Exhibit 1.01
_______________ SHARES
FORMFACTOR, INC.
COMMON STOCK, INCLUDING PAR VALUE $0.001 PER SHARE
UNDERWRITING AGREEMENT
DATED JUNE __, 2003
June __, 2003
June___, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Banc of America Securities LLC
Xxxxxx Xxxxxx Partners LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
FormFactor, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"UNDERWRITERS"), and certain stockholders of the Company (the "SELLING
STOCKHOLDERS") named in Schedule II hereto severally propose to sell to the
several underwriters, an aggregate of 5,500,000 shares of the Company's Common
Stock, par value $0.001 (the "FIRM SHARES") of which 5,105,305 shares are to be
issued and sold by the Company and 394,695 shares are to be sold by the Selling
Stockholders, each Selling Stockholder selling the amount set forth opposite
such Selling Stockholder's name on Schedule II hereto.
The Company also proposes to issue and sell to the several Underwriters
not more than an additional 825,000 shares of its Common Stock, par value $0.001
(the "ADDITIONAL SHARES") if and to the extent that you, as Managers of the
offering, shall have determined to exercise, on behalf of the Underwriters, the
right to purchase such shares of common stock granted to the Underwriters in
Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "SHARES." The shares of Common Stock, par value
$0.001 of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the "COMMON STOCK." The
Company and the Selling Stockholders are hereinafter sometimes collectively
referred to as the "SELLERS."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462
Registration Statement.
Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") has agreed to
reserve a portion of the Shares to be purchased by it under this Agreement for
sale to the Company's directors, officers, employees and business associates and
other parties related to the Company (collectively, "PARTICIPANTS"), as set
forth in the Prospectus under the heading "Underwriters" (the "DIRECTED SHARE
PROGRAM"). The Shares to be sold by Xxxxxx Xxxxxxx and its affiliates
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pursuant to the Directed Share Program are referred to hereinafter as the
"DIRECTED SHARES." Any Directed Shares not confirmed for purchase by any
Participants by the end of the business day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the
Prospectus.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) Based on advice from the Commission, the Registration
Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect and no
proceedings for such purpose are pending before or, to the knowledge of
the Company, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly by the Company, free and clear of
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all liens, encumbrances, equities or claims. Other than FormFactor
Germany GmbH, FormFactor Magyarovszag Licencia Hasznosito, FormFactor
K.K., FormFactor Korea, Inc. and FormFactor Europe Limited, the Company
has no subsidiaries that are "significant subsidiaries" as defined in
Rule 1-02(w) of Regulation S-X of the Securities Act (the "SIGNIFICANT
SUBSIDIARIES").
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(i) Each stockholder of the Company holding two percent (2%)
or more of the Company's outstanding securities as of the date hereof
has executed a "lock-up" agreement substantially in the form of Exhibit
A hereto.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states or
the bylaws and rules and regulations of the NASD in connection with the
offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or any statutes, regulations, contracts or other documents
that are
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required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(m) The preliminary prospectus filed as part of Amendment No.
7 to the registration statement complied when so filed in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus will not be, required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(o) Except as otherwise described in the Registration
Statement, the Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(q) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares
registered pursuant to the Registration Statement, except such as have
been duly waived.
(r) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) the
Company and its subsidiaries have not incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) the Company
has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its subsidiaries, except in
each case as described in the Prospectus.
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(s) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them which is material to the
business of the Company and its subsidiaries, taken as a whole, in each
case free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries, in
each case except as described in the Prospectus.
(t) The Company and its subsidiaries own or possess, license
or can acquire or license on reasonable terms, all material patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names currently employed by them in connection with the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
except as described in the Prospectus or which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse affect on the Company and its
subsidiaries, taken as a whole.
(u) No material labor dispute with the employees of the
Company or any of its subsidiaries exists, except as described in the
Prospectus, or, to the knowledge of the Company, is imminent; and the
Company is not aware, but without conducting any independent
investigation, of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(v) The Company and its subsidiaries are insured by the
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any of
its subsidiaries has been refused any insurance coverage sought or
applied for; and neither the Company nor any of its subsidiaries 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 on
the Company and its subsidiaries, taken as a whole, except as described
in the Prospectus.
(w) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a
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material adverse effect on the Company and its subsidiaries, taken as a
whole, except as described the Prospectus.
(x) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(y) The Registration Statement, the Prospectus and any
preliminary prospectus comply, and any amendments or supplements
thereto will comply, with any applicable laws or regulations of foreign
jurisdictions in which the Prospectus or any preliminary prospectus, as
amended or supplemented, if applicable, are distributed in connection
with the Directed Share Program.
(z) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those
obtained, is required in connection with the offering of the Directed
Shares in any jurisdiction where the Directed Shares are being offered.
(aa) The Company has not offered, or caused Xxxxxx Xxxxxxx or
its affiliates to offer, Shares to any person pursuant to the Directed
Share Program with the intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer's or supplier's level or
type of business with the Company, or (ii) a trade journalist or
publication to write or publish favorable information about the Company
or its products.
2. Representations and Warranties of the Selling Stockholders. Each of
the Selling Stockholders represents and warrants to and agrees with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of,
and the performance by such Selling Stockholder of its obligations
under, this Agreement, the Custody Agreement signed by such Selling
Stockholder and Equiserve, as Custodian, relating to the deposit of the
Shares to be sold by such Selling Stockholder (the "CUSTODY AGREEMENT")
and the Power of Attorney appointing certain individuals as such
Selling Stockholder's attorneys-in-fact to the extent set forth
therein, relating to the transactions contemplated hereby and by the
Registration Statement (the "POWER OF ATTORNEY") will not contravene
any provision of applicable law, or any agreement or other 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
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governmental body or agency is required for the performance by such
Selling Stockholder of its obligations under this Agreement or the
Custody Agreement or Power of Attorney of such Selling Stockholder,
except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date will
have, valid title to, or a valid "security entitlement" within the
meaning of Section 8-501 of the New York Uniform Commercial Code in
respect of, the Shares to be sold by such Selling Stockholder free and
clear of all security interests, claims, liens, equities or other
encumbrances and the legal right and power, and all authorization and
approval required by law, to enter into this Agreement, the Custody
Agreement and the Power of Attorney and to sell, transfer and deliver
the Shares to be sold by such Selling Stockholder or a security
entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been
duly authorized, executed and delivered by such Selling Stockholder and
are valid and binding agreements of such Selling Stockholder.
(e) Certificates in negotiable form for the Shares to be sold
by such Selling Stockholder have been placed in custody under a Custody
Agreement for delivery under this Agreement with the Custodian; such
Selling Stockholder specifically agrees that the Shares represented by
the certificates so held in custody for such Selling Stockholder are
subject to the interests of the several Underwriters and the Company,
that the arrangements made by such Selling Stockholder shall not be
terminated by any act of such Selling Stockholder or by operation of
law, whether by the death or incapacity of such Selling Stockholder
(or, in the case of a Selling Stockholder who is not an individual, the
dissolution or liquidation of such Selling Stockholder) or the
occurrence of any other event prior to June __, 2003 if such death,
incapacity, dissolution, liquidation or other such event should occur
before the delivery of such Shares hereunder, certificates for such
Shares shall be delivered by the Custodian in accordance with the terms
and conditions of this Agreement as if such death, incapacity,
dissolution, liquidation or other event had not occurred, regardless of
whether the Custodian shall have received notice of such death,
incapacity, dissolution, liquidation or other event.
(f) Delivery of the Shares to be sold by such Selling
Stockholder and payment therefor pursuant to this Agreement will pass
valid title to such Shares, free and clear of any adverse claim within
the meaning of Section 8-102 of the New York Uniform Commercial Code,
to each Underwriter who has purchased such Shares without notice of an
adverse claim.
(g) All information furnished in writing by or on behalf of
such Selling Stockholder for use in the Registration Statement and
Prospectus is, and on the Closing Date will be, true, correct, and
complete, and does not, and on the Closing Date will not, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make such information not misleading.
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(h) Such Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in Section 1
are not true and correct, is familiar with the Registration Statement
and Prospectus and has no knowledge of any material fact, condition or
information not disclosed in the Prospectus that has had, or may have,
a material adverse effect on the Company and its subsidiaries, taken as
a whole. 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 its Shares pursuant to this Agreement.
(i) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in, the stabilization or manipulation of
the price of any security of the Company or facilitate the sale or
resale of the Shares.
3. Agreements to Sell and Purchase. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $______ a share (the "PURCHASE
PRICE") the number of Firm Shares (subject to adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
number of Firm Shares set forth a Schedule I opposite the name of such
Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to 825,000 Additional Shares at
the Purchase Price. You may exercise this right on behalf of the Underwriters in
whole or from time to time in part by giving written notice of each election to
exercise the option not later than 30 days after the date of this Agreement. Any
exercise notice shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such shares are to be purchased. Each
purchase date must be at least one business day after the written notice is
given and may not be earlier than the closing date for the Firm Shares nor later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 5 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. On each
day, Option Closing Date, (as defined below), if any, that Additional Shares are
to be purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
total number of Additional Shares to be purchased on such Option Closing Date
(as defined below) as the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 180 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or
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(ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise; provided, however, that each Selling Stockholder may engage in any of
the transactions permitted in the form of "lock-up" agreement attached hereto as
Exhibit A and executed by each of the Selling Stockholders. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder or (B) the
issuance by the Company of shares of Common Stock upon the exercise of an option
or warrant or the conversion of a security outstanding on the date hereof of
which the Underwriters have been advised in writing and is described in the
Prospectus or (C) the grant of options or the issuance of shares of Common Stock
by the Company to employees, officers, directors advisors or consultants of the
Company pursuant to employee benefit plans described in the Prospectus. In
addition, each Selling Stockholder agrees that, without the prior written
consent of Xxxxxx Xxxxxxx & Co., Incorporated, on behalf of the Underwriters, it
will not, during the period ending 180 days after the date of the Prospectus,
make any demand for, or exercise any right with respect to, the registration of
any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
4. Terms of Public Offering. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
$_____________ a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of $______
a share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of $_____ a share, to any
Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on ____________, 2003, or at such other time on the same or such other
date, not later than _________, 2003, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "CLOSING
DATE."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 3 or at such other time on the same or
on such other date, in any event not later than _______, 2003, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "OPTION CLOSING DATE."
The Firm Shares and Additional Shares shall be registered in such names
and in such denominations as you shall request in writing not later than one
full business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The Firm Shares and Additional Shares shall be
delivered to you on the Closing Date or an Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters, with any transfer
taxes
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payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Sellers to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 5:00 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated
in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed on behalf of the Company
by an executive officer of the Company, to the effect set forth in
Section 6(a)(i) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied in all
material respects with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings
threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Fenwick & West LLP, outside counsel for the Company dated
the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its
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incorporation, has the corporate power and corporate authority
to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) the authorized capital stock of the Company
conforms as to legal matters in all material respects to the
description thereof contained in the Prospectus;
(iii) the shares of Common Stock outstanding prior to
the issuance of the Shares have been duly authorized and are
validly issued and non-assessable, and, to such counsel's
knowledge, fully paid;
(iv) the Shares have been duly authorized and, when
issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be
subject to any preemptive rights contained in the Company's
certificate of incorporation or by-laws, each as amended to
date, or to such counsel's knowledge, any similar rights
contained in any other agreements or instruments binding upon
the Company;
(v) this Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement will not contravene any provision of applicable
law or the certificate of incorporation or by-laws, each as
amended to date, of the Company or, to such counsel's
knowledge, any material agreement or other instrument binding
upon the Company or any of its subsidiaries filed as an
exhibit to the Registration Statement or, to such counsel's
knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or
any Significant Subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of
the various states or bylaws and rules and regulations of the
NASD (as to which such counsel expresses no opinion) in
connection with the offer and sale of the Shares;
(vii) the statements relating to legal matters, legal
documents or legal proceedings included in (A) the Prospectus
under the captions "Risk Factors - Provisions of our
certificate of incorporation and bylaws or Delaware law might
discourage, delay or prevent a change or control of our
company or changes in our management, and therefore, depress
the trading price of our common stock,"
11
"Management - Indemnification of Directors and Officers and
Limitation of Liability," "Shares Eligible for Future Sale,"
"Description of Capital Stock" and "Underwriters" and (B) the
Registration Statement in Items 14 and 15, in each case
insofar as such statements constitute summaries of the legal
matters, legal documents, or legal proceedings referred to
therein, fairly summarize in all material respects such
matters, documents or proceedings;
(viii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described
or filed as required;
(ix) the Company is not, and after giving effect to
the offering and sale of the Shares and the immediate
application of the proceeds thereof as described in the
Prospectus would not be, required to register as an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(x) this Agreement has been duly executed and
delivered by or on behalf of each of the Selling Stockholders;
(xi) the execution and delivery by each Selling
Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement and the
Custody Agreement and Powers of Attorney of such Selling
Stockholder will not contravene any provision of applicable
law, or, to such counsel's knowledge, any agreement or other
instrument binding upon such Selling Stockholder or, to such
counsel's knowledge, 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 the performance by
such Selling Stockholder of its obligations under this
Agreement or the Custody Agreement or Power of Attorney of
such Selling Stockholder, except such as may be required by
the securities or Blue Sky laws of the various states in
connection with offer and sale of the Shares;
(xii) Assuming that the Underwriters purchase the
Shares to be sold by the Selling Stockholders pursuant to this
Agreement for value, in good faith and without notice of any
adverse claims, the delivery of stock certificates
representing the Shares to be sold by the Selling
Shareholders, indorsed to the Underwriters, will transfer to
the Underwriters all rights of the Selling Stockholders in
such Shares, free and clear of any adverse claim (within the
meaning of Section 8-102 of the New York Uniform Commercial
Code);
12
(xiii) the "lock up" agreement substantially in the
form of Exhibit A hereto, the Custody Agreement and the Power
of Attorney of each Selling Stockholder have been duly
executed and delivered by such Selling Stockholder and are
valid and binding agreements of such Selling Stockholder;
(xiv) nothing has come to the attention of such
counsel that causes such counsel to believe that (A) the
Registration Statement or the Prospectus (except for the
financial statements and notes thereto and financial statement
schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief)
do not comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder, (B) the
Registration Statement or the Prospectus included therein
(except for the financial statements and notes thereto and
financial statement schedules and other financial and
statistical data included therein, as to which such counsel
need not express any belief) at the time the Registration
Statement became effective contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or (C) the Prospectus (except for the financial
statements and notes thereto and financial statement schedules
and other financial and statistical data included therein, as
to which such counsel need not express any belief) as of its
date or as of the Closing Date contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(d) The Underwriters shall have received on the Closing Date
opinions of Komaromi es Eros Ugyvedi Iroda, Squire, Xxxxxxx & Xxxxxxx
L.L.P. (Brussels), Xxxxxx Xxxxxxx & Xxxxxxx (London), SSD Law Offices
and Xxx & Xxxxx, each outside counsel for the Company's Significant
Subsidiaries, dated the Closing Date, in the forms attached hereto as
Exhibit B, Exhibit C, Exhibit D, Exhibit E and Exhibit F, respectively.
(e) The Underwriters shall have received on the Closing Date
an opinion of Xxxx Xxxx Xxxx & Freidenrich LLP, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 6(c)(iv), 6(c)(v), 6(c)(vii) (but with respect to
6(c)(vii), only as to the statements in the Prospectus under
"Underwriters") and 6(c)(xiv) above.
With respect to Section 6(c)(xiv) above, Fenwick & West LLP and Xxxx
Xxxx Xxxx & Freidenrich LLP may state that their beliefs are based upon
their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check
or verification, except as specified.
The opinions of Fenwick & West LLP, Komaromi es Eros Ugyvedi Iroda,
Xxxxxx Xxxxxxx & Xxxxxxx LLP (Brussels), Xxxxxx Xxxxxxx & Xxxxxxx
(London) SSD Law Offices and Xxx & Xxxxx described in Sections 6(c) and
6(d) above and the opinion of Xxxxxx Xxxxxxxxx described in Section
6(f) below shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
13
(f) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx Xxxxxxxxx, Vice President, General Counsel and
Secretary of the Company, dated the Closing Date, to the effect that:
(i) the statements relating to legal matters, legal
documents or legal proceedings included in the Prospectus
under the captions "Risk Factors - From time to time, we might
be subject to claims of infringement of other parties'
proprietary rights, or to claims that our intellectual
property rights are invalid or unenforceable, which could
result in significant expense and loss of intellectual
property rights and "Business - Intellectual Property," in
each case insofar as such statements constitute summaries of
the legal matters, legal documents, or legal proceedings
referred to therein, fairly summarize in all material respects
such matters, documents or proceedings.
(g) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from PricewaterhouseCoopers, LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(h) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and certain stockholders, officers and
directors of the Company covering at least [98%] of the outstanding
shares of Common Stock or securities convertible into Common Stock of
the Company relating to sales and certain other dispositions of shares
of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the
Closing Date.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Shares to be sold on such Option Closing Date and other matters
related to the issuance of such Additional Shares.
7. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, 5 signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of this Agreement and during the period
mentioned in Section 7(c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
14
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the Underwriters
and to any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending June 30, 2004 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) To place stop transfer orders on any Directed Shares that
have been sold to Participants subject to the three month restriction
on sale, transfer, assignment, pledge or hypothecation imposed by NASD
Regulation, Inc. under its Interpretative Material 2110-1 on
free-riding and withholding to the extent necessary to ensure
compliance with the three month restrictions.
(g) To comply with all applicable securities and other
applicable laws, rules and regulations in each jurisdiction in which
the Directed Shares are offered in connection with the Directed Share
Program.
(h) To not release any holder of the Company's securities from
its contractual obligations to the Company under any stock option,
incentive or stock purchase plan, or any other agreement or plan
including, but not limited to, the Sixth Amended and Restated Rights
Agreement dated July 13, 2001, not to offer, pledge, sell, contract to
sell, or otherwise transfer or dispose of, directly or indirectly, any
of the Company's securities
15
during the period ending 180 days after the date of the Prospectus,
without the prior written consent of Xxxxxx Xxxxxxx.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Sellers agree to
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel, the Company's accountants and counsel for the
Selling Stockholders in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 7(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to the
Common Stock and all costs and expenses incident to listing the Shares on the
Nasdaq National Market, (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, (ix) the
document production charges and expenses associated with printing this
Agreement, and (x) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in this
Section 8, Section 9 entitled "Indemnity and Contribution," Section 10 entitled
"Directed Share Program Indemnification" and the last paragraph of Section 12
below, the Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on resale of
any of the Shares by them and any advertising expenses connected with any offers
they may make.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as
16
amended (the "EXCHANGE ACT"), and each affiliate of any Underwriter
within the meaning of Rule 405 under the Securities Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use
therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof.
(b) Each Selling Stockholder agrees, severally and not
jointly, to indemnify and hold harmless the Company, the other Selling
Stockholders, the directors of the Company, the officers of the Company
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each Underwriter,
each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act, and each affiliate of any Underwriter within the meaning of Rule
405 under the Securities Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only with reference to
information relating to such Selling Stockholder furnished in writing
by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto; and provided, further, that
liability of such Selling Stockholder under this Section 9(b) shall be
limited to an amount equal to the net proceeds to such Selling
Stockholder from the sale of the Shares sold by such Selling
Stockholder under this Agreement.
17
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholders, the
directors of the Company, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company and Selling
Stockholder to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments
or supplements thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Sections 9(a), 9(b) or 9(c),
such person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Party unless (i) the Indemnifying
Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in respect of the legal expenses of any
Indemnified Party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act or who are affiliates of any
Underwriter within the meaning of Rule 405 under the Securities Act,
(ii) the fees and expenses of more than one separate firm (in addition
to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls
the Company within the meaning of either such Section and (iii) the
fees and expenses of more than one separate firm (in addition to any
local counsel) for all Selling Stockholders and all persons, if any,
who control any Selling Stockholder within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the
Underwriters and such control persons and affiliates of any
Underwriters, such firm shall be designated in writing by Xxxxxx
Xxxxxxx & Co. Incorporated. In the case of any such separate firm for
the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In
the case of any such separate firm for the Selling Stockholders and
such control persons of any Selling Stockholders, such firm shall be
designated in writing by the persons named as attorneys-in-fact for the
Selling Stockholders under the Powers of Attorney. The Indemnifying
Party shall not be liable for any settlement of any
18
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Party shall have requested an Indemnifying Party to reimburse the
Indemnified Party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the Indemnifying
Party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such Indemnifying
Party of the aforesaid request and (ii) such Indemnifying Party shall
not have reimbursed the Indemnified Party in accordance with such
request prior to the date of such settlement. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party,
effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Party is or could have been a party
and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject
matter of such proceeding.
(e) To the extent the indemnification provided for in Section
9(a), 9(b) or 9(c) is unavailable to an Indemnified Party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Party under such paragraph,
in lieu of indemnifying such Indemnified Party thereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received
by Indemnifying Party or Parties on the one hand and the Indemnified
Party or Parties on the other hand from the offering of the Shares or
(ii) if the allocation provided by clause 9(e)(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 9(e)(i)
above but also the relative fault of the Indemnifying Party or Parties
on the one hand and of the Indemnified Party or Parties on the other
hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Sellers on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of
the Shares (before deducting expenses) received by each Seller and the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Seller on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Seller or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute
pursuant to this Section 9 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
19
(f) The Sellers and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 9(e). The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
9 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any Indemnified Party at law or in
equity.
(g) The indemnity and contribution provisions contained in
this Section 9 and the representations, warranties and other statements
of the Company and the Selling Stockholders contained in this Agreement
shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter, any person controlling any Underwriter or
any affiliate of any Underwriter, any Selling Stockholder or any person
controlling a Selling Stockholder, or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of
and payment for any of the Shares.
10. Directed Share Program Indemnification.
(a) The Company agrees to indemnify and hold harmless Xxxxxx
Xxxxxxx and its affiliates and each person, if any, who controls Xxxxxx
Xxxxxxx or its affiliates within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act ("XXXXXX XXXXXXX
ENTITIES"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any
such action or claim) (i) caused by any untrue statement or alleged
untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants
in connection with the Directed Share Program, or caused by any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading; (ii) caused by the failure of any Participant to pay for
and accept delivery of Directed Shares that the Participant has agreed
to purchase; or (iii) related to, arising out of, or in connection with
the Directed Share Program other than losses, claims, damages or
liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of
Xxxxxx Xxxxxxx Entities.
20
(b) In case any proceeding (including any governmental
investigation) shall be instituted involving any Xxxxxx Xxxxxxx Entity
in respect of which indemnity may be sought pursuant to Section 8(a),
the Xxxxxx Xxxxxxx Entity seeking indemnity shall promptly notify the
Company in writing and the Company, upon request of the Xxxxxx Xxxxxxx
Entity, shall retain counsel reasonably satisfactory to the Xxxxxx
Xxxxxxx Entity to represent the Xxxxxx Xxxxxxx Entity and any others
the Company may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Xxxxxx Xxxxxxx Entity shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Xxxxxx Xxxxxxx Entity unless (i) the Company shall
have agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include both
the Company and the Xxxxxx Xxxxxxx Entity and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The Company shall not, in
respect of the legal expenses of the Xxxxxx Xxxxxxx Entities in
connection with any proceeding or related proceedings the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Xxxxxx Xxxxxxx
Entities. Any such firm for the Xxxxxx Xxxxxxx Entities shall be
designated in writing by Xxxxxx Xxxxxxx. The Company shall not be
liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Company agrees to indemnify the
Xxxxxx Xxxxxxx Entities from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time a Xxxxxx Xxxxxxx Entity shall have requested
the Company to reimburse it for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
Company agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by the Company of the
aforesaid request and (ii) the Company shall not have reimbursed the
Xxxxxx Xxxxxxx Entity in accordance with such request prior to the date
of such settlement. The Company shall not, without the prior written
consent of Xxxxxx Xxxxxxx, effect any settlement of any pending or
threatened proceeding in respect of which any Xxxxxx Xxxxxxx Entity is
or could have been a party and indemnity could have been sought
hereunder by such Xxxxxx Xxxxxxx Entity, unless such settlement
includes an unconditional release of the Xxxxxx Xxxxxxx Entities from
all liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section
10(a) is unavailable to a Xxxxxx Xxxxxxx Entity or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then the Company, in lieu of indemnifying the Xxxxxx Xxxxxxx
Entity thereunder, shall contribute to the amount paid or payable by
the Xxxxxx Xxxxxxx Entity as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Xxxxxx Xxxxxxx Entities on the other hand from the offering of the
Directed Shares or (ii) if the allocation provided by clause 10(c)(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 10(c)(i) above but also the relative fault of the Company on the
one hand and of the Xxxxxx Xxxxxxx Entities on the other hand in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well
21
as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and of the Xxxxxx Xxxxxxx
Entities on the other hand in connection with the offering of the
Directed Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Directed
Shares (before deducting expenses) and the total underwriting discounts
and commissions received by the Xxxxxx Xxxxxxx Entities for the
Directed Shares, bear to the aggregate Public Offering Price of the
Shares. If the loss, claim, damage or liability is caused by an untrue
or alleged untrue statement of a material fact, the relative fault of
the Company on the one hand and the Xxxxxx Xxxxxxx Entities on the
other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement or the omission or
alleged omission relates to information supplied by the Company or by
the Xxxxxx Xxxxxxx Entities and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(d) The Company and the Xxxxxx Xxxxxxx Entities agree that it
would not be just or equitable if contribution pursuant to this Section
10 were determined by pro rata allocation (even if the Xxxxxx Xxxxxxx
Entities were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in Section 10(c). The amount paid or payable
by the Xxxxxx Xxxxxxx Entities as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the
Xxxxxx Xxxxxxx Entities in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 10, no Xxxxxx Xxxxxxx Entity shall be required to contribute
any amount in excess of the amount by which the total price at which
the Directed Shares distributed to the public were offered to the
public exceeds the amount of any damages that such Xxxxxx Xxxxxxx
Entity has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The remedies
provided for in this Section 10 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any Xxxxxx
Xxxxxxx Entity at law or in equity.
(e) The indemnity and contribution provisions contained in
this Section 10 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Xxxxxx Xxxxxxx Entity or the
Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Directed
Shares.
11. Termination. The Underwriters may terminate this Agreement by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by
22
Federal or New York State authorities or (v) there shall have occurred any
outbreak or escalation of hostilities, or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and which,
singly or together with any other event specified in this clause (v), makes it,
in your judgment, impracticable or inadvisable to proceed with the offer, sale
or delivery of the Shares on the terms and in the manner contemplated in the
Prospectus.
12. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 12 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
the Selling Stockholders for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Stockholders. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. If, on
an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option
Closing Date or (ii) purchase not less than the number of Additional Shares that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably
23
incurred by such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
13. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
24
15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
FormFactor, Inc.
By: _______________________________
Name:
Title:
The Selling Stockholders named in Schedule I hereto,
acting severally
By: _____________________________
Attorney-in-Fact
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Banc of America Securities LLC
Xxxxxx Xxxxxx Partners LLC
Acting severally on behalf of themselves and the several Underwriters named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: ________________________________
Name:
Title:
25
SCHEDULE I
NUMBER OF FIRM SHARES TO BE
UNDERWRITER PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated...........
Xxxxxx Brothers Inc.........................
Banc of America Securities LLC..............
Xxxxxx Xxxxxx Partners LLC .................
Total:.............................
SCHEDULE II
NUMBER OF FIRM SHARES
SELLING STOCKHOLDER TO BE SOLD
------------------- ----------
Xxxxxxx Xxxxxxxxx 1,053
Xxxx Xxxxxxxxxxx 9,623
Xxxxxx Xxxxxx 1,318
Xxxxxxxx X. Xxxxxxxx 22,804
Xxxx Xxxxx 1,748
Xxx X. Xxxxxx 3,252
Xxxxx Xxxxxx 797
Xxxx Xxxxxxxx 104,228
Sung Xxx Xxx 1,048
Xxxxxxx X. Xxx 7,895
Xxxxxxxx Xxxx 1,010
Xxxx Xxxxxx 12,839
Xxxxxx Xxxxxxx 7,712
Xxxxxx Xxxxxxxxx 73,251
Xxxx Xxxxxxxxx 82,852
Xxxxxxx Xxxxxx 11,106
Xxxx Xxxxxxxx 31,871
Xxxxxxxx Xxxxxx 2,106
Xxxx Xxxx 18,182
---------
TOTAL: 394,695
=========
EXHIBIT A
[FORM OF LOCK-UP LETTER]
_____________, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
Banc of America Securities LLC
Xxxxxx Xxxxxx Partners LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX"), Xxxxxx Brothers Inc., Banc of America Securities LLC and
Xxxxxx Xxxxxx Partners LLC (all collectively, the "Underwriters") propose to
enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with
FormFactor, Inc., a Delaware corporation (the "COMPANY"), providing for the
public offering (the "PUBLIC OFFERING") by the Underwriters of shares (the
"SHARES") of the Common Stock, par value $0.001 per share, of the Company (the
"COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, it will not, during the period (the
"LOCK-UP PERIOD") commencing on the date hereof and ending 180 days after the
date of the final prospectus relating to the Public Offering (the "PROSPECTUS"):
(1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly
("TRANSFER"), any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common
Stock ("SECURITIES"); or
(2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences
of ownership of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or
otherwise.
The restrictions in the foregoing sentence shall not apply to (a) the
sale of any Shares to the Underwriters pursuant to the Underwriting Agreement;
(b) transactions relating to shares of Common Stock or Securities acquired in
the Public Offering or thereafter acquired in open market transactions; (c) bona
fide gifts or other Transfers for no consideration of shares of Common Stock or
Securities; (d) distributions of shares of Common Stock or Securities to
partners, members or stockholders of the undersigned; (e) if the undersigned is
a corporation,
Transfers of shares of Common Stock or Securities to an affiliate or affiliates
of such corporation; or (f) acquisitions from the Company of any shares of
Common Stock or Securities. In the case of any gift, Transfer, distribution or
acquisition pursuant to clause (c), (d), (e) or (f) in the foregoing sentence,
(i) each donee, distributee, transferee or recipient shall, prior to the
effectiveness of the Transfer, execute and deliver to Xxxxxx Xxxxxxx an executed
duplicate form of this Lock-Up Agreement and (ii) no filing by any party (donor,
donee, transferor, transferee, distributor, distributee or recipient) under
Section 16(a) of the Securities Exchange Act of 1934, as amended, shall be
required or shall be made voluntarily in connection with such Transfer or
distribution (other than a filing on a Form 5 made after the expiration of the
Lock-Up Period).
In addition, the undersigned agrees that, without the prior written
consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the
Lock-Up Period, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company's transfer
agent and registrar against the transfer of the undersigned's shares of Common
Stock except in compliance with the foregoing restrictions. In the event the
Public Offering has not been consummated on or before October 31, 2003, this
Lock-Up Agreement shall lapse and become null and void.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
By:
--------------------------
------------------------------
(Name)
------------------------------
(Address)
EXHIBIT B
1. The Company is a limited liability company (in Hungarian: "Korlatolt
Felelossegu Tarsasag") registered, duly organized and validly existing as a
limited liability company under the laws of the Republic of Hungary, has not
had its status suspended or forfeited, has the corporate power and authority to
own its properties and to carry on its business as described in the Managing
Directors' Certificate and is duly qualified to transact business in Hungary.
2. The outstanding capital of the Company is represented by one quota
(the capital of a Hungarian limited liability company, Korlatolt Felelossegu
Tarsasag, is represented by quotas instead of shares of stock) having a nominal
value of USD 15,000. The Company has complied with all applicable legal and
procedural requirements in creating its quota, including any requirement to
obtain necessary approvals from the Company's managing directors, quotaholders
and appropriate government authorities. Such approvals were obtained pursuant to
and in accordance with the legal requirements thereof. The quota of the Company
is fully paid, nonassessable and fully owned by the Parent and we have no
knowledge of any liens, encumbrances, equities or claims thereon.
EXHIBIT C
1. The Company is a limited liability corporation ("Gesellschaft mit
beschrankter Haftung -- "GmbH," as per its German initials) duly organized and
validly existing under the laws of Germany, with requisite corporate power to
own and operate its properties and assets and it is as such qualified to carry
on the business as stated in the Prospectus.
2. The Company is duly qualified to transact business in each jurisdiction
in which it conducts business or owns or leases property outside of Germany.
3. The Company Register does not included any information according to
which the Company was suspended or in liquidation.
4. The stock of the Company consists of one private ownership share of a
nominal value of 25.000, Euro. The Company's Basic Capital of 25,000, Euro has
been fully paid up. All private ownership shares are held by FormFactor Hungary
Ltd. Such private ownership shares are not subject to any liens or encumbrances.
EXHIBIT D
1. FormFactor Europe Limited (the "Company") is a company limited by
shares duly incorporated on 27 January 1999 and is validly existing and
registered under number 3705871 under the laws of England and Wales;
2. The Company is in good standing in accordance with the terms of the
Good Standing Certificate;
3. The Company has, as its principal object in the Memorandum of
Association, the power and authority to own its property, to conduct the
business described in the Prospectus and to act as a general commercial company
together with various ancillary objects;
4. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or to be in good standing would not
have a material adverse effect on the Company, taken as a whole; and
5. The Company has share capital of 10,000 ordinary shares of nominal
value of pound sterling 1.00 each, of which 100 have been validly issued, are
non-assessable and are fully paid up are registered in the name of FORMFACTOR,
INC., free and clear of all registered liens or registered encumbrances and, to
our knowledge, free and clear of all liens, encumbrances, equities or claims.
EXHIBIT E
1. The Company is a corporation validly incorporated and
existing under the laws of Japan, has not had its corporate status suspended or
forfeited and has requisite corporate power and authority to own and operate
its properties and assets and to carry on the business in which it is now
engaged as described in the Prospectus.
1.5 There was a defect in the original incorporation of the
Company which has since been duly cured and there are no adverse legal
consequences to the Company resulting from the defect in the incorporation of
the Company.
2. The Company is duly qualified to transact its business in
Japan. There are no restrictions under Japanese law as to qualification of the
Company to transact business in any foreign jurisdictions. It is beyond the
jurisdiction of Japanese law as to if the Company is qualified to do business
in a foreign country.
3. The outstanding capital stock of the Company consists of 800
shares of common stock, and all the outstanding shares have been duly
authorized and validly issued, are fully paid, nonassessable and held of record
by the Parent. There are no encumberances on these shares as effective against
the Company.
EXHIBIT F
1. That the Company has been duly incorporated, is validly existing as a
corporation and in good standing under the laws of Korea, has the corporate
power and authority to own its property and conduct its business as described in
the Prospectus, is duly qualified to transact business in Korea, and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or to be in good standing would not have a material adverse effect on
the Company, taken as a whole; and
2. that all of the issued units of contribution of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable, and
are owned by FormFactor Germany GmbH and FormFactor Hungary Licensing Limited
Liability Company, free and clear of all liens, pledges, encumbrances, other
security interests or claims.
