Exhibit 1.1
6,000,000 SHARES
PRA INTERNATIONAL
COMMON STOCK
UNDERWRITING AGREEMENT
November [-], 2004
CREDIT SUISSE FIRST BOSTON LLC
BEAR, XXXXXXX & CO. INC.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. Introductory. PRA International, a Delaware corporation ("COMPANY")
proposes to issue and sell 3,600,000 shares of its Common Stock, par value $0.01
per share ("SECURITIES"), and certain of the stockholders listed in Schedule A
hereto ("SELLING STOCKHOLDERS") propose severally to sell an aggregate of
2,400,000 outstanding shares of the Securities (such 6,000,000 shares of
Securities being hereinafter referred to as the "FIRM SECURITIES"). The Company
also proposes to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 272,834 additional shares of its Securities, and
certain of the Selling Stockholders also propose to sell to the Underwriters, at
the option of the Underwriters, an aggregate of not more than 627,166 additional
outstanding shares of the Company's Securities, as set forth below (such 900,000
additional shares being hereinafter referred to as the "OPTIONAL SECURITIES").
The Firm Securities and the Optional Securities are herein collectively called
the "OFFERED SECURITIES". As part of the offering contemplated by this
Agreement, Credit Suisse First Boston LLC (the "DESIGNATED UNDERWRITER") has
agreed to reserve out of the Firm Securities purchased by it under this
Agreement up to 300,000 shares for sale to the Company's directors, officers,
employees and other parties associated with the Company (collectively,
"PARTICIPANTS"), as set forth in the Prospectus (as defined herein) under the
heading "Underwriting" (the "DIRECTED SHARE PROGRAM"). The Firm Securities to be
sold by the Designated Underwriter pursuant to the Directed Share Program (the
"DIRECTED SHARES") will be sold by the Designated Underwriter pursuant to this
Agreement at the public offering price. Any Directed Shares not subscribed for
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. The
Company and the Selling Stockholders hereby agree with the several Underwriters
named in Schedule B hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-116424) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A) has
been declared effective under the Securities Act of 1933 ("SECURITIES
ACT") and is not proposed to be amended or (B) is proposed to be amended
by amendment or post-effective amendment. If such registration statement
(the "INITIAL REGISTRATION STATEMENT") has been declared effective,
either (A) an additional registration statement (the "ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)")
under the Securities Act and, if so filed, has become effective upon
filing pursuant to such Rule and the Offered Securities all have been
duly registered under the Securities Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and
will become effective upon filing pursuant to such Rule and upon such
filing the Offered Securities will all have been duly registered under
the Securities Act pursuant to the initial registration statement and
such additional registration statement. If the Company does not propose
to amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose
to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment (if
any) to each such registration statement has been declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c) ("RULE 462(c)") under the Securities Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of this
Agreement, "EFFECTIVE TIME" with respect to the initial registration
statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (A) if the
Company has advised the Representatives that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and
time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement has
not been filed prior to the execution and delivery of this Agreement but
the Company has advised the Representatives that it proposes to file
one, "EFFECTIVE TIME" with respect to such additional registration
statement means the date and time as of which such registration
statement is filed and becomes effective pursuant to Rule 462(b).
"EFFECTIVE DATE" with respect to the initial registration statement or
the additional registration statement (if any) means the date of the
Effective Time thereof. The initial registration statement, as amended
at its Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part of
the initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General Instructions
of the Form on which it is filed and including all information (if any)
deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the
Securities Act, is hereinafter referred to as the "INITIAL REGISTRATION
STATEMENT". The additional registration statement, as amended at its
Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all
information (if any) deemed to be a part of the additional registration
statement as of its Effective Time pursuant to Rule 430A(b), is
hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT". The
Initial Registration Statement and the Additional Registration Statement
are hereinafter referred to collectively as the "REGISTRATION
STATEMENTS" and individually as a "REGISTRATION STATEMENT". The form of
prospectus relating to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE
424(b)") under the Securities Act or (if no such filing is required) as
included in a Registration Statement, is hereinafter referred to as the
"PROSPECTUS". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Securities Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Securities Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed or will
conform, in all material respects to the requirements of the Securities
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial
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Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Securities Act and the Rules and
Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations, neither of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by
any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except where
the failure to be so qualified or in good standing would not have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole ("MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company required to be identified in
the Registration Statement pursuant to Item 601(b)(21) of Regulation S-K
under the Securities Act has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus,
except where the failure to be in good standing would not have a
Material Adverse Effect; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
the failure to be so qualified would not have a Material Adverse Effect;
all of the issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each subsidiary owned
by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects, except pursuant to the Company's senior
credit facility described in the Prospectus.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock are and the Offered Securities, when delivered
and paid for in accordance with this Agreement, will be validly issued,
fully paid and nonassessable and in conformity with the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
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(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(viii) The Securities have been approved for listing subject to
notice of issuance on The Nasdaq Stock Market's National Market.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the
Offered Securities, except (i) such as have been obtained and made under
the Securities Act; (ii) such as have been obtained and made by the
Underwriters with the National Association of Securities Dealers, Inc.
("NASD") in connection with the Offered Securities; and (iii) such as
may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the
charter or by-laws of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them as described in the Prospectus and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS") necessary to conduct in all material respects the
business now operated by them, or presently employed by them as
described in the Prospectus, and have not received any notice of
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infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that could reasonably be expected to
have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating
to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse
Effect; and the Company is not aware of any pending investigation which
might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; all non-GAAP financial
information included in each Registration Statement complies with the
requirements of Regulation G and Item 10 of Regulation S-K under the
Securities Act; and the schedules included in each Registration
Statement present fairly in all material respects the information
required to be stated therein.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xx) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(xxi) Furthermore, the Company represents and warrants to the
Underwriters that (i) the Registration Statement, the Prospectus and any
preliminary prospectus comply, and any further amendments or supplements
thereto will comply, in all material respects 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, and that (ii)
no authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the
securities law and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
(xxii) The Company has not offered, or caused the Underwriters
to offer, any Offered Securities 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
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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.
(b) Each Selling Stockholder severally and not jointly represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have (in the case of Offered Securities to be
issued upon exercise of options deposited with the Custodian, after
giving effect to the exercise of such options pursuant to the applicable
option exercise notice delivered to the Custodian and payment of the
exercise price therefor, in accordance with the Custody Agreement) valid
and unencumbered title to the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date and full right, power and
authority to enter into this Agreement and to sell, assign, transfer and
deliver the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date hereunder; and upon the delivery of and
payment for the Offered Securities on each Closing Date hereunder the
several Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date.
(ii) Such Selling Stockholder has, and on each Closing Date will
have, full legal right, power and authority, and all authorization and
approval required by law, to enter into the Custody Agreement (the
"CUSTODY AGREEMENT") signed by such Selling Stockholder and the
Custodian (as defined below) relating to the deposit of the Offered
Securities to be sold by such Selling Stockholder and the Power of
Attorney ("POWER OF ATTORNEY") appointing Xxxxxxx X. Xxxxxxxx, J.
Xxxxxxx Xxxx and Xxxxx Xxxxxxxxxx as such Selling Stockholder's
attorneys-in-fact (the "ATTORNEYS", and each, an "ATTORNEY") to the
extent set forth therein and relating to the transactions contemplated
hereby; and to sell, assign, transfer and deliver the Offered Securities
to be sold by such Selling Stockholder in the manner provided herein and
therein.
(iii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by such Selling Stockholder for the consummation of the
transactions contemplated by the Custody Agreement or this Agreement in
connection with the sale of the Offered Securities sold by such Selling
Stockholder, except such as have been obtained and made under the
Securities Act and such as may be required under state securities laws.
(iv) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(v) The Power of Attorney and related Custody Agreement with
respect to such Selling Stockholder have been duly authorized, executed
and delivered by such Selling Stockholder and constitute valid and
legally binding obligations of such Selling Stockholder enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(vi) The execution, delivery and performance of the Custody
Agreement and this Agreement, and the consummation of the transactions
herein contemplated will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any statute,
any rule or regulation governing transactions of the type herein
contemplated or any order applicable to such Selling Stockholder of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over such Selling Stockholder or any of their properties,
or any agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any of
the properties of such Selling Stockholder is subject, or the charter or
by-laws of such Selling Stockholder if such Selling Stockholder is a
corporation, the partnership agreement of such Selling Stockholder if
such Selling Stockholder is a partnership, the
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trust agreement of such Selling Stockholder if such Selling Stockholder
is a trust or any other constituent documents of such Selling
Stockholder.
(vii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Securities Act and the Rules and Regulations and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all respects to the requirements of the Securities
Act and the Rules and Regulations did not include, or will not include,
any untrue statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Securities Act
and the Rules and Regulations, and neither of such documents includes,
or will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all respects to the requirements of
the Securities Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The two
preceding sentences apply only to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by or on behalf of such Selling Stockholder
specifically for use therein.
(viii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling Stockholder
and any person that would give rise to a valid claim against such
Selling Stockholder or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with this offering.
(ix) At any time during the period during which a prospectus
relating to the Offered Securities is required to be delivered under the
Securities Act in connection with sales by any Underwriter or dealer, if
there is any change in the information referred to in Section 2(b)(vii)
with respect to a Selling Stockholder, such Selling Stockholder will
immediately notify the Company and the Representatives of such change.
(x) The sale of the Offered Securities by such Selling
Stockholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries that is not set forth
in the Prospectus or any supplement thereto.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $[o] per share, that number
of Firm Securities (rounded up or down, as determined by the Representatives in
their discretion, in order to avoid fractions) obtained by multiplying 3,600,000
Firm Securities in the case of the Company and the number of Firm Securities set
forth opposite the name of such Selling Stockholder in Schedule A hereto, in the
case of a Selling Stockholder, in each
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case by a fraction the numerator of which is the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule B hereto and the
denominator of which is the total number of Firm Securities.
Option exercise notices and/or certificates in negotiable form for the
Offered Securities to be sold by the Selling Stockholders hereunder have been
placed in custody, for delivery under this Agreement, under Custody Agreements
made with the Company, as custodian (in such capacity, the "CUSTODIAN"). Each
Selling Stockholder agrees that the option exercise notices and the shares
represented by the certificates (including shares issuable upon exercise of
options pursuant to such option exercise notices) held in custody for the
Selling Stockholders under such Custody Agreements are subject to the interests
of the Underwriters hereunder, that the arrangements made by the Selling
Stockholders for such custody are to that extent irrevocable, and that the
obligations of the Selling Stockholders hereunder shall not be terminated by
operation of law, whether by the death of any individual Selling Stockholder or
the occurrence of any other event, or in the case of a trust, by the death of
any trustee or trustees or the termination of such trust. If any individual
Selling Stockholder or any such trustee or trustees should die, or if any other
such event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had
not occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to the Representatives drawn to
the order of the Company in the case of 3,600,000 shares of Firm Securities and
the Custodian, for the account of each of the Selling Stockholders (or, with
respect to Offered Securities to be issued upon the exercise of options, the
account of the Company, to the extent of the exercise price therefor), in the
case of 2,400,000 shares of Firm Securities, at the office of Cravath, Swaine &
Xxxxx LLP, at 10:00 A.M., New York time, on November [o], 2004, or at such other
time not later than seven full business days thereafter as the Representatives
and the Company determine, such time being herein referred to as the "FIRST
CLOSING DATE". For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934 (the "EXCHANGE ACT"), the First Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
offering. The certificates for the Firm Securities so to be delivered will be in
definitive form, in such denominations and registered in such names as the
Representatives request and will be made available for checking and packaging at
the office of Cravath, Swaine & Xxxxx LLP at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from the Representatives given to the
Company and the Selling Stockholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per Security to
be paid for the Firm Securities. The Company and the Selling Stockholders agree,
severally and not jointly, to sell to the Underwriters the respective numbers of
Optional Securities obtained by multiplying the number of Optional Securities
specified in such notice by a fraction the numerator of which is 272,834 in the
case of the Company and the number of shares set forth opposite the names of
such Selling Stockholders in Schedule A hereto under the caption "Number of
Optional Securities to be Sold" in the case of the Selling Stockholders and the
denominator of which is the total number of Optional Securities (subject to
adjustment by the Representatives to eliminate fractions). Such Optional
Securities shall be purchased from the Company and each Selling Stockholder for
the account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of Firm Securities (subject to adjustment by the Representatives to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by the Representatives to the
Company and the Selling Stockholders.
8
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives but shall be not later than five full business days after
written notice of election to purchase Optional Securities is given. The Company
and the Custodian will deliver the Optional Securities being purchased on each
Optional Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price therefor in Federal (same
day) funds by official bank check or checks or wire transfer to an account at a
bank acceptable to the Representatives drawn to the order of the Company in the
case of 272,834 Optional Securities and the Custodian, for the account of each
of the Selling Stockholders (or, with respect to Offered Securities to be issued
upon the exercise of options, the account of the Company, to the extent of the
exercise price therefor), in the case of 627,166 Optional Securities, at the
office of Cravath, Swaine & Xxxxx LLP. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as the Representatives
request upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the office of Cravath, Swaine &
Xxxxx LLP at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Company
will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise the Representatives promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Securities Act
but the Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
on or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have
been consented to by the Representatives.
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without the Representatives' consent, which consent shall not be
unreasonably withheld; and the Company will also advise the
Representatives promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of a
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of a Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
9
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Securities Act in
connection with sales by any Underwriter or dealer, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the
Securities Act, the Company will promptly notify the Representatives of
such event and will promptly prepare and file with the Commission, at
its own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Neither the Representatives' consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Securities Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of
the Company's fiscal year, "AVAILABILITY DATE" means the 90th day after
the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (three of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so long
as a prospectus relating to the Offered Securities is required to be
delivered under the Securities Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements
to such documents, in each case in such quantities as the
Representatives request. The Prospectus shall be so furnished on or
prior to 3:00 P.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other such documents
shall be so furnished as soon as available. The Company and the Selling
Stockholders will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in
effect so long as required for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as the Representatives may reasonably request.
(h) For the period specified below (the "LOCK-UP PERIOD"), the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Securities Act relating to, any
additional shares of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Representatives, except that the Company may (i) issue Securities
pursuant to the conversion or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each case
outstanding on the date hereof; (ii) grant employee stock options or
restricted stock awards or other equity awards pursuant to the terms of
a plan in effect on the date hereof; (iii) issue Securities pursuant to
the exercise of such options or other equity awards;
10
and/or (iv) file with the Commission one or more registration statements
on Form S-8 registering the Securities issuable under the Company's
stock option plans in effect on the date hereof, in each case subject to
no further transfer during the Lock-Up Period. The initial Lock-Up
Period will commence on the date of this Agreement and continue for 180
days after the date of the initial public offering of the Firm
Securities or such earlier date that the Representatives consent to in
writing; provided, however, that for purposes of allowing the
Representatives to comply with NASD Rule 2711(f)(4) and NYSE Rule
472(f)(4), if (1) during the last 17 days of the initial Lock-Up Period,
the Company releases earnings results or material news or a material
event relating to the Company occurs or (2) prior to the expiration of
the initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of
the initial Lock-Up Period, then in each case the Lock-Up Period will be
extended until the expiration of the 18-day period beginning on the date
of release of the earnings results or the occurrence of the material
news or material event, as applicable, unless the Representatives waive,
in writing, such extension.
(i) The Company and each Selling Stockholder agree with the
several Underwriters that the Company and such Selling Stockholder will
pay all expenses incident to the performance of the obligations of the
Company and such Selling Stockholder, as the case may be, under this
Agreement, for any filing fees and other expenses (including the
reasonable fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Representatives designate and the printing of
memoranda relating thereto, for the filing fee incident to the review by
the NASD of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company
and one-half of the costs of the rental of the airplane used by the
Representatives and the Company's officers in connection with attending
or hosting meetings with prospective purchasers of the Offered
Securities, for any transfer taxes on the sale by the Selling
Stockholders of the Offered Securities to the Underwriters and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(j) Each Selling Stockholder agrees, for the Lock-Up Period, not
to offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any additional shares of the Securities of the
Company or securities convertible into or exchangeable or exercisable
for any shares of Securities, enter into a transaction which would have
the same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Securities, whether any such aforementioned transaction
is to be settled by delivery of the Securities or such other securities,
in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or enter into any such
transaction, swap, hedge or other arrangement, without, in each case,
the prior written consent of the Representatives; provided, that the
terms of this Section 5(j) shall not apply to Securities acquired by a
Selling Stockholder in the open market; provided further, that a Selling
Stockholder may transfer Securities (or any securities convertible
thereinto or exercisable or exchangeable therefor) to any of the
following transferees who agree to be bound in writing by the terms of
this Section 5(j) prior to such transfer and who receive such Securities
in a transfer not involving a disposition for value: (i) any donee(s) of
one or more bona fide gifts of Securities; (ii) any trust for the direct
or indirect benefit of such Selling Stockholder or of any familial
relation thereof not more remote than first cousin, whether by blood,
marriage or adoption; (iii) any beneficiary of such Selling Stockholder
pursuant to a will or other testamentary document or applicable laws of
descent; and/or (iv) if such Selling Stockholder is an investment fund
entity that is a limited partnership, limited liability company or
equivalent foreign entity (an "INVESTMENT FUND ENTITY"), to any other
Investment Fund Entity under the control of such Selling Stockholder or
under the control of the general partner or managing member of such
Selling Stockholder; and provided further, that, with respect to any
Selling Stockholder that is an officer of the Company with a loan
outstanding as of the date hereof and described in the Prospectus that
is secured by Securities, the terms of this Section 5(j) shall not apply
to (A) the pledge of Securities by such officer to secure financing in
replacement of such outstanding loan or (B) the subsequent foreclosure
sale of such Securities by the lender of such replacement financing
11
in the event of a default under such replacement financing by such
officer. The initial Lock-Up Period will commence on the date of this
Agreement and continue for 180 days after the date of the initial public
offering of the Firm Securities or such earlier date that the
Representatives consent to in writing; provided, however, that for
purposes of allowing the Representatives to comply with NASD Rule
2711(f)(4) and NYSE Rule 472(f)(4), if (1) during the last 17 days of
the initial Lock-Up Period, the Company releases earnings results or
material news or a material event relating to the Company occurs or (2)
prior to the expiration of the initial Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the initial Lock-Up Period, then in each
case the Lock-Up Period will be extended until the expiration of the
18-day period beginning on the date of release of the earnings results
or the occurrence of the material news or material event, as applicable,
unless the Representatives waive, in writing, such extension. Nothing
contained in this Section 5(j) shall limit or restrict the ability of a
Selling Stockholder to exercise any options or to convert or exchange
any other security into Securities, provided that any such Securities
received upon such exercise of options or upon such conversion or
exchange of any other security will also be subject to this Section
5(j).
(k) The Company will pay 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.
Furthermore, the Company covenants with the Underwriters that
the Company will comply with all applicable securities and other
applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed Shares are offered in connection with the Directed
Share Program.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of
(i) PricewaterhouseCoopers LLP confirming that they are
independent public accountants within the meaning of the Securities Act
and the applicable published Rules and Regulations thereunder and
stating to the effect that:
(A) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
related Rules and Regulations;
(B) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 100, Interim Financial Information, on
the unaudited financial statements included in the Registration
Statements;
(C) on the basis of the review referred to in clause (B)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of
12
the Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(1) the unaudited financial statements included
in the Registration Statements do not comply as to form
in all material respects with the applicable accounting
requirements of the Securities Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally
accepted accounting principles;
(2) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior
to the date of this Agreement, there was any change in
the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there
was any decrease in consolidated net current assets or
stockholders' equity, as compared with amounts shown on
the latest balance sheet included in the Prospectus; or
(3) for the period from the closing date of the
latest income statement included in the Prospectus to
the closing date of the latest available income
statement read by such accountants, or from the date of
the latest available income statement read by such
accountants to a subsequent specified date not more than
three business days prior to the date of this Agreement,
there were any decreases, as compared with the
corresponding period of the previous year, in
consolidated net sales or in the total or per share
amounts of income before extraordinary items or
consolidated net income;
except in all cases set forth in clauses (2) and (3)
above for changes, increases or decreases which the
Prospectus discloses have occurred or which are
described in such letter;
(D) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading
of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement
with such results, except as otherwise specified in such letter;
(E) they have read and compared the executive
compensation information included in the Registration Statements
with the requirements of item 402 of Regulation S-K and inquired
of certain officials of the Company who have responsibility for
financial and accounting matters whether such executive
compensation information conforms in all material respects with
the disclosure requirements of item 402 of Regulation S-K, and
that nothing came to their attention that caused them to believe
that such information did not conform in all material respects
with the disclosure requirements of Regulation S-K; and
(F) they have read and compared the financial
information specified in such letter included in the
Registration Statements under the heading "Selected
13
Consolidated Financial Data" with the requirements of item 301
of Regulation S-K and inquired of certain officials of the
Company who have responsibility for financial and accounting
matters whether such financial information conforms in all
material respects with the disclosure requirements of item 301
of Regulation S-K, and that nothing came to their attention that
caused them to believe that such information did not conform in
all material respects with the disclosure requirements of
Regulation S-K;
(ii) KPMG LLP (A) confirming that they are independent
public accountants within the meaning of the Securities Act and
the applicable published Rules and Regulations thereunder, (B)
stating to the effect that in their opinion the financial
statements and schedules of CroMedica Inc. examined by them and
included in the Registration Statements comply as to form in all
material respects with the applicable accounting requirements of
the Securities Act and the related published Rules and
Regulations and (C) otherwise in form and substance reasonably
satisfactory to the Representatives; and
(iii) the Chief Financial Officer of the Company with
respect to certain financial information in the Registration
Statements in form and substance reasonably satisfactory to the
Representatives.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the Additional
Registration Statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to its
Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement
is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or such later date as shall have
been consented to by the Representatives. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the execution
and delivery of this Agreement, such Effective Time shall have occurred
not later than 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to
any Underwriter, or shall have occurred at such later date as shall have
been consented to by the Representatives. If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of
this Agreement, the Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including the Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
14
under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the judgment of a majority in interest
of the Underwriters including the Representatives, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or
in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on
The New York Stock Exchange or any setting of minimum prices for trading
on such exchange; (v) any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (vi) any
banking moratorium declared by U.S. Federal or New York authorities;
(vii) any major disruption of settlements of securities or clearance
services in the United States or (viii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters including the Representatives, the effect
of any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received an opinion, dated
the First Closing Date, of Xxxxxx & Xxxxxxx LLP, counsel for the
Company, substantially in the form of Exhibit A hereto.
(e) The Representatives shall have received an opinion, dated
the First Closing Date, of Xxxxx Xxxxxxxxxx, Director of Legal Affairs
for the Company, to the effect that:
(i) There are no contracts, agreements or understandings
known to such counsel between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to
any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities
Act that have not been satisfied or waived prior to the date
hereof or are inapplicable to the sale of securities in an
initial public offering; and
(ii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have
a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the
context of the sale of the Offered Securities; and, to the
knowledge of such counsel, no such actions, suits or proceedings
are threatened or contemplated.
(f) For each Selling Stockholder that is not a natural person,
the Representatives shall have received an opinion, dated such Closing
Date, of counsel for each such Selling Stockholder, substantially to the
effect that:
(i) Each such Selling Stockholder had valid and
unencumbered title to the Offered Securities delivered by such
Selling Stockholder on such Closing Date and had full right,
power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities delivered by
such Selling Stockholder on such Closing Date hereunder; and the
several Underwriters have acquired valid and unencumbered title
to the Offered Securities purchased by them from such Selling
Stockholder on such Closing Date hereunder;
15
(ii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by any such Selling Stockholder
for the consummation of the transactions contemplated by the
Custody Agreement or this Agreement in connection with the sale
of the Offered Securities sold by such Selling Stockholder,
except such as have been obtained and made under the Securities
Act and such as may be required under state securities laws;
(iii) The execution, delivery and performance of the
Custody Agreement and this Agreement and the consummation of the
transactions therein and herein contemplated will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over any such Selling Stockholder or any of its
properties or any agreement or instrument to which any such
Selling Stockholder is a party or by which any such Selling
Stockholder is bound or to which any of the properties of any
such Selling Stockholder is subject, or the charter or by-laws
of any such Selling Stockholder which is a corporation;
(iv) The Power of Attorney and related Custody Agreement
with respect to each such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder
and constitute valid and legally binding obligations of each
such Selling Stockholder enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and
(v) This Agreement has been duly authorized, executed
and delivered by each such Selling Stockholder.
(g) For each Selling Stockholder that is a natural person, the
Representatives shall have received an opinion, dated such Closing Date,
of Xxxxx Xxxxxxxxxx, Director of Legal Affairs for the Company, for each
such Selling Stockholder, to the effect that each such Selling
Stockholder had valid and unencumbered title to the Offered Securities
delivered by such Selling Stockholder on such Closing Date and had full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities delivered by such
Selling Stockholder on such Closing Date hereunder; and the several
Underwriters have acquired valid and unencumbered title to the Offered
Securities purchased by them from such Selling Stockholders on such
Closing Date hereunder;
(h) The Representatives shall have received from Cravath, Swaine
& Xxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated the First Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on the First
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representatives may require, and the Selling
Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(i) The Representatives shall have received a certificate, dated
the First Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable investigation,
shall state on behalf of the Company that: the representations and
warranties of the Company in this Agreement are true and correct; the
Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the First Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and, to such officer's knowledge, no proceedings for that purpose
have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements
of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Securities Act, prior to the time the
Prospectus was printed and distributed to any Underwriter;
16
and, subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except
as set forth in the Prospectus or as described in such certificate.
(j) The Representatives shall have received a letter, dated the
First Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a)(i) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to the First Closing Date for the purposes of this
subsection.
(k) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each of the
executive officers and directors of the Company.
(l) The Custodian will deliver to the Representatives a letter
stating that they will deliver to each Selling Stockholder a United
States Treasury Department Form 1099 (or other applicable form or
statement specified by the United States Treasury Department regulations
in lieu thereof) on or before January 31 of the year following the date
of this Agreement.
(m) With respect to any purchase of Optional Securities, the
Representatives shall have received
(i) a certificate, dated such Optional Closing Date, of
the President or any Vice President and a principal financial or
accounting officer of the Company in which such officers shall
state that the Offered Securities delivered on such Optional
Closing Date have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to such Offered
Securities; and
(ii) an opinion, dated such Optional Closing Date, of
Xxxxxx & Xxxxxxx LLP, counsel for the Company, to the effect
that the Offered Securities delivered on such Optional Closing
Date and all other outstanding shares of the Common Stock of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Offered
Securities.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. The Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, affiliates, members, directors and
officers and each person, if any who controls such Underwriter within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
17
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided further,
that the Company shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any preliminary prospectus to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Offered Securities to a person
to whom it shall be established that there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented in any case where such delivery is
required by the Securities Act if the Company has previously furnished copies
thereof in sufficient quantity to such Underwriter and sufficiently in advance
of the Closing Date to allow for distribution by such Closing Date and the loss,
claim, damage or liability of such Underwriter results from an untrue statement
or omission of a material fact contained in or omitted from the preliminary
prospectus which was identified in writing at such time to such Underwriter and
corrected in the Prospectus or in the Prospectus as then amended or supplemented
and such correction would have cured the defect giving rise to such loss, claim,
damage or liability.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "DESIGNATED 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 (other
than the Prospectus or any Registration Statement, which shall be governed by
the preceding paragraph) prepared by or with the consent and approval 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 the Designated Entities.
(b) The Selling Stockholders, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, affiliates, members, directors
and officers and each person who controls such Underwriter within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that a Selling Stockholder will not be liable in any such
case except to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Selling Stockholder specifically for use therein; provided further,
however, that (i) in no such case shall such Selling Stockholder be liable or
responsible for any amount in excess of the proceeds (net of underwriting
discounts and commissions but before deducting other expenses) applicable to the
Offered Securities sold by such Selling Stockholder pursuant to the transactions
contemplated hereby; and (ii) Selling Stockholders shall not be liable to any
Underwriter under the indemnity agreement in this subsection (b) with respect to
any preliminary prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Offered Securities to a person as to whom it shall be established that there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus or of the Prospectus as then amended or supplemented in any
case where such delivery is required by the Securities Act if the Company has
previously furnished copies thereof in sufficient quantity
18
to such Underwriter and sufficiently in advance of the Closing Date to allow for
distribution by such Closing Date and the loss, claim, damage or liability of
such Underwriter results from an untrue statement or omission of a material fact
contained in or omitted from the preliminary prospectus which was identified in
writing at such time to such Underwriter and corrected in the Prospectus or in
the Prospectus as then amended or supplemented and such correction would have
cured the defect giving rise to such loss, claim, damage or liability.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act, and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements 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 reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting" and the information contained in the sixth, fifteenth and
nineteenth paragraphs (respectively regarding sales to discretionary accounts,
stabilization and electronic distribution) under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a), (b) or (c)
above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to the last paragraph in
Section 7(a) hereof in respect of such action or proceeding, then in addition to
such separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for the Designated Underwriter for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Securities Act of
Section 20 of the Exchange Act. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such (i) settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
19
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and no Selling
Stockholder shall be required to contribute any amount that, when added to any
liability of such Selling Stockholder under subsection (b) above, exceeds the
proceeds (net of underwriting discounts and commissions but before deducting
other expenses) applicable to the Offered Securities sold by such Selling
Stockholder pursuant to the transactions contemplated hereby. 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 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 Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Securities Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed a Registration Statement and to each person, if any, who controls the
Company within the meaning of the Securities Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company and the
Selling Stockholders for the purchase of such Offered Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
20
and arrangements satisfactory to the Representatives, the Company and the
Selling Stockholders for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholders, except as provided in Section 9 (provided
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or pursuant to the occurrence of any
event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c),
the Company and the Selling Stockholders will, jointly and severally, reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed to
the Representatives c/o Credit Suisse First Boston LLC, Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000, Attention: Transactions Advisory Group, or, if sent to
the Company or any Selling Stockholder, will be mailed, delivered or faxed and
confirmed to it at 0000 Xxxxxxxxxx Xxxxx, XxXxxx, XX 00000, Attention: Xxxxxxx
X. Xxxxxxxx; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or faxed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly will be
binding upon all the Underwriters. The Attorneys will act for the Selling
Stockholders in connection with such transactions, and any action under or in
respect of this Agreement taken by the Attorneys (or any of them) will be
binding upon all the Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
21
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
PRA INTERNATIONAL
By
------------------------
Name:
Title:
By
------------------------
Name:
Title: Attorney-in-Fact
As Attorney-in-Fact Acting on
Behalf of Each of the Selling
Stockholders Named on
Schedule A hereto.
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By
-------------------------------------
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By
-------------------------------------
Name:
Title:
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
SCHEDULE A
NUMBER OF NUMBER OF
FIRM OPTIONAL
SECURITIES TO SECURITIES
SELLING STOCKHOLDER BE SOLD TO BE SOLD
------------------- ------------- ----------
Xxxxxxx X. Xxxxxxxx.................................. - 108,658
Xxxxx X. Xxxxxxxx..................................... - 49,958
Xxxxx Xxxx............................................ - 65,684
Xxxxxxx Xxxx.......................................... - 58,673
Xxxxx X. Xxxxxx....................................... - 127,397
Genstar Capital III, L.P. (as general partner
of Genstar Capital Partners III, L.P. and
Stargen III, L.P.).................................... 1,661,426 -
Caisse de depot et Placement du Quebec................ 311,128 -
Paribas North America, Inc............................ 95,827 -
The Toronto Dominion Bank............................. 95,827 -
WFC Holdings Corporation.............................. 86,141 -
Xxxxxxx Xxxxxxx....................................... 53,421 -
Xxx Xxxxxxx........................................... - 37,845
Xxxxxxxx Xxxxxxx...................................... - 16,934
Xxxx X. Xxxxxxxxx..................................... 629 -
Xxxxxxxxx Xxxxx....................................... 296 -
Xxxxxxxxx Xxxxx....................................... - 1,228
Xxxx & Co., Inc....................................... 3,354 -
Xxxx Xxxxxxx.......................................... 5,490 -
Xxxxxxx Xxxxx......................................... - 28
Bay Real Investments Ltd.............................. 2,663 -
J. Xxxxxxx Xxxx....................................... - 6,766
Xxxx Xxxxxxxx......................................... - 12,283
Xxxx Xxxx............................................. - 9,449
Xxxxx Xxxx............................................ - 61
Xxxxxxx Xxxxx......................................... 832 -
Xxxxx Xxxxxxx......................................... - 12,283
Xxxxxxx X. Xxxxxxxx................................... 12,386 -
Xxxxxx X. Xxxxxxxx.................................... 12,386 -
Xxxxx Xxxxx........................................... - 24,262
Xxxxxx Xxxxxx......................................... - 61
Xxxxxxxx Xxxxxxx...................................... - 939
Xxxxx Xxxxxx.......................................... - 6,740
Xxxxxx Xxxxxxx........................................ - 313
Xxxx Xxxxx............................................ - 370
Xxxxx Xxxxx........................................... - 25
Xxxx Xxxxxxx.......................................... - 3,639
Xxxx Xxxxxx........................................... - 803
Xxxxxxx Xxxxxxxx...................................... - 1,253
Lansing Xxxxx Investments, LLC...................... 4,792 -
Xxxxxx Xxxxxx Larruga................................. 4,837 -
Xxx Xxxxxx............................................ - 626
Xxxxxxx X. XxxXxxxxxx................................. 6,317 -
Xxxxxxx Xxxx.......................................... - 4,170
Xxxxx X. Xxxxxxx...................................... 2,081 -
A-1
Xxx Xxxxxx............................................ - 1,253
Xxxxx Xxxxx........................................... - 939
Xxxx Xxxxx............................................ - 000
Xxxx Xxxxxx Xxxx Xxxxxx............................... 4,837 -
Xxxx Xxxxxxx.......................................... - 1,566
Xxxxx Xxxxxx.......................................... - 4,819
Xxxxxxx Xxxx.......................................... - 1,566
Xxxx X'Xxxxxx......................................... - 1,566
Xxxxxxxxx Xxxxxx...................................... - 6,967
PerinClinical Ltd..................................... 2,219 -
Xxxxx Xxxxxxxx........................................ - 234
Xxxxxxx Xxxx.......................................... - 987
Xxxxx Xxxxxxxx........................................ - 7,082
Xxxxx Xxxxxxxxx....................................... - 1,234
Xxxx Xxxxxxx.......................................... - 5,581
Xxxxx Xxxxxxx......................................... - 939
Squam Lake Investors V, L.P........................... 20,028 -
Xxxxx Xxxxxxxxx....................................... - 33,029
Xxxxxxxxxx Xxxxxxxx................................... 41 -
Xxx X. Xxxxxxxx....................................... 2,081 -
Xxxxx Xxxxxx.......................................... - 6,541
Xxxxxxx Xxxxxxx....................................... 4,527 -
Xxx Xxxxxxx........................................... 4,527 -
Waban Investors I, L.P................................ 575 -
Xxxxxxx X.X. Xxxxxxx.................................. 1,332 -
Xxxxxx Xxxxxx......................................... - 1,789
A-2
SCHEDULE B
Number of
Firm Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston LLC.....................................
Bear, Xxxxxxx & Co. Inc............................................
Xxxxxxxxx & Company, Inc...........................................
Xxxxxxx Xxxxx & Company, L.L.C.....................................
------------------
Total................................. 6,000,000
==================
B-1
EXHIBIT A
[FORM OF XXXXXX & XXXXXXX OPINION]
B-2
