EXHIBIT 1.1
5,200,000 SHARES
OPTIUM CORPORATION
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
UNDERWRITING AGREEMENT
[ ], 2006
[ ], 2006
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse Securities (USA) LLC,
As Representatives of the several Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Optium Corporation, a placeStateDelaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "UNDERWRITERS"), for whom Xxxxxx Xxxxxxx & Co.
Incorporated and Credit Suisse Securities (USA) LLC are acting as
representatives (the "REPRESENTATIVES"), an aggregate of 5,200,000 shares of
the Common Stock, par value $0.0001 per share, of the Company (the "FIRM
SHARES").
The Company also proposes to issue and sell to the several
Underwriters not more than an additional 780,000 shares of its Common Stock,
par value $0.0001 per share (the "ADDITIONAL SHARES"), if and to the extent
that you, as Representatives, shall have determined to exercise, on behalf of
the Underwriters, the right to purchase such shares of common stock granted
to the Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES." The shares
of Common Stock, par value $0.0001 per share, of the Company to be
outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the "COMMON STOCK."
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 (or in the form first made
available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as
the "PROSPECTUS." 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.
For purposes of this Agreement, (i) "FREE WRITING PROSPECTUS" has
the meaning set forth in Rule 405 under the Securities Act, (ii) "TIME OF
SALE PROSPECTUS" means the preliminary prospectus together with the free
writing prospectuses, if any, each identified in Schedule II hereto, and
(iii) "BROADLY AVAILABLE ROAD SHOW" means a "BONA FIDE ELECTRONIC ROAD SHOW"
as defined in Rule 433(h)(5) under the Securities Act that has been made
available without restriction to any person. As used herein, the terms
"Registration Statement," "preliminary prospectus," "Time of Sale Prospectus"
and Prospectus shall include the documents, if any, incorporated by reference
therein.
Credit Suisse Securities (USA) LLC ("CREDIT SUISSE") 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
Credit Suisse and its affiliates pursuant to the Directed Share Program are
referred to hereinafter as the "DIRECTED SHARES." Any Directed Shares not
orally confirmed for purchase by any Participant 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 OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or, to the Company's
knowledge, 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; (iii) the Time of Sale Prospectus does not, and at the
time of each sale of the Shares in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at the Closing
Date (as defined in Section 4 hereof), the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; (iv) each broadly available road
show, if any, when considered together with the Time
2
of Sale Prospectus, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
and (v) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph do not
apply to statements or omissions in the Registration Statement, the Time of
Sale Prospectus, any broadly available road show, 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 is not an "ineligible issuer" in connection with
the offering pursuant to Rules 164, 405 and 433 under the Securities Act.
Any free writing prospectus that the Company is required to file pursuant to
Rule 433(d) under the Securities Act has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each free
writing prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was prepared by or
behalf of or used or referred to by the Company complies or will comply in
all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Except for
the free writing prospectuses, if any, identified in Schedule II hereto, and
electronic road shows, if any, furnished to you before first use, the Company
has not prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Time of Sale Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification (and all such jurisdictions are set
forth on Schedule III hereto), 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.
(e) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing (or, if in a foreign
jurisdiction, enjoys the equivalent status under the laws of the jurisdiction
of organization outside of the United States) under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification
3
(and all such jurisdictions are set forth on Schedule III hereto), 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
all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered
by the Company.
(g) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in each of the Time of
Sale Prospectus and the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of
the Shares to be sold by the Company have been duly authorized and are
validly issued, fully paid and non-assessable.
(i) The Shares to be sold by the Company have been duly authorized
and, when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not
contravene 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 (the only such agreements or
other instruments being the agreements and instruments listed as an exhibit
to the opinion of Xxxxxxx Procter LLP pursuant to Section 5(c) hereof), 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 and regulations of the various states in
connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that set forth in
the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or, to
the Company's knowledge, 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
4
subsidiaries is subject: (i) other than proceedings accurately described in
all material respects in the Time of Sale Prospectus and proceedings that
would not be reasonably expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or on the power or ability of
the Company to perform its obligations under this Agreement or to consummate
the transactions contemplated by the Time of Sale Prospectus; or (ii) that
are required to be described in the Registration Statement or the Prospectus
and are not so described; and there are no statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(o) The Company and its subsidiaries: (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"); (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in the
aggregate, be reasonably expected to 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) Except as described in the Time of Sale Prospectus, there are
no contracts, agreements or understandings between the Company and any person
5
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.
(r) Subsequent to the respective dates as of which information is
given in each of the Registration Statement, the Time of Sale Prospectus 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; (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 each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(s) The Company and its subsidiaries do not own any material real
property. The Company and its subsidiaries have good and marketable title to
all personal property owned by them which is material to the business of the
Company and its subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Time of Sale
Prospectus or such as do not materially affect the value of such property and
do 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 Time of Sale Prospectus.
(t) The Company and its subsidiaries own, possess, or have the
right to use or can acquire on reasonable terms ownership of or rights to
use, 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 which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect 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 Time of Sale
Prospectus, or, to the knowledge of the Company, is imminent; and the Company
is not aware of any existing, threatened or imminent labor disturbance by the
employees of any
6
of its principal suppliers, manufacturers or contractors that would
reasonably be expected to have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(v) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any 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
Time of Sale 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
material adverse effect on the Company and its subsidiaries, taken as a
whole, except as described in the Time of Sale 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. Except as described in the
Time of Sale Prospectus, since the end of the Company's most recent audited
fiscal year, there has been: (i) no material weakness in the Company's
internal control over financial reporting (whether or not remediated); and
(ii) no change in the Company's internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect,
the Company's internal control over financial reporting.
(y) Except as described in the Time of Sale Prospectus, the Company
has not sold, issued or distributed any shares of Common Stock during the
six-month period preceding the date hereof, including any sales pursuant to
Rule 144A under, or Regulation D or S of, the Securities Act, other than
shares issued pursuant to employee benefit plans, qualified stock option
plans or other employee compensation plans or pursuant to outstanding
options, rights or warrants.
7
(z) 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.
(aa) 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, except such
as may be required by the securities or Blue Sky laws and regulations of the
various states in connection with the offer and sale of the Directed Shares.
(bb) The Company has not offered, or caused Credit Suisse to offer,
Shares to any person pursuant to the Directed Share Program with the specific
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. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company at $[ ] a share (the "PURCHASE PRICE") the number of Firm
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) set forth in Schedule I hereto opposite the name of such
Underwriter.
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 780,000
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 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 4 hereof solely for the
purpose of covering over-allotments made in connection with the offering of
the Firm Shares. On each day, if any, that Additional Shares are to be
purchased (an "OPTION CLOSING DATE"), each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears
the same proportion to the total number of Additional Shares to be purchased
on such Option Closing
8
Date 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.
The Company hereby agrees that, without the prior written consent of
the Representatives on behalf of the Underwriters, it will not, during the
period ending 180 days after the date of 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, any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock; (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise; or (3) in the case of
the Company, file any registration statement with the Commission relating to
the offering of any shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock (other than on Form S-8 or a
successor form thereto).
The restrictions contained in the preceding paragraph shall not
apply to: (a) the Shares to be sold hereunder; (b) the issuance by the
Company of shares of Common Stock upon the exercise of an option or warrant
or the conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing; (c) the grant of options to
purchase Common Stock or the issuance of shares of Common Stock by the
Company to employees, officers, directors, advisors or consultants of the
Company or any of its subsidiaries pursuant to equity plans disclosed in the
Time of Sale Prospectus, PROVIDED that each recipient of any such grant or
issuance be bound by a lock-up agreement in the form set forth in Exhibit A
hereto; (d) the issuance by the Company of up to 2,450,000 shares of Common
Stock, in connection with any acquisition, collaboration or other similar
strategic transaction involving the Company or any of its subsidiaries,
PROVIDED that the recipients thereof execute a lock-up agreement
substantially in the form of Exhibit A hereto. Notwithstanding the
foregoing, if: (1) during the last 17 days of the 180-day restricted period
the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the 180-day
restricted period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the 180-day
period, the restrictions imposed by this agreement shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event.
The Company shall promptly notify the Representatives of any earnings
release, news or event that may give rise to an extension of the initial
180-day restricted period.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that
the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become
9
effective as in your judgment is advisable. The Company is 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.
4. PAYMENT AND DELIVERY. Payment for the Firm Shares shall be made
to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Shares for the respective accounts of the
several Underwriters at 10:00 a.m., New York City time, on [ ], 2006, or at
such other time on the same or such other date, not later than [ ], 2006,
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 2 hereof or at such other time on
the same or on such other date, in any event not later than [ ], 2006, as
shall be designated in writing by you.
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 payable in connection with the transfer of the Shares
to the Underwriters duly paid, against payment of the Purchase Price therefor.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Company 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 [ ](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
10
any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any
"nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) under the Securities
Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a)(i) hereof and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company
has complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied hereunder on or before the Closing
Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx Procter LLP, outside counsel for the Company, dated the
Closing Date, in the form attached as Exhibit B hereto.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections [ ]
, [ ], [ ] (but only as to the statements in each of the
Time of Sale Prospectus and the Prospectus under "Description of Capital
Stock" and "Underwriters") and [ ] of Exhibit B hereto.
With respect to Section [ ] of Exhibit B hereto, Xxxxxxx
Procter LLP and Xxxxx Xxxx & Xxxxxxxx may state that their opinions and
beliefs are based upon their participation in the preparation of the
Registration Statement, the Time of Sale Prospectus and the 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.
(e) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from each of Ernst & Young LLP and Deloitte & Touche LLP,
independent public accountants,
11
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus; PROVIDED that the
letter delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(f) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain shareholders, officers and
directors of the Company relating to sales and certain other dispositions of
shares of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to
the good standing of the Company, the due authorization and issuance of the
Additional Shares to be sold on such Option Closing Date and other matters
related to the issuance of such Additional Shares.
6. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, three 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 Sections 6(e)
or 6(f) hereof, as many copies of the Time of Sale Prospectus, the Prospectus
and any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration Statement,
the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of
each such proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under the
Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing
prospectus to be prepared by or on behalf of, used by, or referred to by the
Company and not to use or refer to any proposed free writing prospectus to
which you reasonably object in writing.
(d) Not to take any action that would result in an Underwriter or
the Company being required to file with the Commission pursuant to Rule
433(d)
12
under the Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that the Underwriter otherwise would not have been
required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers
to buy the Shares at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the
circumstances, not misleading, or if any event shall occur or condition exist
as a result of which the Time of Sale Prospectus conflicts with the
information contained in the Registration Statement then on file, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the
statements in the Time of Sale Prospectus as so amended or supplemented will
not, in the light of the circumstances when delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus, as amended
or supplemented, will no longer conflict with the Registration Statement, or
so that the Time of Sale Prospectus, as amended or supplemented, will comply
with applicable law.
(f) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when
the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of
the Securities Act) is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(g) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; PROVIDED that in no event shall the Company or any of its
subsidiaries be obligated to qualify to do business as a foreign corporation
in any jurisdiction where it is not now so qualified or to file any general
consent to service of process.
13
(h) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering a period of
at least twelve months beginning with and including the first fiscal quarter
of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(i) To comply with all applicable securities and other laws, rules
and regulations in each jurisdiction in which the Directed Shares are offered
in connection with the Directed Share Program.
7. EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees
to pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of
the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on
behalf of, used by, or referred to by the Company and amendments and
supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified; (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon; (iii)
the cost of printing or producing any Blue Sky or Legal Investment memorandum
in connection with the offer and sale of the Shares under state securities
laws and all expenses in connection with the qualification of the Shares for
offer and sale under state securities laws as provided in Section 6(g)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky or Legal Investment memorandum; (iv) all 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
document production charges and expenses associated with printing this
Agreement; all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp duties,
similar taxes or duties or other taxes, if any, incurred by the Underwriters
in connection with the Directed Share Program; 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. In
addition, the Company
14
agrees to pay or cause to be paid one-half of 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, the following expenses: (i) expenses associated with the
preparation or dissemination of any electronic road show, (ii) 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, (iii) 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. It is understood, however, that except as provided in this
Section, Section 9 entitled "Indemnity and Contribution," Section 10 entitled
"Directed Share Program Indemnification" and the last paragraph of Section 12
hereof, the Underwriters will pay (i) 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, and (ii) one-half of all travel and
lodging expenses of the Representatives of the Underwriters in connection
with the road show, which expenses include the cost of any aircraft chartered
in connection with the road show. It being understood, however, that the
fees and disbursements of counsel for the Underwriters that the Company may
be required to pay pursuant to clauses (iii), (iv) and (ix) of this Section 7
shall not exceed $35,000 in the aggregate.
8. COVENANTS OF THE UNDERWRITERS. Each Underwriter severally
covenants with the Company not to take any action that would result in the
Company being required to file with the Commission under Rule 433(d) of the
Securities Act a free writing prospectus prepared by or on behalf of such
Underwriter that otherwise would not be required to be filed by the Company
thereunder, but for the action of the Underwriter.
9. INDEMNITY AND CONTRIBUTION. The Company agrees to indemnify
and hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Underwriter within
the meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of
Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h)
under the Securities Act, any Company information that the Company has filed,
or is required to file, pursuant to Rule 433(d) of the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter
15
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, 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 from and against any and
all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending
or investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of
Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h)
under the Securities Act, any Company information that the Company has filed,
or is required to file, pursuant to Rule 433(d) of the Securities Act, 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 Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus or the Prospectus or any
amendment or supplement thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 9(a), 9(b), 9(c) or 9(c) hereof,
such person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonably documented 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
16
Section 20 of the Exchange Act or who are affiliates of any Underwriter
within the meaning of Rule 405 under the Securities Act; and (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 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 the
Representatives. 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. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. 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 45
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.
(d) To the extent the indemnification provided for in Section 9(a),
9(b), 9(c) or 9(c) hereof 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: in such proportion as is appropriate
to reflect the relative benefits received by the 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(d)(i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause 9(d)(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 Company on
the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to
17
be in the same respective proportions as the net proceeds from the offering
of the Shares (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, 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
Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 9 are several in proportion to the respective number of Shares they
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 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(d) hereof.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 9(d) hereof 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.
(f) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force
and effect regardless of: (i) any termination of this Agreement; (ii) any
investigation made by or on behalf of any Underwriter 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. The Company agrees to
indemnify and hold harmless Credit Suisse, each person, if any, who controls
Credit Suisse within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act and each affiliate of Credit Suisse within
the
18
meaning of Rule 405 of the Securities Act ("CREDIT SUISSE 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 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 Credit Suisse Entities.
(b) In case any proceeding (including any governmental
investigation) shall be instituted involving any Credit Suisse Entity in
respect of which indemnity may be sought pursuant to Section 10(a) hereof,
the Credit Suisse Entity seeing indemnity, shall promptly notify the Company
in writing and the Company, upon request of the Credit Suisse Entity, shall
retain counsel reasonably satisfactory to the Credit Suisse Entity to
represent the Credit Suisse 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 Credit Suisse 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 Credit Suisse 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 Credit Suisse 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 Credit Suisse Entities in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Credit Suisse Entities. Any such separate firm
for the Credit Suisse Entities shall be designated in writing by Credit
Suisse. 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 Credit Suisse Entities from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time a Credit Suisse 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 Credit Suisse Entity in accordance with such request prior to
the date of such settlement. The Company shall not, without the prior
written consent of Credit
19
Suisse, effect any settlement of any pending or threatened proceeding in
respect of which any Credit Suisse Entity is or could have been a party and
indemnity could have been sought hereunder by such Credit Suisse Entity,
unless such settlement includes an unconditional release of the Credit Suisse
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) hereof is unavailable to a Credit Suisse Entity or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then the Company in lieu of indemnifying the Credit Suisse Entity thereunder,
shall contribute to the amount paid or payable by the Credit Suisse 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 Credit Suisse 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 Credit Suisse Entities on the other hand in connection with
any statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Credit
Suisse 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 Credit Suisse Entities for the Directed Shares, bear to the aggregate
Public Offering Price of the Directed Shares. If the loss, claim, damage or
liability is caused by an untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact, the
relative fault of the Company on the one hand and the Credit Suisse 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 Credit
Suisse 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 Credit Suisse 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 Credit Suisse 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) hereof. The amount paid or payable by the Credit Suisse
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 Credit Suisse Entities in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 10, no Credit Suisse Entity shall be required to contribute any
amount in excess of the amount by which the total price at which
20
the Directed Shares distributed to the public were offered to the public
exceeds the amount of any damages that such Credit Suisse Entity has
otherwise been required to pay. 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 indemnified party 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 Credit Suisse 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 Federal or New York State authorities; or there shall have
occurred any outbreak or escalation of hostilities, any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to
proceed with the offer, sale or delivery of the Shares on the terms and in
the manner contemplated in the Time of Sale Prospectus or the Prospectus.
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
21
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 on such date, and arrangements satisfactory to
you and the Company for the purchase of such Firm Shares are not made within
36 hours after such default, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter and the Company. In any such
case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement, in the Time of Sale
Prospectus, in the Prospectus or in any other documents or arrangements may
be effected. If, on an Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Shares and the aggregate number
of Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased on
such Option Closing Date, the non-defaulting Underwriters shall have the
option to: (i) terminate their obligation hereunder to purchase the
Additional Shares to be sold on such Option Closing Date; or (ii) purchase
not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if
for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
13. ENTIRE AGREEMENT. (a) This Agreement, together with any
contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the
Shares, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of any preliminary prospectus,
the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and
the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering
of the Shares: (i) the Underwriters have acted at arms length, are not
agents of, and owe no fiduciary duties to, the Company or any other person;
(ii) the Underwriters owe the Company only those duties and obligations set
forth in this Agreement and prior written agreements (to the extent not
superseded by this
22
Agreement), if any; and (iii) the Underwriters may have interests that differ
from those of the Company. The Company waives to the full extent permitted
by applicable law any claims it may have against the Underwriters arising
from an alleged breach of fiduciary duty in connection with the offering of
the Shares.
14. 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.
15. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of placeStateNew
York.
16. 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.
17. NOTICES. All communications hereunder shall be in writing and
effective only upon receipt and if to the Underwriters shall be delivered,
mailed or sent to you in care of Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with a
copy to the Legal Department and in care of Credit Suisse Securities (USA)
LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000, Attention:
Transactions Advisory Group and to the Company shall be delivered, mailed or
sent to Optium Corporation, 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxxxx, 00000, Attention: Chief Executive Officer.
23
Very truly yours,
OPTIUM CORPORATION
By: ________________________
Name:
Title:
24
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE SECURITIES (USA) LLC
Acting severally on behalf of themselves and as Representatives of the
several Underwriters named in Schedule I hereto
By: XXXXXX XXXXXXX & CO.
INCORPORATED
By: ____________________________________________
Name:
Title:
By: CREDIT SUISSE SECURITIES
(USA) LLC
By: _____________________________________________
Name:
Title:
25
SCHEDULE I
NUMBER OF FIRM SHARES TO BE
UNDERWRITER PURCHASED
---------- -----------------------------
Xxxxxx Xxxxxxx & Co. Incorporated..........................
Credit Suisse Securities (USA) LLC.........................
Xxxxxxxxx and Company, Inc. ...............................
Xxxxx and Company, LLC.....................................
--------------
Total:............................................ 5,200,000
===============
I-1
