EXHIBIT 1.1
Plug Power Inc.
Common Stock
(par value $0.01 per share)
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UNDERWRITING AGREEMENT
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_________________ , 1999
Xxxxxxx, Xxxxx & Co.,
Xxxxxxxxx & Xxxxx LLC,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
First Albany Corporation,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Plug Power Inc., a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of ........ shares
(the "Firm Shares") and, at the election of the Underwriters, up to .........
additional shares (the "Optional Shares") of Common Stock, par value $0.01 per
share ("Stock") of the Company (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof being collectively
called the "Shares").
It is understood and agreed by all parties that immediately prior to the
First Time of Delivery (as hereinafter defined), Plug Power, LLC, a Delaware
limited liability company (the "LLC"), will be merged with and into the Company
(the "Merger") on the terms and conditions set forth in that certain Agreement
and Plan of Merger dated ......... .., 1999, by and between the Company and the
LLC (the "Merger Agreement"). It is also understood and agreed by all parties
that immediately prior to the Merger, each of the members of the LLC listed in
Schedule II hereto shall purchase from the LLC, and the LLC shall sell to each
such member, pursuant to the exercise of contractual rights and warrants held by
such member, the number of units of membership interest in the LLC set forth
opposite such member's name therein for the purchase price per share set forth
therein (the "Private Placement").
The Company and the Underwriters, in accordance with the requirements of
Rule 2720 ("Rule 2720") of the National Association of Securities Dealers, Inc.
(the "NASD") and subject to the terms and conditions stated herein, also hereby
confirm the engagement of the services of Xxxxxxx, Xxxxx & Co. (the "Independent
Underwriter") as a "qualified independent underwriter" within the meaning of
Section 2(l) of Rule 2720 in connection with the offering and sale of the
Shares.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters and the Independent Underwriter that:
(a) A registration statement on Form S-1 (File No. 333-86089) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and any post-
effective amendment thereto, each in the form heretofore delivered to you,
and, excluding exhibits thereto, to you for each of the other Underwriters,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act is hereinafter called a "Preliminary Prospectus"; the various
parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 6(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder (other than, in the case of the Preliminary
Prospectus contained in the Initial Registration Statement, with respect to
the omission of the number of shares and price range information and the
other information based thereon) and did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. or by the Independent Underwriter expressly for use
therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they are made) not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxx, Xxxxx & Co. or by
the Independent Underwriter expressly for use therein;
(d) Neither the Company nor the LLC has sustained since the date of
the latest audited financial statements included in the Prospectus any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus or would not be reasonably likely to have
a Material Adverse Effect (as defined below); and, since the respective
dates as of which information is given in the Registration Statement and
the
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Prospectus, there has not been any change in the capital stock (other
than pursuant to the Merger or the Private Placement as contemplated in the
Prospectus) or long-term debt of the Company or the LLC or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
the LLC, considered as one entity, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company and the LLC have good title in fee simple to all real
property and good title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as
are described in the 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 the LLC; and any real
property and buildings held under lease by the Company and the LLC are held
by them under leases which are valid, subsisting and enforceable against
the Company and the LLC and, to the Company's and the LLC's knowledge, the
other parties thereto, 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 the LLC;
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, except where
the failure to be so qualified would not be reasonably likely to have a
material adverse effect on the business, financial position, stockholders'
equity or results of operations of the Company and the LLC, considered as
one entity (a " Material Adverse Effect"); and the LLC has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, with the power to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification,,
except where the failure to be so qualified would not be reasonably likely
to have a Material Adverse Effect;
(g) As of the First Time of Delivery, after giving effect to the
Merger and the Private Placement, the Company will have an authorized
capitalization as set forth in the Prospectus, and all of the issued and
outstanding shares of capital stock of the Company will have been duly and
validly authorized and issued, will be fully paid and non-assessable and
will conform in all material respects to the description of the Stock
contained in the Prospectus;
(h) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and non-assessable and will conform
in all material respects to the description of the Stock contained in the
Prospectus;
(i) The issue and sale of the Shares by the Company hereunder and the
compliance by the Company and the LLC with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated
(including, without limitation, the Merger and the Private Placement) will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or the LLC is a party or by which the Company or the LLC is bound
or to which any of the property or assets of the Company or the LLC is
subject, nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company, the Limited
Liability Company Agreement of Plug Power, LLC dated as of June 27, 1997,
as amended (the "LLC Agreement"), or any statute or any order, rule or
regulation of any court or
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governmental agency or body having jurisdiction over the Company or the LLC
or any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the
consummation by the Company and the LLC of the transactions contemplated by
this Agreement, except the registration under the Act of the Shares and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters;
(j) The Company is not in violation of its Certificate of
Incorporation or By-laws, the LLC is not in violation of the LLC Agreement,
and neither the Company nor the LLC is in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(k) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, and under the caption "Underwriting"
[OTHERS?], insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate summaries in all material
respects;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or the LLC is a party
or of which any property of the Company or the LLC is the subject which, if
determined adversely to the Company or the LLC, would individually or in
the aggregate have a Material Adverse Effect; and, to the best of the
Company's and the LLC's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(m) Neither the Company nor the LLC has any subsidiaries;
(n) Other than as set forth in the Prospectus, the Company and the LLC
own or have the right to use pursuant to license, sublicense, agreement, or
permission all patents, patent applications, trademarks, service marks,
trade names, copyrights, trade secrets, confidential information,
proprietary rights and processes ("Intellectual Property") necessary and
material for the operation of the business of the Company and the LLC as
described in the Prospectus (the "Company Intellectual Property") and have
taken all steps reasonably necessary to secure assignments of such
Intellectual Property from their employees and contractors; to the
knowledge of the Company and the LLC, none of the Company Intellectual
Property has been obtained or is being used by the Company or the LLC in
violation of any contractual or fiduciary obligation binding on the
Company, the LLC or any of their respective directors, executive officers,
employees or consultants; and the Company and the LLC have taken and will
maintain reasonable measures to prevent the unauthorized dissemination or
publication of the Company Intellectual Property.
To the Company's and the LLC's knowledge, neither the Company nor the LLC
has interfered with, infringed upon, misappropriated, or otherwise come
into conflict with any Intellectual Property of third parties, and the
Company and the LLC have not received any charge, complaint, claim, demand,
or notice alleging any such interference, infringement, misappropriation,
or violation (including any claim that the Company or the LLC must license
or refrain from using any Intellectual Property of any third party) which,
if the subject of any unfavorable decision, ruling or finding would,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect;
To the Company's and the LLC's knowledge, there are no legal or
governmental proceedings pending relating to the Company Intellectual
Property other than the prosecution by the Company and the LLC of their
patent applications before the United States Patent Office and appropriate
foreign government agencies, and no proceedings are threatened or
contemplated by governmental authorities or others relating to the Company
Intellectual Property;
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(o) The LLC has been, and as of the First Time of Delivery the Company
will have been, duly admitted as a Member of GE Fuel Cell Systems, L.L.C.
("GEFCS"), a Delaware limited liability company operating under that
certain Amended and Restated Limited Liability Company Agreement of GE Fuel
Cell Systems, L.L.C., dated February 3, 1999, by and among GE On-Site
Power, Inc., a Delaware corporation, and the LLC (the "GEFCS Agreement");
and, the LLC holds, and as of the First Time of Delivery the Company will
hold, a 25% Membership Interest (as defined in the GEFCS Agreement), free
and clear of all liens, encumbrances, equities or claims;
(p) The Merger Agreement is in full force and effect, has been duly
authorized, executed and delivered by the Company and the LLC, and is valid
and binding on the Company and the LLC in accordance with its terms, with
neither party in default thereunder;
(q) Except for obligations or liabilities incurred in connection with
its incorporation and except in connection with the Private Placement or
the transactions contemplated by this Agreement and the Merger Agreement
(including the assumption of the liabilities of the LLC pursuant to the
Merger), the Company has not incurred, directly or indirectly, any
obligations or liabilities or engaged in any business activities of any
type or kind whatsoever or entered into any agreements or arrangements with
any person;
(r) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(s) Neither the Company nor the LLC, nor any of their respective
affiliates, does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(t) To the Company's and the LLC's knowledge, PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(u) Each of the Company and the LLC has reviewed its operations and
that of any third parties with which the Company or the LLC has a material
relationship to evaluate the extent to which the business or operations of
the Company or the LLC will be affected by the Year 2000 Problem. As a
result of such review, the Company and the LLC have no reason to believe,
and each does not believe, that the Year 2000 Problem will have a Material
Adverse Effect or result in any material loss or interference with the
Company's or the LLC's business or operations. The "Year 2000 Problem" as
used herein means any significant risk that computer hardware or software
used in the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the operation
of mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at least
as effectively as in the case of dates or time periods occurring prior to
January 1, 2000.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $........................, the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto and
(b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
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The Company hereby grants to the Underwriters the right to purchase at
their election up to ............ Optional Shares, at the purchase price per
share set forth in the paragraph above, for the purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 consecutive calendar days beginning the day after
the date of this Agreement, setting forth the aggregate number of Optional
Shares to be purchased and the date on which such Optional Shares are to be
delivered, as determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Company hereby confirms its engagement of the services of the
Independent Underwriter as, and the Independent Underwriter hereby confirms
its agreement with the Company to render services as, a "qualified
independent underwriter" within the meaning of Section 2(o) of Rule 2720
with respect to the offering and sale of the Shares.
(b) The Independent Underwriter hereby represents and warrants to, and
agrees with, the Company and the Underwriters that with respect to the
offering and sale of the Shares as described in the Prospectus:
(i) The Independent Underwriter constitutes a "qualified independent
underwriter" within the meaning of Section 2(o) of Rule 2720;
(ii) The Independent Underwriter has participated in the preparation
of the Registration Statement and the Prospectus and has exercised the
usual standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company (after giving effect to
the Merger and the Private Placement), including an examination of the
Registration Statement, information regarding the earnings, assets, capital
structure and growth rate of the Company and other pertinent financial and
statistical data, (B) inquiries of and conferences with the management of
the Company and its counsel and independent public accountants regarding
the business and operations of the Company, (C) consideration of the
prospects for the industry in which the Company competes, estimates of the
business potential of the Company, assessments of its management, the
general condition of the securities markets, market prices of the capital
stock and debt securities of, and financial and operating data concerning,
companies believed by the Independent Underwriter to be comparable to the
Company and the demand for securities of comparable companies similar to
the Shares, and (D) such other studies, analyses and investigations as the
Independent Underwriter has deemed appropriate, and assuming that the
offering and sale of the Shares is made as contemplated herein and in the
Prospectus, the Independent Underwriter recommends, as of the date of the
execution and delivery of this Agreement, that the initial public offering
price for each share be not more than $... 1/4; and
(v) Subject to the provisions of Section 8 hereof, the Independent
Underwriter will furnish to the Underwriters at the First Time of Delivery
a letter, dated the First Time of Delivery, in form and substance
satisfactory to the Underwriters, to the effect of clauses (i) through (iv)
above.
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(c) The Independent Underwriter hereby agrees with the Company and the
Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to the Prospectus, the Independent Underwriter will
render services as a "qualified independent underwriter" within the meaning
of Section 2(l) of Rule 2720 with respect to the offering and sale of the
Shares as described in the Prospectus as so amended or supplemented that
are substantially the same as those services being rendered with respect to
the offering and sale of the Shares as described in the Prospectus
(including those described in subsection (b) above).
(d) The Company, the Underwriters and the Independent Underwriter agree
to comply in all material respects with all of the requirements of Rule
2720 applicable to them in connection with the offering and sale of the
Shares. The Company agrees to cooperate with the Underwriters and the
Independent Underwriter to enable the Underwriters to comply with Rule 2720
and the Independent Underwriter to perform the services contemplated by
this Agreement.
(e) As compensation for the services of the Independent Underwriter
hereunder, the Company agrees to pay the Independent Underwriter $10,000 at
the First Time of Delivery. In addition, the Company agrees promptly to
reimburse the Independent Underwriter for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in
connection with this Agreement and the services to be rendered hereunder.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to Xxxxxxx, Xxxxx & Co., through the facilities of the
Depository Trust Company, ("DTC") for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account
specified by the Company to Xxxxxxx, Sachs & Co. at least forty-eight hours
in advance. The Company will cause the certificates representing the Shares
to be made available for checking and packaging at least twenty-four hours
prior to the Time of Delivery (as defined below) with respect thereto at
the office of DTC or its designated custodian (the "Designated Office").
The time and date of such delivery and payment shall be, with respect to
the Firm Shares, 9:30 a.m., New York City time, on ............., 1999 or
such other time and date as Xxxxxxx, Xxxxx & Co. and the Company may agree
upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New
York time, on the date specified by Xxxxxxx, Sachs & Co. in the written
notice given by Xxxxxxx, Xxxxx & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as Xxxxxxx,
Sachs & Co. and the Company may agree upon in writing. Such time and date
for delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares, if not
the First Time of Delivery, is herein called the "Second Time of Delivery",
and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(k) hereof, will be delivered at the
offices of Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000-0000
(the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at
the Closing Location at 4:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 5, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
6. The Company agrees with each of the Underwriters and with the
Independent Underwriter:
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(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you and the Independent Underwriter, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you and the Independent Underwriter with copies thereof; to
advise you and the Independent Underwriter, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 A.M. New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters and the Independent Underwriter with copies of the
Prospectus in New York City in such quantities as you and the Independent
Underwriter may reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the
Shares and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus in order to comply with
the Act, to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as you may from time to time reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of the Shares at
any time nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as you may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations thereunder (including, at the option of the Company,
Rule 158);
(e) Except in connection with the Merger and the Private Placement as
contemplated by the Prospectus, during the period beginning from the date
hereof and continuing to and including
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the date 180 days after the date of the Prospectus, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder any
securities of the Company or the LLC that are substantially similar to the
Shares, including but not limited to any membership interest in the LLC or
any securities that are convertible into or exchangeable for, or that
represent the right to receive, such membership interests, Stock or any
such substantially similar securities (other than pursuant to employee
stock option plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent;
(f) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement), to make
available to its stockholders consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional non-confidential information
concerning the business and financial condition of the Company as you may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(i) To use its best efforts to list for quotation the Shares on the
National Association of Securities Dealers Automated Quotations National
Market System ("NASDAQ");
(j) To file with the Commission such information on Form 10-Q or Form
10-K as may be required by Rule 463 under the Act; and
(k) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
7. The Company covenants and agrees with the several Underwriters and the
Independent Underwriter that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters, the Independent Underwriter and dealers; (ii) the
cost of printing or producing any Agreement among Underwriters, this Agreement,
the Blue Sky Memorandum, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase, sale and
delivery of the Shares; (iii) all expenses in connection with the qualification
of the Shares for offering and sale under state securities laws as provided in
Section 6(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing
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the Shares on the NASDAQ; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as specifically provided in this Section,
and Sections 10 and 13 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
8. The respective obligations of the Underwriters and the Independent
Underwriter hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of such Time of Delivery, true and correct, the condition that the
Company shall have performed all of its obligations hereunder theretofore to be
performed, the condition (in the case of the Underwriters) that the Independent
Underwriter shall have furnished to the Underwriters the letter referred to in
clause (v) of Section 4(b) hereof and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
6(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Ropes & Xxxx, counsel for the Underwriters, shall have furnished
to you such written opinion or opinions (a draft of each such opinion is
attached as Annex II(a) hereto), dated such Time of Delivery, with respect
to the matters covered in paragraphs (i), (ii), (vi), and (xi) of
subsection (c) below as well as such other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxxx, Procter & Xxxx, LLP, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached
as Annex II(b) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and exists as a
corporation in good standing under the laws of the State of Delaware, with
corporate power to conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the shares issued in the Merger and the Private
Placement and the Shares being delivered at such Time of Delivery) have
been duly and validly authorized and, when issued and delivered in
accordance with this Agreement, will be validly issued, fully paid and
nonassessable; and the Shares will conform in all material respects to the
description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
[list jurisdictions];
(iv) The Merger Agreement has been duly authorized, executed and
delivered by the Company and the LLC; the Merger has been consummated in
accordance with the Merger Agreement; and the Certificate of Merger
relating thereto has been filed with the Secretary of State of Delaware and
the Merger has become effective under Delaware law;
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(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or the LLC is a party or of which any property
of the Company or the LLC is the subject which, if determined adversely to
the Company or the LLC, would individually or in the aggregate have a
Material Adverse Effect; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(vi) This Agreement has been duly authorized, executed and delivered
by the Company and the LLC;
(vii) The issue and sale of the Shares being delivered at such
Time of Delivery by the Company and the compliance by the Company with all
of the provisions of this Agreement and the consummation of the
transactions herein contemplated (including, without limitation, the Merger
and the Private Placement) will not result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument filed as an exhibit to the Registration Statement or identified
by counsel to the Underwriters and specified on a schedule to such opinion,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company, the LLC Agreement
or any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over the
Company, the LLC or any of their properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement (including,
without limitation, the Merger and the Private Placement), except the
registration under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(ix) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, and under the caption "Underwriting"
(but only with respect to the description of this Agreement set forth
therein) [OTHERS?], insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate summaries in all
material respects;
(x) The Company is not an "investment company", as such term is
defined in the Investment Company Act; and
(xi) Each of the Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
appears on its face to be appropriately responsive to the requirements of
the Act and the rules and regulations thereunder, although they do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (ii) of this
Section 8(c); such counsel have participated in the preparation of the
Registration Statement and Prospectus and have participated in discussions
with the Representatives, counsel for the Underwriters, and representatives
of the Company and its accountants, and that on the basis of the
information gained in the course of the performance of the services
referred to above, considered in the light of such counsel's understanding
of the applicable law and the experience such counsel has gained through
their practice under the Securities Act and the Exchange Act, nothing that
came to such counsel's attention in the course of such review has caused
them to believe that the
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Registration Statement or any further amendment thereto made by the Company
prior to such Time of Delivery contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that, as of its
date, the Prospectus or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or that, as of such
Time of Delivery, either the Registration Statement or the Prospectus or
any further amendment or supplement thereto made by the Company prior to
such Time of Delivery contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading; and
such counsel does not know of any amendment to the Registration Statement
required to be filed or know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement
or required to be described in the Registration Statement or the Prospectus
which are not filed or described as required.
In rendering such opinion, such counsel may state that (i) they express no
opinion as to laws other than the internal laws of The Commonwealth of
Massachusetts, the General Corporation Law and the Limited Liability Company Act
of the State of Delaware, and the federal laws of the United States of America,
(ii) that the limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such that such counsel shall not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for those referred to in the opinion in
subsection (ix) of this Section 8(c), and (iii) that they make no statement as
to the financial statements, other financial data and related schedules
contained in the Registration Statement or the Prospectus.
(d) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto (the
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(e) (i) Neither the Company nor the LLC shall have sustained since
the date of the latest audited financial statements included in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus there
shall not have been any change in the capital stock or long-term debt of
the Company or the LLC or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and the LLC, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no
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such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on NASDAQ; (ii) a
suspension or material limitation in trading in the Company's securities on
NASDAQ; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York or Massachusetts State authorities;
or (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been
duly listed for quotation on NASDAQ;
(i) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each securityholder of the Company
listed on Schedule III hereto, substantially to the effect set forth in
Subsection 6(e) hereof in form and substance satisfactory to you;
(j) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(k) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company reasonably
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (e) of this Section and as to such other matters as
you may reasonably request;
(l) The Merger shall have been consummated as contemplated by the
Prospectus; and
(m) The Private Placement shall have been consummated and the Company
shall have received the proceeds therefrom as contemplated by the
Prospectus.
9. The Independent Underwriter hereby consents to the references to
it as set forth under the caption "Underwriting" in the Prospectus and in any
amendment or supplement thereto made in accordance with Section 6(a) hereof.
10. (a) The Company and the LLC will jointly and severally indemnify
and hold harmless each Underwriter and the Independent Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter or the Independent Underwriter, as the case may be, may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter or the
Independent Underwriter, as the case may be, for any legal or other
expenses reasonably incurred by such Underwriter or the Independent
Underwriter, as the case may be, in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company and the LLC shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Xxxxxxx, Sachs & Co. or
the Independent Underwriter expressly for use therein or constitutes a
reference to the Independent Underwriter consented to by it pursuant to
Section 9 hereof.
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(b) Each Underwriter will indemnify and hold harmless the Company and
the Independent Underwriter, as the case may be, against any losses,
claims, damages or liabilities to which the Company and the Independent
Underwriter, as the case may be, may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and
will reimburse the Company and the Independent Underwriter, as the case may
be, for any legal or other expenses reasonably incurred by the Company and
the Independent Underwriter, as the case may be, in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) The Independent Underwriter will indemnify and hold harmless the
Company and each Underwriter against any losses, claims, damages or
liabilities to which the Company or such Underwriter, as the case may be,
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by the Independent Underwriter expressly for use
therein or constitutes a reference to the Independent Underwriter consented
to by it pursuant to Section 9 hereof; and will reimburse the Company or
each Underwriter, as the case may be, for any legal or other expenses
reasonably incurred by the Company or each Underwriter, as the case may be,
in connection with investigating or defending any such action or claim as
such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
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(e) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by each party to this
agreement from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of each party to this agreement in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the LLC, the Underwriters and the Independent Underwriter shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company, the total underwriting discount and
commissions payable to the Underwriters as set forth in the table on the
cover page of the Prospectus and the fee payable to the Independent
Underwriter pursuant to the first sentence of Section 4(e) hereof,
respectively, bear to the sum of the total proceeds from the sale of the
Shares (before deducting expenses) in the offering and the fee payable to
the Independent Underwriter pursuant to the first sentence of Section 4(e)
hereof. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or either the
Underwriters or the Independent Underwriter on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the
Underwriters and the Independent Underwriter agree that it would not be
just and equitable if contributions pursuant to this subsection (e) were
determined by pro rata allocation (even if the Underwriters and the
Independent Underwriter were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter nor the Independent
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, and the Independent
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by the
Underwriters and distributed to the public were offered to the public,
exceeds the amount of any damages which such Underwriter or the Independent
Underwriter, as the case may be, have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the LLC under this Section 10
shall be in addition to any liability which the Company or the LLC may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter or the Independent
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company
(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and to
each person, if any, who controls the Company or the Independent
Underwriter within the meaning of the Act; and the obligations of the
Independent Underwriter under this Section 10 shall be in addition to any
liability which the Independent Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each
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officer and director of the Company (including any person who, with his or
her consent, is named in the Registration Statement as about to become a
director of the Company) and to each person, if any, who controls the
Company or any Underwriter within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery,
you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange
for the purchase of such Shares, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In
the event that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Shares, or the
Company notifies you that it has so arranged for the purchase of such
Shares, you or the Company shall have the right to postpone such Time of
Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments to the Registration
Statement or the Prospectus which in your opinion may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company
as provided in subsection (a) above, the aggregate number of such Shares
which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company
as provided in subsection (a) above, the aggregate number of such Shares
which remains unpurchased exceeds one-eleventh of the aggregate number of
all the Shares to be purchased at such Time of Delivery, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a defaulting Underwriter
or Underwriters, then this Agreement (or, with respect to the Second Time
of Delivery, the obligations of the Underwriters to purchase and of the
Company to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company or
the LLC, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 10 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the LLC, the several Underwriters and the
Independent Underwriter, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter, the Independent Underwriter or
any controlling person of any Underwriter, the Independent Underwriter the
Company, or the LLC, or any officer or director or controlling person of the
Company or the LLC, and shall survive delivery of and payment for the Shares.
Anything herein to the contrary notwithstanding, the indemnity agreement of
the Company and the LLC in subsection (a) of Section 10 hereof, the
representations and warranties in subsections (b) and (c) of Section 1 hereof
and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificate furnished by the
Company pursuant to Section 8 hereof, insofar as they may constitute a basis for
indemnification for liabilities (other than payment by the Company of expenses
-16-
incurred or paid in the successful defense of any action, suit or proceeding)
arising under the Act, shall not extend to the extent of any interest therein of
a controlling person or partner of an Underwriter or the Independent Underwriter
who is a director, officer or controlling person of the Company or the LLC when
the Registration Statement has become effective or who, with his or her consent,
is named in the Registration Statement as about to become a director of the
Company, except in each case to the extent that an interest of such character
shall have been determined by a court of appropriate jurisdiction as not against
public policy as expressed in the Act. Unless in the opinion of counsel for the
Company or the LLC the matter has been settled by controlling precedent, the
Company or the LLC, as the case may be, will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question of whether such interest is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
the Company and the LLC shall not then be under any liability to any Underwriter
or the Independent Underwriter except as provided in the second sentence of
Section 4(e) hereof and Sections 7 and 10 hereof; but, if for any other reason,
any Shares are not delivered by or on behalf of the Company as provided herein,
the Company and the LLC will jointly and severally reimburse the Underwriters
through you for all out-of-pocket expenses approved in writing by you, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and the LLC shall then be under no further liability
to any Underwriter or the Independent Underwriter in respect of the Shares not
so delivered except as provided in the second sentence of Section 4(e) hereof
and Sections 7 and 10 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxx Xxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to the Independent Underwriter shall be delivered or sent by
mail, letter or facsimile transmission to the name and address of Independent
Underwriter; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 10(d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Independent Underwriter, the Company, the LLC and, to
the extent provided in Sections 10 and 12 hereof, the officers and directors of
the Company and each person who controls the Company, the LLC, the Independent
Underwriter, any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters and the Independent Underwriter, this
letter and such acceptance hereof shall constitute a binding agreement among
each of the Underwriters, the Independent Underwriter and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters (U.S. Version), the form of which shall be submitted to the Company
for examination upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
Plug Power Inc.
By: _____________________________
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxxxx & Xxxxx LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
First Albany Corporation
By:_______________________________________
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
Xxxxxxx, Xxxxx & Co., as Independent Underwriter
By:_______________________________________
Name:
Title:
The undersigned joins this Agreement solely for purposes of Sections 10,
12, 13 and 15 of the Agreement.
Plug Power, LLC
By:_______________________________
Name:
Title:
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SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------------------------------------------------- --------------- ------------------
Xxxxxxx, Sachs & Co.................................. xxxxxx xxxxx
Xxxxxxxxx & Xxxxx LLC................................ xxxxxx xxxxx
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated... xxxxxx xxxxx
First Albany Corporation............................. xxxxxx xxxxx
--------------- ------------------
Total............................
xxxxxx xxxxx
=============== ==================
--------------- ------------------
SCHEDULE II
Private Placement
SCHEDULE III
Securityholders Subject to Lock-up Agreements
ANNEX I
FORM OF ANNEX I DESCRIPTION OF COMFORT LETTER
FOR REGISTRATION STATEMENTS ON FORM S-1
Pursuant to Section 8(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters and the Independent Underwriter to the
effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the representatives
of the Underwriters or the Independent Underwriter, as the case may be (the
"Representatives") and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus as indicated in their reports thereon copies of which have been
furnished to the Representatives and are attached hereto, and on the basis
of specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the related published
rules and regulations, nothing came to their attention that cause them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus agrees
with the corresponding amounts (after restatements where applicable) in the
audited consolidated financial statements for such five fiscal years which
were included or incorporated by reference in the Company's Annual Reports
on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the latest
available interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since
the date of the latest audited financial statements included in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived any unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the consolidated long-
term debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in clause (E) there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
decreases or increases which the Prospectus discloses have occurred or
may occur or which are described in such letter;
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and (vi)
above, they have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified by
the Representatives, which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus, or in Part II
of, or in exhibits and schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
