:
(i) Such Selling Stockholder has, and, at each Closing Date will have, full right,
power and authority to hold, sell, transfer and deliver the Offered Securities to be sold
by such Selling Stockholder pursuant to this Agreement; and upon the Underwriters’
acquiring possession of such Offered Securities and paying the purchase price therefor as
herein contemplated, the Underwriters will acquire their respective interests in such
Offered Securities (including, without limitation, all rights that such Selling Stockholder
had or has the power to transfer in such Offered Securities) free of any adverse claim.
(ii) (A) On the Effective Date of the Initial Registration Statement, the Initial
Registration Statement did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional Registration Statement
(if any), each Registration Statement did not
include, or will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (C) as of the Applicable Time, the
General Disclosure Package did not include any untrue statement of a material fact and did
not 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, (D) as of its
date and the Closing Date, the Prospectus, did not and will not include any untrue
statement of a material fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein not misleading,
and (E) on the date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which the Prospectus is
included, neither of the Registration Statement and the Prospectus includes, or will
include, any untrue statement of a material fact or
13
omits, or will omit, to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading; provided that with respect to the Estate of Xxxx X. Xxxxxx and Xxxxxxx, Xxxxx &
Co., this sentence shall apply only to statements in or omissions from a Registration
Statement, the General Disclosure Package or Prospectus based upon written information
furnished to the Company by or on behalf of such Selling Stockholder specifically for use
therein, it being understood that the only such information furnished to the Company by the
Estate of Xxxx X. Xxxxxx or Xxxxxxx, Xxxxx & Co. for use therein is that information
described in Section 8(b) of this Agreement. The preceding sentence does not apply to
statements in or omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
is that described as such in Section 8(c).
(iii) This Agreement has been duly authorized, executed and delivered by such Selling
Stockholder.
(iv) The execution and delivery by such Selling Stockholder of, and the performance by
such Selling Stockholder of its obligations under, this Agreement will not result in a
breach or violation of or constitute a default under any provision of applicable law, or
the formation documents of such Selling Stockholder if such Selling Stockholder is a
corporation or other entity or any material agreement or material instrument binding upon
such Selling Stockholder or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over such Selling Stockholder, and no consent, approval,
authorization or order of, or qualification with, any governmental body or agency is
required for performance by such Selling Stockholder of its obligations under
this Agreement, except such as have already been obtained or as may be required by the
securities or Blue Sky laws of the various states in connection with the offer and sale of
the Securities.
(v) Except as disclosed in the Prospectus, there are no contracts, agreements or
understandings between such Selling Stockholder and any person that would give rise to a
valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee
or other like payment in connection with this offering.
(vi) All consents, approvals, authorizations and orders necessary for the execution
and delivery by such Selling Stockholder of this Agreement, and for the sale and delivery
of the Offered Securities to be sold by such Selling Stockholder hereunder, have been
obtained.
(c) Xxxxxxx X. Xxxxxx, Xxxxx Xxxx and Xxxxxxx X. Xxxxxxx, severally and not jointly, represent
and warrant to, and agree with, the several Underwriters that:
14
(i) Such Selling Stockholder has no reason to believe that the representations and
warranties of the Company contained in Section 2(a) are not true and correct. Such Selling
Stockholder is not prompted by any information concerning the Company or its subsidiaries
which is not set forth in the Prospectus to sell the Offered Securities pursuant to this
Agreement.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company and each Selling Stockholder agrees, severally and not
jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company and each Selling Stockholder, at a purchase price of $[___] per share,
that number of Firm Securities (rounded up or down, as determined by the Representatives in their
discretion, in order to avoid fractions) obtained by multiplying [ ] Firm Securities in the
case of the Company and the number of Firm Securities set forth opposite the name of such Selling
Stockholder in Schedule A-2 hereto in the case of a Selling Stockholder, in each case, by a
fraction the numerator of which is the number of Firm Securities set forth opposite the name of
such Underwriter in Schedule A-1 hereto and the denominator of which is the total number of Firm
Securities.
The Company and the Selling Stockholders will deliver the Firm Securities to the
Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the
Representatives, against payment of the purchase price in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to the Representatives drawn to
the order of the Company or each Selling Stockholder, as applicable, at the office of Shearman &
Sterling LLP, 0000 Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, at 10:00 A.M., New York time, on
August [___],
2007, or at such other time not later than seven full business days thereafter as the
Representatives and the Company determine, such time being herein referred to as the “First Closing
Date”. For purposes of Rule 15c6-1 under the Exchange Act, the First Closing Date (if later than
the otherwise applicable settlement date) shall be the settlement date for payment of funds and
delivery of securities for all the Offered Securities sold pursuant to the offering. The
certificates for the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as the Representatives request and will be made
available for checking and packaging at the above office of Shearman & Sterling LLP at least 24
hours prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the Company and such
Selling Stockholders who propose to sell the Optional Securities from time to time not more than 30
days subsequent to the date of the Prospectus, the Underwriters may purchase all or less than all
of the Optional Securities at the purchase price per Security to be paid for the Firm Securities.
The Estate of Xxxx X. Xxxxxx and Xxxxxxx, Xxxxx & Co. agree, severally and not jointly, to sell to
the Underwriters the respective numbers of Optional Securities obtained by multiplying the number
of
15
Optional Securities specified in such notice by a fraction the numerator of which is the number
of shares set forth opposite the names of such Selling Stockholders in Schedule A-1 hereto under
the caption “Number of Optional Securities to be Sold” and the denominator of which is the total
number of Optional Securities (subject to adjustment by the Representatives to eliminate
fractions). Such Optional Securities shall be purchased from each such Selling Stockholder for the
account of each Underwriter in the same proportion as the number of
Firm Securities set forth
opposite such Underwriter’s name bears to the total number of Firm Securities (subject to
adjustment by the Representatives to eliminate fractions) and may be purchased by the Underwriters
only for the purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm Securities previously
have been, or simultaneously are, sold and delivered. The right to purchase the Optional Securities
or any portion thereof may be exercised from time to time and to the extent not previously
exercised may be surrendered and terminated at any time upon notice by the Representatives to the
Company and such Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representatives but shall be not later than five full business days
after written notice of election to purchase Optional Securities is given. The Estate of Xxxx X.
Xxxxxx and Xxxxxxx, Xxxxx & Co. will deliver the Optional Securities being purchased on each
Optional Closing Date to or as instructed by the Representatives for the accounts of the several
Underwriters in a form reasonably acceptable to the Representatives, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to the Representatives drawn to the order of each such Selling
Stockholder, at
the above office of Shearman & Sterling LLP. The certificates for the Optional Securities
being purchased on each Optional Closing Date will be in definitive form, in such denominations and
registered in such names as the Representatives request upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at the above office of
Shearman & Sterling LLP at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to
offer the Offered Securities for sale to the public as set forth in the Prospectus.
5. Certain Agreements of the Company, the several Selling Stockholders and the
Underwriters. (a) The Company agrees with the several Underwriters and the Selling
Stockholders that:
(i) The Company will file the Prospectus, in a form approved by the Representatives,
with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by the Representatives,
16
subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement. The Company will advise the Representatives promptly of any such
filing pursuant to Rule 424(b). If an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the Effective Time thereof
has not occurred as of the execution and delivery of this Agreement, the Company will file
the additional registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b) on or prior to
10:00 P.M., New York time, on the date of this Agreement or, if earlier, on or prior to the
time the Prospectus is printed and distributed to any Underwriter, or will make such filing
at such later date as shall have been consented to by the Representatives.
(ii) The Company will promptly advise the Representatives of any proposal to amend or
supplement at any time the Initial Registration Statement, any Additional Registration
Statement or any Statutory Prospectus and will not effect such amendment or supplementation
without the Representatives’ consent (which shall not be unreasonably withheld); and the
Company will also advise the Representatives promptly of (A) the effectiveness of any
Additional Registration Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement), (B) any amendment or supplementation of a Registration
Statement or any Statutory Prospectus, (C) any request by the Commission or its staff for
any amendment to any Registration Statement, for any supplement to any Statutory Prospectus
or for any additional information, (D) the institution by the
Commission of any stop order proceedings in respect of a Registration Statement or the
threatening of any proceeding for that purpose, and (E) the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered Securities
in any jurisdiction or the institution or threatening of any proceedings for such purpose.
The Company will use its reasonable best efforts to prevent the issuance of any such stop
order or the suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(iii) If, at any time when a prospectus relating to the Offered Securities is (or but
for the exemption in Rule 172 would be) required to be delivered under the Act by any
Underwriter or dealer, any event occurs 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 to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act, the Company
will promptly notify the Representatives of such event and will promptly prepare and file
with the Commission and furnish to the Underwriters and the dealers and any other dealers
upon request of the Representatives, an amendment or supplement which will correct such
statement or omission or an amendment
17
which will effect such compliance. Neither the
Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 7.
(iv) As soon as practicable, but not later than the Availability Date (as defined
below), the Company will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act. For the purpose of the preceding sentence, “Availability Date”
means the day after the end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date on which the Company is required to file its Form 10-Q for
such fiscal quarter except that, if such fourth fiscal quarter is the last quarter of the
Company’s fiscal year, “Availability Date” means the day after the end of such fourth
fiscal quarter on which the Company is required to file its Form 10-K.
(v) The Company will furnish to the Representatives copies of each Registration
Statement, each related preliminary prospectus, and, so long as a prospectus relating to
the Offered Securities is (or but for the exemption in Rule 172 would be) required to be
delivered under the Act, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representatives request. The Prospectus
shall be so furnished on or prior to 3:00 P.M., New York time, on the business day
following the execution and
delivery of this Agreement. All other documents shall be so furnished as soon as
available.
(vi) The Company will arrange for the qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Representatives may reasonably designate and
will continue such qualifications in effect so long as required for the distribution;
provided that in connection therewith, the Company will not be required to qualify as a
foreign corporation or dealer or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in excess of a nominal amount in any
jurisdiction where it is not then subject.
(vii) During the period of five years hereafter, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters, as soon as
practicable after the end of each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of the Company filed
with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as the Representatives may reasonably
request. However, so long as the Company is subject to the reporting requirements of
either Section 13 or
18
Section 15(d) of the Exchange Act and is timely filing reports with
the Commission on XXXXX, it is not required to furnish such reports or statements to the
Underwriters.
(viii) The Company will use the net proceeds received in connection with this offering
in the manner described in the “Use of Proceeds” section of the General Disclosure Package
and, except as disclosed in the General Disclosure Package, the Company does not intend to
use any of the proceeds from the sale of the Offered Securities hereunder to repay any
outstanding debt owed to any affiliate of any Underwriter.
(ix) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, stabilization
or manipulation of the price of any securities of the Company to facilitate the sale or
resale of the Offered Securities.
(x) For the period specified below (the “Lock-Up Period”), the Company will not,
directly or indirectly, take any of the following actions with respect to its Securities or
any securities convertible into or exchangeable or exercisable for any of its Securities
(“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise
dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to
purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter
into any swap, hedge or any other agreement that transfers, in whole or in part, the
economic consequences of
ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position
or liquidate or decrease a call equivalent position in Lock-Up Securities within the
meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration
statement under the Act relating to Lock-Up Securities, or publicly disclose the intention
to take any such action, without the prior written consent of the Representatives, except
(A) the Company may issue the Offered Securities or (B) issue Securities pursuant to the
exercise of options or other equity awards, or grant options to purchase common stock or
other equity awards pursuant to plans, existing on the date hereof, in the case of (B)
above subject to no further transfer during the Lock-Up Period. The initial Lock-Up Period
will commence on the date hereof and continue for 90 days after the date of the
commencement of the public offering of the Offered Securities or such earlier date that the
Representatives consent to in writing; provided, however, that if (1) during the last 17
days of the initial Lock-Up Period, the Company releases earnings results or material news
or a material event relating to the Company occurs or (2) prior to the expiration of the
initial Lock-Up Period, the Company announces that it will release earnings results during
the 16-day period beginning on the last day of the initial Lock-Up Period, then in each
case the Lock-Up Period will be extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the occurrence of the materials
news or material event, as applicable, unless the Representatives waive, in writing, such
19
extension. The Company will provide the Representatives with notice of any announcement
described in clause (2) of the preceding sentence that gives rise to an extension of the
Lock-Up Period.
(xi) The Company agrees that it will not, directly or indirectly, (i) accelerate the
vesting schedule related to any outstanding options or other equity awards held on the date
hereof or at any time during the Lock-Up Period (including any extension thereof) by any
executive officer, director, employee or other individual or entity defined as an “Eligible
Participant” in the First Solar Holdings, LLC 2003 Unit Option Plan or the First Solar,
Inc. 2006 Omnibus Incentive Compensation Plan that is not set forth on Schedule C hereto,
or (ii) issue any options or other equity awards that vest during the Lock-Up Period
(including any extension thereof) to any such officer, director, employee, individual or
entity.
(b) Each Selling Stockholder agrees with the several Underwriters and the Company that:
(i) The Company will pay all expenses incident to the performance of the obligations
of such Selling Stockholder under this Agreement, it being understood and agreed that the
only such expenses are the expenses of counsel to such Selling Stockholder.
(ii) Each Selling Stockholder agrees during the Lock-Up Period not to offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any additional
shares of the Securities of the Company or securities convertible into or exchangeable or
exercisable for any shares of Securities, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or
part, any of the economic consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any such
offer, sale, pledge or disposition, or enter into any such transaction, swap, hedge or
other arrangement, without, in each case, the prior written consent of the Representatives.
The initial Lock-Up Period will commence on the date hereof and will continue and include
the date 90 days after the date hereof or such earlier date that the Representatives
consent to in writing; provided, however, that if (1) during the last 17 days of the
initial Lock-Up Period, the Company releases earnings results or material news or a
material event relating to the Company occurs or (2) prior to the expiration of the initial
Lock-Up Period, the company announces that it will release earnings results during the
16-day period beginning on the last day of the initial Lock-Up Period, then in each case
the Lock-Up Period will be extended until the expiration of the 18 day period beginning on
the date of release of the earnings results or the occurrence of the material news or
material event, as applicable, unless the Representatives waive, in writing, such
20
extension. Such Selling Stockholder acknowledges and agrees that prior to engaging in any
transaction or taking any other action that is subject to the terms of this Section
5(b)(ii) from the date hereof to and including the 34th day following the expiration of the
initial Lock-Up Period, such Selling Stockholder will give notice thereof to the Company
and will not consummate such transaction or take any such action unless it has received
written confirmation from the Company that the Lock-Up Period (as may have been extended
pursuant to this Section 5(b)(ii)) has expired.
(iii) Notwithstanding Section 5(b)(ii) above, such Selling Stockholder may transfer
Securities (or any securities convertible thereinto or exercisable or exchangeable
therefor) to any of the following transferees who agree to be bound in writing by the terms
of Section 5(b)(ii) prior to such transfer and who receive such Securities in a transfer
not involving a disposition for value: (i) any donee(s) of one or more bona fide gifts of
Securities; (ii) any trust for the direct or indirect benefit of such Selling Stockholder
or of any familial relation thereof not more remote than first cousin, whether by blood,
marriage or adoption; (iii) any beneficiary of such Selling Stockholder pursuant to a will
or other testamentary document or applicable laws of descent; (iv) if such Selling
Stockholder is an investment fund entity that is a limited partnership, limited liability
company or equivalent foreign entity (an “Investment Fund Entity”), to any other Investment
Fund Entity under the control of such Selling Stockholder or under the control of the
general partner or managing member of such Selling Stockholder;
and/or (v) as a distribution to partners, members or stockholders of such Selling
Stockholder; provided, however, that it shall be a condition to any such transfer pursuant
to clauses (i) through (v) above that no public reports, including but not limited to
reports pursuant to Rule 144 of the Act or pursuant to Section 16 of the Exchange Act, are
required to be filed by such Selling Stockholder during the Lock-Up Period (as such may
have been extended pursuant to Section 5(b)(ii) above) and no such reports are voluntarily
filed by the undersigned during the Lock-Up Period (as such may have been extended pursuant
to Section 5(b)(ii) above). Furthermore, the undersigned may (i) sell Securities under
plans or agreements existing on the Public Offering Date that meet the requirements of Rule
10b5-1 under the Exchange Act for the pre-arranged sale of shares of common stock (“10b5-1
Plans”) or (ii) adopt a 10b5-1 Plan with respect to the Securities; provided that the
undersigned may not sell any Securities under such newly adopted Rule 10b5-1 Plan until the
Lock-Up Period (as such may have been extended pursuant to Section 5(b)(ii) above) has
expired.
(iv) Notwithstanding Section 5(b)(ii) above, Xxxxxxx, Xxxxx & Co. and its affiliates
(other than Xxxxxxx, Sachs & Co.) may engage in brokerage, investment advisory, financial
advisory, anti-raid advisory, merger advisory, financing, asset management, trading, market
making, arbitrage, principal investing and other similar activities conducted in the
ordinary course of its and its affiliates’ business.
21
6. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains
the prior consent of the Representatives, and each Underwriter represents and agrees that, unless
it obtains the prior consent of the Company and the Representatives, it has not made and will not
make any offer relating to the Offered Securities that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus consented to by the
Company and the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433,
and has complied and will comply with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including timely Commission filing where required, legending and
record keeping. The Company represents that is has satisfied and agrees that it will satisfy the
conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional
Securities to be purchased on
each Optional Closing Date will be subject to the accuracy of the representations and
warranties of the Company and the applicable Selling Stockholders herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the performance by the
Company and the applicable Selling Stockholders of their respective obligations hereunder and to
the following additional conditions precedent:
(a) The Representatives shall have received letters, dated, respectively, the date hereof and
each Closing Date, of PricewaterhouseCoopers LLP confirming that it is a registered public
accounting firm and independent public accountants within the meaning of the Securities Laws and
substantially in the form of Schedule B hereto.
(b) If the Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have occurred not later
than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later time
as shall have been consented to by the Representatives. The Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement.
Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred
(i) any change, or any development or event involving a prospective change, in the condition
(financial or otherwise), results of operations,
22
business or properties of the Company and its
subsidiaries taken as a whole which, in the judgment of the Representatives, is material and
adverse and makes it impractical or inadvisable to market Offered Securities; (ii) any downgrading
in the rating of any indebtedness or debt securities of the Company by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review its rating of any
indebtedness or debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in either U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls the effect of which is such as to make
it, in the judgment of the Representatives, impractical to market or to enforce contracts for the
sale of the Offered Securities, whether in the primary market or in respect of dealings in the
secondary market; (iv) any suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such
exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in
the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York
authorities; (vii) any major disruption of settlements of securities, payment, or clearance
services in the United States or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the judgment of the
Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or
emergency is such as to make it, in the judgment of the Representatives, impractical or inadvisable
to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.
(d) The Representatives shall have received an opinion, dated such Closing Date, of Xxxxxxx
Xxxxxx & Xxxxx LLP, counsel for the Company, in a form reasonably satisfactory to the Underwriters.
(e) The Representatives shall have received an opinion, dated such Closing Date, of Steptoe &
Xxxxxxx PLLC, intellectual property counsel for the Company, in a form reasonably satisfactory to
the Underwriters.
(f) The Representatives shall have received opinions, each dated such Closing Date, of Xxxxxxx
Xxxxxx & Xxxxx LLP, counsel for each of the Selling Stockholders other than Xxxxxxx, Sachs & Co.,
in a form reasonably satisfactory to the Underwriters. The Representatives shall also have
received opinions, each dated such Closing Date, of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP,
counsel for Xxxxxxx, Sachs & Co. in its capacity as a Selling Stockholder, in a form reasonably
satisfactory to the Underwriters. Notwithstanding the foregoing, in the case of any Optional
Closing Date, the Representatives shall receive opinions only for the Selling Stockholders that are
selling Optional Securities on such Optional Closing Date.
23
(g) The Representatives shall have received from Shearman & Sterling LLP, counsel for the
Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as
the Representatives may require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate, dated such Closing Date, of an
executive officer of the Company and a principal financial or accounting officer of the Company in
which such officers to the best of their knowledge and after reasonable investigation shall state
that: the representations and warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to such Closing Date; no stop order suspending the effectiveness
of any Registration Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional Registration Statement (if any)
satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant
to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or
(b) under the Act; and, subsequent to the respective dates of the most recent financial statements
in the General Disclosure Package, there has been no material adverse change, nor any development
or event involving a prospective
material adverse change, in the condition (financial or otherwise), results of operations,
business or properties of the Company and its subsidiaries taken as a whole except as set forth in
the General Disclosure Package or as described in such certificate. In addition, the
Representatives shall have received a certificate, dated such Closing Date, from the Company in
which the Company shall state that: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; no
stop order suspending the effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the best of the Company’s knowledge and
after reasonable investigation, are contemplated by the Commission; the Additional Registration
Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was
timely filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act; and, subsequent to the respective dates of the most recent
financial statements in the General Disclosure Package, there has been no material adverse change,
nor any development or event involving a prospective material adverse change, in the condition
(financial or otherwise), results of operations, business or properties of the Company and its
subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described
in such certificate.
(i) The Representatives shall have received a certificate, dated such Closing Date, of an
appropriate officer (in the case of the Estate of Xxxx X. Xxxxxx and Xxxxxxx, Xxxxx & Co.) or
Xxxxxxx X. Xxxxxx, Xxxxx Xxxx or Xxxxxxx X. Xxxxxxx, as the case may be, in which such officer or
Xxxxxxx X. Xxxxxx, Xxxxx Xxxx or Xxxxxxx X. Xxxxxxx shall state that the representations and
warranties of such Selling Stockholder in
24
this Agreement are true and correct and that such Selling
Stockholder has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date. Notwithstanding the foregoing,
in the case of any Optional Closing Date, the Representatives shall receive certificates only for
the Selling Stockholders that are selling Optional Securities on such Optional Closing Date.
(j) On or prior to the date hereof, the Representatives shall have received lockup letters
from each Selling Stockholder, executive officer, director and certain other stockholders of the
Company set forth on Schedule C hereto in a form reasonably satisfactory to the Underwriters.
The Company and each Selling Stockholder will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
8. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter, its partners, members,
directors, officers, employees, agents, affiliates and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an
“Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several,
to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal
or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any part of any Registration Statement
at any time, any Statutory Prospectus as of any time, the Prospectus or any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will
reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating, preparing or defending against any loss, claim,
damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party is a party thereto) whether threatened or commenced and in connection with the
enforcement of this provision with respect to any of the above as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents in reliance upon and
in conformity with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in
subsection (c) below.
25
(b) The Selling Stockholders, severally and not jointly, will indemnify and hold harmless each
Underwriter, its partners, members, directors, officers and its affiliates and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the Act, 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 any untrue statement or alleged untrue statement of
any material fact contained in any part of any Registration Statement at any time, any Statutory
Prospectus as of any time, the Prospectus 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 loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Selling Stockholders will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished to the Company by
an
Underwriter through the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of the information
described as such in subsection (c) below; provided further, however, that the indemnification
obligations of the Estate of Xxxx X. Xxxxxx and Xxxxxxx, Xxxxx & Co. apply only to statements in or
omissions from a Registration Statement or the Prospectus based upon written information furnished
to the Company by or on behalf of such Selling Stockholder, specifically for use therein, it being
understood that the only such information furnished by the Estate of Xxxx X. Xxxxxx and Xxxxxxx,
Xxxxx & Co. consists of the statement relating to such Selling Stockholder under the caption
“Principal and Selling Stockholders”. In no such case shall any Selling Stockholder be liable or
responsible for any amount in excess of the proceeds (net of underwriting discounts and commissions
but before deducting other expenses) applicable to the Offered Securities sold by such Selling
Stockholder pursuant to the transactions contemplated hereby.
(c) Each Underwriter will severally and not jointly indemnify and hold harmless the Company,
each of its directors and each of its officers who signs a Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and each Selling Stockholder (each, an “Underwriter Indemnified Party”), against any
losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become
subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of any material
fact contained in any part of any Registration Statement at any time, any Statutory Prospectus as
of any time, the Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements
26
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 based upon written information furnished to the Company by such Underwriter through
the Representatives specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by such Underwriter Indemnified Party in connection with investigating,
preparing or defending against any such loss, claim, damage, liability, action, litigation,
investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a
party thereto) whether threatened or commenced based upon any such untrue statement or omission, or
any such alleged untrue statement or omission as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the paragraph under the caption “Underwriting” and the information
contained in the thirty-first paragraph under the caption “Underwriting”.
(d) Promptly after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a), (b) or
(c) above, notify the indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability that it may have under
subsection (a), (b) or (c) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided further
that the failure to notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party otherwise than under subsection (a), (b) or (c) above. In case
any such action is brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party (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 will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement of
any pending or threatened action 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 (i) includes an unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action 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 an indemnified party.
(e) If the indemnification provided for in this Section is unavailable or insufficient to hold
harmless an indemnified party under subsection (a), (b) or (c) above, then each indemnifying party
shall contribute to the amount paid or payable by such
27
indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Selling Stockholders 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 as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the Company and the
Selling Stockholders bear to the total underwriting discounts and commissions received by the
Underwriters. 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 and the Selling Stockholders
or the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities 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 (e)
to contribute are several in proportion to their respective underwriting obligations and not joint.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8(e) 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 in this Section 8(e).
(f) The obligations of the Company and the Selling Stockholders under this Section shall be in
addition to any liability which the Company and the Selling Stockholders 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 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 director of the Company,
to each officer of the Company
28
who has signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
9. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Offered Securities hereunder on either the First or any Optional Closing
Date and the aggregate number of shares of Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total number of shares of
Offered Securities that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company and the Selling Stockholder for
the purchase of such Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to purchase on such Closing
Date. If any Underwriter or Underwriters so default and the aggregate number of shares of Offered
Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to the Representatives, the Company and
the Selling Stockholders for the purchase of such Offered Securities by other persons are not made
within 36 hours after such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company, except as provided in Section 10 (provided that if
such default occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term “Underwriter” includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the several Selling Stockholders,
of the Company or its officers and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, any Selling Stockholder, the
Company or any of their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 9 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 5 and the respective obligations of the Company, the
Selling Stockholders and the Underwriters pursuant to Section 9 shall remain in effect, and if any
Offered Securities have been purchased hereunder the representations and warranties in Section 2
and all obligations under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9 or the occurrence of any event
29
specified in
clause (iii), (iv), (vi), (vii) or (viii) of Section 7(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the Underwriters,
will be mailed, delivered or telegraphed and confirmed to Credit Suisse Securities (USA) LLC at
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD; Xxxxxxx, Sachs & Co. at 00
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Registration Department; and Xxxxxx Xxxxxxx & Co.
Incorporated at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with a
copy to the Legal Department, or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at First Solar Holdings, Inc., 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxxx 0, Xxxxx 00, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, or, if sent to the
Estate of Xxxx X. Xxxxxx, to Xxxxxxx Xxxxxxx, Xxxxxx Enterprises, 000 Xxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxx 00000, or if to Xxxxxxx X. Xxxxxx, Xxxxx Xxxx or Xxxxxxx X. Xxxxxxx, to First
Solar, Inc., 0000 X. Xxxxxx Xxxxxx #0-00, Xxxxxxx , Xxxxxxx 00000, Telephone No.: (000) 000-0000,
Fax No.: (000) 000-0000, to their respective attention, or if to Xxxxxxx, Xxxxx & Co. in its
capacity as a Selling Stockholder, to [ADDRESS]; provided, however, that any notice to an
Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers and directors and controlling
persons referred to in Section 8, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for the several
Underwriters in connection with this financing, and any action under this Agreement taken by the
Representatives will be binding upon all the Underwriters.
14. Counterparts. This Agreement may be executed 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 Agreement.
15. Absence of Fiduciary Relationship. The Company and the Selling Stockholders severally
acknowledge and agree that:
(a) The Representatives has been retained solely to act as underwriters in connection with the
sale of Offered Securities and that no fiduciary, advisory or agency relationship between the
Company and the Representatives or the Selling Stockholders and the Representatives has been
created in respect of any of the transactions contemplated by this Agreement or the Prospectus,
irrespective of whether
30
the Representatives have advised or are advising the Company or the Selling
Stockholders on other matters;
(b) the price of the Offered Securities set forth in this Agreement was established by the
Company and the Selling Stockholders following discussions and arms-length negotiations with the
Representatives and the Company and the Selling
Stockholders are capable of evaluating and understanding and understand and accept the terms,
risks and conditions of the transactions contemplated by this Agreement;
(c) the Company and the Selling Stockholders have been advised that the Representatives and
their affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and the Selling Stockholders and that the Representatives have no
obligation to disclose such interests and transactions to the Company and the Selling Stockholders
by virtue of any fiduciary, advisory or agency relationship; and
(d) the Company and the Selling Stockholders waive, to the fullest extent permitted by law,
any claims they may have against the Representatives for breach of fiduciary duty or alleged breach
of fiduciary duty and agrees that the Representatives shall have no liability (whether direct or
indirect) to the Company or the Selling Stockholders in respect of such a fiduciary duty claim or
to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including
stockholders, employees or creditors of the Company.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. THE COMPANY, THE SELLING
STOCKHOLDERS 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.
31
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement among the several Selling Stockholders, the Company and the several Underwriters
in accordance with its terms.
Very truly yours, | ||||
FIRST SOLAR, INC. | ||||
By | ||||
[Title] | ||||
ESTATE OF XXXX X. XXXXXX | ||||
By | ||||
[Title] | ||||
XXXXXXX, XXXXX & CO. | ||||
By | ||||
[Title] | ||||
XXXXXXX X. XXXXXX | ||||
XXXXX XXXX | ||||
XXXXXXX X. XXXXXXX | ||||
32
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
confirmed and accepted as of the date first above
written.
Credit Suisse Securities (USA) LLC
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
Representatives of the several Underwriters.
By
|
Credit Suisse Securities (USA) LLC | |||
By |
||||
By
|
Xxxxxxx, Sachs & Co. | |||
By |
||||
[Title] | ||||
By
|
Xxxxxx Xxxxxxx & Co. Incorporated | |||
By |
||||
[Title] |
33
SCHEDULE A-1
Number of | ||||
Firm Securities | ||||
Underwriter | to be Purchased | |||
Credit Suisse Securities (USA) LLC |
[ ] | |||
Xxxxxxx, Sachs & Co. |
[ ] | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
[ ] | |||
[Other Banks] |
[ ] | |||
Total |
[ ] |
Sch. A-1
SCHEDULE A-2
Number of | ||||||||
Number of | Optional | |||||||
Firm Securities | Securities | |||||||
Selling Stockholder | to be Sold | to be Sold | ||||||
Estate of Xxxx X. Xxxxxx |
[ ] | [ ] | ||||||
Xxxxxxx, Xxxxx & Co. |
[ ] | [ ] | ||||||
Xxxxxxx X. Xxxxxx |
[ ] | [ ] | ||||||
Xxxxx Xxxx |
[ ] | [ ] | ||||||
Xxxxxxx X. Xxxxxxx |
[ ] | [ ] | ||||||
Total |
[ ] | [ ] |
Sch. A-2
SCHEDULE B
The Representatives shall have received letters, dated, respectively, the date hereof and each
Closing Date, of PricewaterhouseCoopers LLP confirming that it is a registered public accounting
firm and independent public accountants within the meaning of the Securities Laws to the effect
that:
(i) in their opinion the audited consolidated financial statements and schedules
examined by them and included in the Registration Statements and the General Disclosure
Package comply as to form in all material respects with the applicable accounting
requirements of the Securities Laws;
(ii) with respect to the period(s) covered by the unaudited quarterly consolidated
financial statements included in the Registration Statements and the General Disclosure
Package, they have performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as described in
XX 000, Xxxxxxx Financial Information, on the unaudited quarterly consolidated financial
statements (including the noted thereto) of the Company and its consolidated subsidiaries
included in the Registration Statements and the General Disclosure Package, and have made
inquiries of certain officials of the Company who have responsibility for financial and
accounting matters of the Company and its consolidated subsidiaries as to whether such
unaudited quarterly consolidated financial statements comply as to form in all material
respects with the applicable accounting requirements of the Act and the related published
rules and regulations; they have read the latest unaudited monthly consolidated financial
statements (including the notes thereto) and the supplementary summary unaudited financial
information of the Company and its consolidated subsidiaries made available by the Company
and the minutes of the meetings of the stockholders, Board of Directors and committees of
the Board of Directors of the Company; and have made inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the Company and its
consolidated subsidiaries as to whether the unaudited monthly financial statements are
stated on a basis substantially consistent with that of the audited consolidated financial
statements included in the Registration Statement and General Disclosure Package; and on
the basis thereof, nothing came to their attention which caused them to believe that:
(A) the unaudited financial statements included in the Registration Statements
or the General Disclosure Package do not comply as to form in all material respects
with the applicable accounting requirements of the Securities Laws, or that any
material modifications should be made to the unaudited quarterly consolidated
financial statements for them to be in conformity with generally accepted
accounting principles;
(B) with respect to the period subsequent to the date of the most recent
unaudited quarterly consolidated financial statements included
Sch. B-1
in the Registration Statements or the General Disclosure Package, at a
specified date at the end of the most recent month, there were any increases in the
short-term debt or long-term debt of the Company and its consolidated subsidiaries,
or any change in stockholders’ equity or the consolidated capital stock of the
Company and its consolidated subsidiaries or any decreases in the net current
assets or net assets of the Company and its consolidated subsidiaries,
as compared with the amounts shown on the latest balance sheet included in the
General Disclosure Package; or for the period from the day after the date of the
most recent unaudited quarterly consolidated financial statements included in the
General Disclosure Package for such entities to such specified date, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated net sales, or net operating income, or in the total or per share
amounts of consolidated income before extraordinary items or] net income of the
Company and its consolidated subsidiaries, except for such changes, increases or
decreases set forth in such letter which the General Disclosure Package discloses
have occurred or may occur;
(iii) With respect to any period as to which officials of the Company have advised
that no consolidated financial statements as of any date or for any period subsequent to
the specified date referred to in (ii)(B) above are available, they have made inquiries of
certain officials of the Company who have responsibility for the financial and accounting
matters of the Company and its consolidated subsidiaries as to whether, at a specified date
not more than three business days prior to the date of such letter, there were any
increases in the short-term debt or long-term debt of the Company and its consolidated
subsidiaries, or any change in stockholders’ equity or the consolidated capital stock of
the Company and its consolidated subsidiaries or any decreases in the net current assets or
net assets of the Company and its consolidated subsidiaries, as compared with the amounts
shown on the most recent balance sheet for such entities included in the General Disclosure
Package; or for the period from the day after the date of the most recent unaudited
quarterly financial statements for such entities included in the General Disclosure Package
to such specified date, there were any decreases, as compared with the corresponding period
in the preceding year, in net sales, or net operating income, or in the total or per share
amounts of consolidated income before extraordinary items or net income of the Company and
its consolidated subsidiaries and, on the basis of such inquiries and the review of the
minutes described in paragraph (ii) above, nothing came to their attention which caused
them to believe that there was any such change, increase, or decrease, except for such
changes, increases or decreases set forth in such letter which the General Disclosure
Package discloses have occurred or may occur; and
(iv) they have compared specified dollar amounts (or percentages derived from such
dollar amounts) and other financial and statistical information contained in the
Registration Statements, each Issuer Free Writing Prospectus (other than any Issuer Free
Writing Prospectus that is an “electronic road show,”
Sch. B-2
as defined in Rule 433(h)) and the General Disclosure Package (in each case to the
extent that such dollar amounts, percentages and other financial and statistical
information are derived from the general accounting records of the Company and its
subsidiaries or are derived directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts, percentages and
other financial and statistical information to be in agreement with such results.
For purposes of this Schedule, if the Effective Time of the Additional Registration Statement is
subsequent to the execution and delivery of this Agreement, “Registration Statements” shall mean
the Initial Registration Statement and the Additional Registration Statement as proposed to be
filed shortly prior to its Effective Time, and “Prospectus” shall mean the prospectus included in
the Registration Statements. All financial statements and schedules included in material
incorporated by reference into the Registration Statements or the General Disclosure Package shall
be deemed included in the Registration Statements or the General Disclosure Package for purposes of
this Schedule.
Sch. B-3
SCHEDULE C
Lock-Up Parties
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxx
Xxxxxxx Xxxxxxx
Xxxx Xxxxxxxx
Estate of Xxxx X. Xxxxxx
JCL Holdings, LLC
Xxxxxxx, Xxxxx & Co.
Xxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxx
Xxxxxxx Xxxxxxx
Xxxx Xxxxxxxx
Estate of Xxxx X. Xxxxxx
JCL Holdings, LLC
Xxxxxxx, Xxxxx & Co.
Sch. C-1