Exhibit 1.1
9,000,000 SHARES
NETEZZA CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
[ ], 2007
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXX XXXXXXX & CO. INCORPORATED
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Netezza Corporation, a Delaware corporation
("COMPANY"), agrees with the several Underwriters named in Schedule A hereto
("Underwriters") to issue and sell to the several Underwriters 9,000,000 shares
of its Common Stock ("SECURITIES" or the "FIRM SECURITIES"). The Company also
agrees to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 1,350,000 additional outstanding shares ("OPTIONAL
SECURITIES") of the Company's Securities, as set forth below. The Firm
Securities and the Optional Securities are herein collectively called the
"OFFERED SECURITIES". As part of the offering contemplated by this Agreement,
Credit Suisse Securities (USA) LLC (the "DESIGNATED UNDERWRITER") has agreed to
reserve out of the Firm Securities purchased by it under this Agreement, up to
450,000 shares, for sale to the Company's directors, officers, employees and
other parties associated with the Company (collectively, "PARTICIPANTS"), as set
forth in the Final 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 Final Prospectus.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) Filing and Effectiveness of Registration Statement; Certain
Defined Terms. The Company has filed with the Commission a registration
statement on Form S-1 (No. 333-141522) covering the registration of the
Offered Securities under the Act, including a related preliminary
prospectus or prospectuses. At any particular time, this initial
registration statement, in the form then on file with the Commission,
including all information contained in the registration statement (if
any) pursuant to Rule 462(b) and then deemed to be a part of the
initial registration statement, and all 430A Information and all 430C
Information, that in any case has not then been superseded or modified,
shall be referred to as the "INITIAL REGISTRATION STATEMENT". The
Company may also have filed, or may file with the Commission, a Rule
462(b) registration statement covering the registration of Offered
Securities. At any particular time, this Rule 462(b) registration
statement, in the form then on file with the Commission, including the
contents of the Initial Registration Statement incorporated by
reference therein and including all 430A Information and all 430C
Information, that in any case has not then been superseded or modified,
shall be referred to as the "ADDITIONAL REGISTRATION STATEMENT".
As of the time of execution and delivery of this Agreement, the
Initial Registration Statement has been declared effective under the
Act and is not proposed to be amended. Any Additional Registration
Statement has or will become effective upon filing with the Commission
pursuant to Rule 462(b) and is not proposed to be amended. The Offered
Securities all have been or will be duly registered under the Act
pursuant to the Initial Registration Statement and, if applicable, the
Additional Registration Statement.
For purposes of this Agreement:
"430A INFORMATION", with respect to any registration statement,
means information included in a prospectus and retroactively deemed to
be a part of such registration statement pursuant to Rule 430A(b).
"430C INFORMATION", with respect to any registration statement,
means information included in a prospectus then deemed to be a part of
such registration statement pursuant to Rule 430C.
"ACT" means the Securities Act of 1933, as amended.
"APPLICABLE TIME" means [6:00P.M.] (Eastern time) on the date of
this Agreement.
"CLOSING DATE" has the meaning defined in Section 3 hereof.
"COMMISSION" means the Securities and Exchange Commission.
"EFFECTIVE TIME" with respect to the Initial Registration
Statement or, if filed prior to the execution and delivery of this
Agreement, the Additional Registration Statement means the date and
time as of which such Registration Statement was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c). 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).
"EXCHANGE ACT" means the Securities Exchange Act of 1934.
"FINAL PROSPECTUS" means the Statutory Prospectus that discloses
the public offering price, other 430A Information and other final terms
of the Offered Securities and otherwise satisfies Section 10(a) of the
Act.
"GENERAL USE ISSUER FREE WRITING PROSPECTUS" means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being so specified in
Schedule C to this Agreement.
"ISSUER FREE WRITING PROSPECTUS" means any "issuer free writing
prospectus," as defined in Rule 433, relating to the Offered Securities
in the form filed or required to be filed with the Commission or, if
not required to be filed, in the form retained in the Company's records
pursuant to Rule 433(g).
"LIMITED USE ISSUER FREE WRITING PROSPECTUS" means any Issuer Free
Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus.
The Initial Registration Statement and the Additional
Registration Statement are referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". A "REGISTRATION STATEMENT" with reference to a particular
time means the Initial Registration Statement and any Additional
Registration Statement as of such time. A "REGISTRATION STATEMENT"
without reference to a time means such Registration Statement as of its
Effective Time. For purposes of the foregoing definitions, 430A
Information with respect to a Registration Statement shall be
considered to be included in such Registration Statement as of the time
specified in Rule 430A.
"RULES AND REGULATIONS" means the rules and regulations of the
Commission.
"SECURITIES LAWS" means, collectively, the Xxxxxxxx-Xxxxx Act of
2002 ("XXXXXXXX-XXXXX"), the Act, the Exchange Act, the Rules and
Regulations, the auditing principles, rules, standards and practices
applicable to auditors of "issuers" (as defined in Xxxxxxxx-Xxxxx)
promulgated or approved by the Public Company Accounting Oversight
Board and, as applicable, and the rules of the New York Stock Exchange
("EXCHANGE RULES").
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"STATUTORY PROSPECTUS" with reference to a particular time means
the prospectus included in a Registration Statement immediately prior
to that time, including any 430A Information or 430C Information with
respect to such Registration Statement. For purposes of the foregoing
definition, 430A Information shall be considered to be included in the
Statutory Prospectus as of the actual time that form of prospectus is
filed with the Commission pursuant to Rule 424(b) or Rule 462(c) and
not retroactively.
Unless otherwise specified, a reference to a "rule" is to the
indicated rule under the Act.
(b) Compliance with Securities Act Requirements. (i) (A) At their
respective Effective Times, (B) on the date of this Agreement and (C)
on each Closing Date, each of the Initial Registration Statement and
the Additional Registration Statement (if any) conformed and will
conform in all material respects to the requirements of the Act, (ii)
on its date, at the time of filing of the Final Prospectus pursuant to
Rule 424(b) or (if no such filing is required) at the Effective Time of
the Additional Registration Statement in which the Final Prospectus is
included, and on each Closing Date, the Final Prospectus will conform
in all material respects to the requirements of the Act and the Rules
and Regulations and will 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, and (iii)
on the date of this Agreement, at their respective Effective Times or
issue dates and on each Closing Date, each Registration Statement, the
Final Prospectus, any Statutory Prospectus, any prospectus wrapper
(which has been reviewed and approved by the Company) and any Issuer
Free Writing Prospectus complied or comply, and such documents and any
further amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which the
Final Prospectus, any Statutory Prospectus, any prospectus wrapper
(which has been reviewed and approved by the Company) or any Issuer
Free Writing Prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program. The
preceding sentence does not apply to statements in or omissions from
any such document based upon written information furnished to the
Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such
information is that described as such in Section 8(c) hereof.
(c) Ineligible Issuer Status. (i) At the time of the initial
filing of the Initial Registration Statement and (ii) at the date of
this Agreement, the Company was not and is not an "ineligible issuer,"
as defined in Rule 405, including (x) the Company or any other
subsidiary in the preceding three years not having been convicted of a
felony or misdemeanor or having been made the subject of a judicial or
administrative decree or order as described in Rule 405 and (y) the
Company in the preceding three years not having been the subject of a
bankruptcy petition or insolvency or similar proceeding, not having had
a registration statement be the subject of a proceeding under Section 8
of the Act and not being the subject of a proceeding under Section 8A
of the Act in connection with the offering of the Offered Securities,
all as described in Rule 405.
(d) General Disclosure Package. As of the Applicable Time, neither
(i) the General Use Issuer Free Writing Prospectus(es) issued at or
prior to the Applicable Time, the preliminary prospectus, dated
____________ __, 2007 (which is the most recent Statutory Prospectus
distributed to investors generally) and the other information, if any,
stated in Schedule B to this Agreement to be included in the General
Disclosure Package, all considered together (collectively, the "GENERAL
DISCLOSURE PACKAGE"), nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from any Statutory Prospectus or any Issuer
Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 8(c) hereof.
(e) Issuer Free Writing Prospectuses. Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times through
the completion of the public offer and sale of the Offered Securities
or until
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any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does not
and will not include any information that conflicted, conflicts or will
conflict with the information then contained in the Registration
Statement. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information then contained in the Registration
Statement or as a result of which such Issuer Free Writing Prospectus,
if republished immediately following such event or development, would
include an untrue statement of a material fact or omitted or would omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, (i) the Company has promptly notified or will promptly
notify the Representatives and (ii) the Company has promptly amended or
will promptly amend or supplement such Issuer Free Writing Prospectus
to eliminate or correct such conflict, untrue statement or omission.
The foregoing two sentences do not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in Section 8(c) hereof.
(f) Good Standing of the Company. The Company has been duly
incorporated and is existing and in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the General
Disclosure Package; and the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be duly
qualified or in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), results of operations, business or properties of the
Company and its subsidiaries taken as a whole ("Material Adverse
Effect").
(g) Subsidiaries. Each subsidiary of the Company has been duly
incorporated and is existing and 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 General Disclosure Package; 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 duly qualified or in good standing would
not, individually or in the aggregate, have a Material Adverse Effect;
all of the issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each subsidiary owned
by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects, except as disclosed in the General
Disclosure Package.
(h) Offered Securities. The Offered Securities and all other
outstanding shares of capital stock of the Company have been duly
authorized; the authorized equity capitalization of the Company is as
set forth in the General Disclosure Package; all outstanding shares of
capital stock of the Company are, and, when the Offered Securities have
been delivered and paid for in accordance with this Agreement on each
Closing Date, such Offered Securities will have been, validly issued,
fully paid and nonassessable, will be consistent with the information
in the General Disclosure Package and conform in all material respects
to the description of such Offered Securities contained in the Final
Prospectus; the stockholders of the Company have no preemptive rights
with respect to the Securities; and none of the outstanding shares of
capital stock of the Company have been issued in violation of any
preemptive or similar rights of any security holder.
(i) No Finder's Fee. Except as disclosed in the General Disclosure
Package, there are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with this offering.
(j) Registration Rights. Except as disclosed in the General
Disclosure Package, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company
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owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the Act
(collectively, "registration rights"), and any person to whom the
Company has granted registration rights has agreed not to exercise such
rights until after the expiration of the Lock-Up Period referred to in
Section 5(1) hereof.
(k) Listing. The Offered Securities have been approved for listing
on the New York Stock Exchange, subject to notice of issuance.
(l) Absence of Further Requirements. 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 by the Company,
except such as have been obtained, or made and such as may be required
under state securities laws. No authorization, consent, approval,
license, qualification or order of, or filing or registration with any
person (including any governmental agency or body or any court) in any
foreign jurisdiction is required for the consummation of the
transactions contemplated by this Agreement in connection with the
offering, issuance and sale of the Directed Shares under the laws and
regulations of such jurisdiction except such as have been obtained or
made.
(m) Title to Property. Except as disclosed in the General
Disclosure Package, the Company and its subsidiaries have good and
marketable title to all real properties and good title to all other
properties and assets owned by them, in each case free from liens,
charges, encumbrances and defects that would individually or in the
aggregate have a Material Adverse Effect and, except as disclosed in
the General Disclosure Package, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable leases
with no terms or provisions that would materially interfere with the
use made or to be made thereof by them.
(n) Absence of Defaults and Conflicts Resulting from Transaction.
The execution, delivery and performance of this Agreement, and the
issuance and sale of the Offered Securities will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default or a Debt Repayment Triggering Event (as defined below) under,
or result in the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, (i) the charter or by-laws of the Company or any of its
subsidiaries, (ii) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, or (iii) any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the properties
of the Company or any of its subsidiaries is subject, except, in the
case of each of clauses (ii) and (iii), where such breach, violation or
default would not, individually or in the aggregate, have a Material
Adverse Effect; a "DEBT REPAYMENT TRIGGERING EVENT" means any event or
condition that gives, or with the giving of notice or lapse of time
would give, the holder of any note, debenture, or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its subsidiaries.
(o) Absence of Existing Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its respective
charter or by-laws or in default (or with the giving of notice or lapse
of time would be in default) under any existing obligation, agreement,
covenant or condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which any of them
is a party or by which any of them is bound or to which any of the
properties of any of them is subject, except such defaults that would
not, individually or in the aggregate, have a Material Adverse Effect.
(p) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(q) Possession of Licenses and Permits. The Company and its
subsidiaries possess, and are in compliance with the terms of, all
adequate certificates, authorizations, franchises, licenses and permits
("LICENSES") necessary to the conduct of the business now conducted by
them except for such failure to
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possess any such License that would not, individually or in the
aggregate, have a Material Adverse Effect; and the Company and its
subsidiaries have not received any notice of proceedings relating to
the revocation or modification of any Licenses that, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect.
(r) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent that would have a Material Adverse Effect.
(s) Possession of Intellectual Property. The Company and its
subsidiaries own, possess or can acquire on reasonable terms sufficient
trademarks, trade names, patent rights, copyrights, domain names,
licenses, approvals, trade secrets, inventions, technology, know-how
and other intellectual property and similar rights, including
registrations and applications for registration thereof (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to the conduct of the
business now conducted or proposed in the General Disclosure Package to
be conducted by them, and the expected expiration of any such
Intellectual Property Rights would not, individually or in the
aggregate, have a Material Adverse Effect. Except as disclosed in the
General Disclosure Package (i) there are no rights of third parties to
any of the Intellectual Property Rights owned by the Company or its
subsidiaries; (ii) to the Company's knowledge, there is no material
infringement, misappropriation, breach, default or other violation, or
the occurrence of any event that with notice or the passage of time
would constitute any of the foregoing, by the Company or its
subsidiaries, or by third parties, of any of the Intellectual Property
Rights of the Company or its subsidiaries; (iii) there is no pending
or, to the Company's knowledge, threatened action, suit, proceeding or
claim by others challenging the Company's or any subsidiary's rights in
or to, or the violation of any of the terms of, any of their
Intellectual Property Rights, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (iv) there is
no pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the validity, enforceability
or scope of any such Intellectual Property Rights, and the Company is
unaware of any facts which would form a reasonable basis for any such
claim; (v) there is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by others that the Company
or any subsidiary infringes, misappropriates or otherwise violates or
conflicts with any Intellectual Property Rights or other proprietary
rights of others and the Company is unaware of any facts which would
form a reasonable basis for any such claim; and (vi) none of the
Intellectual Property Rights used by the Company or its subsidiaries in
their businesses has been obtained or is being used by the Company or
its subsidiaries in violation of any contractual obligation binding on
the Company, any of its subsidiaries in violation of the rights of any
persons, except in each case covered by clauses (i) -- (vi) such as
would not, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, have a Material Adverse
Effect.
(t) Environmental Laws. Except as disclosed in the General
Disclosure Package, 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") except for such violations that
would not, individually or in the aggregate, have a Material Adverse
Effect, 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.
(u) Accurate Disclosure. The statements in the General Disclosure
Package and the Final Prospectus under the headings "Description of
Capital Stock", "Shares Eligible for Future Sale", "Risk Factors",
"Business -- Intellectual Property" and "Certain U.S. Federal Income
Tax Considerations for Non-U.S. Holders," insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed
therein, are accurate in all material respects.
(v) Statistical and Market-Related Data. Any third-party
statistical and market-related data included in a
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Registration Statement, a Statutory Prospectus or the General
Disclosure Package are based on or derived from sources that the
Company believes to be reliable and accurate.
(w) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act.
Except as set forth in the General Disclosure Package, the Company, its
subsidiaries and the Company's Board of Directors (the "BOARD") keep
accurate books and records and maintain a system of internal controls
("Internal Controls") that are sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with U.S. generally accepted accounting principles and to
maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management's general or specific authorization,
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Internal Controls are, or upon
consummation of the offering of the Offered Securities will be,
overseen by the Audit Committee (the "AUDIT COMMITTEE") of the Board in
accordance with Exchange Rules. The Company has not publicly disclosed
or reported to the Audit Committee or the Board, and within the next
135 days the Company has no current reason to expect to publicly
disclose or report to the Audit Committee or the Board, a significant
deficiency, material weakness, material adverse change in Internal
Controls or fraud involving management or other employees who have a
significant role in Internal Controls (each, an "INTERNAL CONTROL
EVENT"), any violation of, or failure to comply with, the Securities
Laws, or any similar matter which, if determined adversely, would have
a Material Adverse Effect.
(x) Absence of Accounting Issues. A member of the Audit Committee
has confirmed to the Chief Financial Officer that, except as set forth
in the General Disclosure Package, the Audit Committee is not reviewing
or investigating, and neither the Company's independent auditors nor
its internal auditors have recommended that the Audit Committee review
or investigate, (i) adding to, deleting, changing the application of,
or changing the Company's disclosure with respect to, any of the
Company's material accounting policies; (ii) any matter which could
result in a restatement of the Company's financial statements for any
annual or interim period during the current or prior three fiscal
years; or (iii) any Internal Control Event.
(y) Litigation. Except as disclosed in the General Disclosure
Package, there are no pending actions, suits or proceedings (including
any inquiries or investigations by any court or governmental agency or
body, domestic or foreign) against 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 Company's knowledge, no
such actions, suits or proceedings (including any inquiries or
investigations by any court or governmental agency or body, domestic or
foreign) are threatened.
(z) Financial Statements. The financial statements included in
each Registration Statement and the General Disclosure Package present
fairly in all material respects the financial position of the Company
and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis.
(aa) No Material Adverse Change in Business. Except as disclosed
in the General Disclosure Package, since the end of the period covered
by the latest audited financial statements included in the General
Disclosure Package (i) there has been no change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or otherwise), results of operations, business or properties
of the Company and its subsidiaries, taken as a whole, (ii) except as
disclosed in or contemplated by the General Disclosure Package, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock and (iii) except as
disclosed in or contemplated by the General Disclosure Package, there
has been no material adverse change in the capital stock, short-term
indebtedness, long-term indebtedness, net current assets or net assets
of the Company and its subsidiaries.
(bb) Investment Company Act. The Company is not and, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the General
Disclosure
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Package, will not be an "investment company" as defined in the
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT").
(cc) Absence of Unlawful Influence. The Company has not offered or
sold, or caused the Underwriters to offer or sell, 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 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.
(dd) Taxes. The Company and its subsidiaries have filed all
federal, state, local and non-U.S. tax returns that are required to be
filed or have requested extensions thereof (except in any case in which
the failure so to file would not have a Material Adverse Effect); and,
except as set forth in the General Disclosure Package, the Company and
its subsidiaries have paid all taxes (including any assessments, fines
or penalties) required to be paid by them, except for any such taxes,
assessments, fines or penalties currently being contested in good faith
or as would not, individually or in the aggregate, have a Material
Adverse Effect.
(ee) Insurance. The Company and its subsidiaries are insured by
insurers with appropriately rated claims paying abilities against such
losses and risks and in such amounts as are prudent and customary for
the businesses in which they are engaged; all policies of insurance
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; and
there are no material claims by the Company or any of its subsidiaries
under any such policy or instrument as to which any insurance company
is denying liability or defending under a reservation of rights clause;
neither the Company nor any such subsidiary has been refused any
material insurance coverage sought or applied for; neither the Company
nor any such subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
Material Adverse Effect, except as set forth in or contemplated in the
General Disclosure Package; and the Company currently intends to obtain
directors' and officer's insurance in such amounts as is customary for
an initial public offering.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements, and subject to the terms and
conditions set forth herein, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at a purchase price of $ per share, that number of Firm Securities set
forth opposite the name of such Underwriter in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the several Underwriters in a form reasonably acceptable to the
Representatives against payment of the purchase price in Federal (same day)
funds by official bank check or checks or wire transfer to an account at a bank
acceptable to the Representatives drawn to the order of in the case of
shares of Firm Securities and in the case of
shares of Firm Securities, at the office of Xxxxxxx Procter LLP, at 9:00 A.M.,
New York time, on , 2007, or at such other time not later than seven
full business days thereafter as the Representatives and the Company determine,
such time being herein referred to as the "FIRST CLOSING DATE". For purposes of
Rule 15c6-1 under the Exchange Act, the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment
of funds and delivery of securities for all the Offered Securities sold pursuant
to the offering. The Firm Securities so to be delivered or evidence of their
issuance will be made available for checking at the office of Xxxxxxx Procter
LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the
Company from time to time not more than 30 days subsequent to the date of the
Final 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 agrees to sell to the Underwriters the number of
Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased from the Company 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
set forth opposite such
8
Underwriter's name (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.
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
will deliver the Optional Securities being purchased on each Optional Closing
Date to or as instructed by the Representatives for the accounts of the several
Underwriters in a form reasonably acceptable to the Representatives, against
payment of the purchase price therefore 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, at the office of Xxxxxxx
Procter LLP. The Optional Securities being purchased on each Optional Closing
Date or evidence of their issuance will be made available for checking at the
office of Xxxxxxx Procter 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 Final Prospectus.
5. Certain Agreements of the Company and the Underwriters. The Company
agrees with the several Underwriters that:
(a) Additional Filings. Unless filed pursuant to Rule 462(c) as
part of the Additional Registration Statement in accordance with the
next sentence, the Company will file the Final Prospectus, in a form
approved by the Representatives, with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, 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 Time of the Initial Registration Statement. The Company will
advise the Representatives promptly of any such filing pursuant to Rule
424(b) and provide satisfactory evidence to the Representatives of such
timely filing. If an Additional Registration Statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of the execution and
delivery of this Agreement, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the Final
Prospectus is finalized and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
the Representatives.
(b) Filing of Amendments: Response to Commission Requests. The
Company will promptly advise the Representatives of any proposal to
amend or supplement at any time the Initial Registration Statement, any
Additional Registration Statement or any Statutory Prospectus and will
not effect such amendment or supplementation without the
Representatives' consent (which consent shall not be unreasonably
withheld); and the Company will also advise the Representatives
promptly of (i`) the effectiveness of any Additional Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement), (ii) any amendment or supplementation of a
Registration Statement or any Statutory Prospectus, (iii) any request
by the Commission or its staff for any amendment to any Registration
Statement, for any supplement to any Statutory Prospectus or for any
addition information, (iv) the institution by the Commission of any
stop order proceedings in respect of a Registration Statement or the
threatening of any proceeding for that purpose, and (v) the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Offered Securities in any jurisdiction or the
institution or threatening of any proceedings for such purpose. The
Company will use its reasonable best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
9
(c) Continued Compliance with Securities Laws. If, at any time
when a prospectus relating to the Offered Securities is (or but for the
exemption in Rule 172 would be) required to be delivered under the Act
by any Underwriter or dealer, any event occurs as a result of which the
Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act, the Company will promptly
notify the Representatives of such event and will promptly prepare and
file with the Commission and furnish, at its own expense, to the
Underwriters and the dealers and any other dealers upon request of the
Representatives, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7
hereof.
(d) Rule 158. As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its security holders 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 Time of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act. For the purpose of
the preceding sentence, "AVAILABILITY DATE" means the day after the end
of the fourth fiscal quarter following the fiscal quarter that includes
such Effective Time on which the Company is required to file its Form
10-Q for such fiscal quarter except that, if such fourth fiscal quarter
is the last quarter of the Company's fiscal year, "Availability Date"
means the day after the end of such fourth fiscal quarter on which the
Company is required to file its Form 10-K.
(e) Furnishing of Prospectuses. The Company will furnish to the
Representatives copies of each Registration Statement, each related
Statutory Prospectus, and, so long as a prospectus relating to the
Offered Securities is (or but for the exemption in Rule 172 would be)
required to be delivered under the Act, the Final Prospectus and all
amendments and supplements to such documents, in each case in such
quantities as the Representatives request. The Final Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the execution and delivery of this Agreement.
All other such documents shall be so furnished as soon as available.
The Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) Blue Sky Qualifications. 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;
provided that in connection therewith, the Company will not be required
to qualify as a foreign corporation or dealer or to file a general
consent to service of process in any jurisdiction or to subject itself
to taxation in excess of a nominal amount in any jurisdiction where it
is not then subject.
(g) Reporting Requirements. During the period of five years
hereafter, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as the
Representatives may reasonably request. However, so long as the Company
is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and is timely filing reports with the
Commission on its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX"), it is not required to furnish such reports or
statements to the Underwriters.
(h) Payment of Expenses. The Company agrees with the several
Underwriters that the Company will pay all expenses incident to the
performance of the obligations of the Company under this Agreement,
including but not limited to any filing fees and other expenses
(including fees and disbursements of counsel to the Underwriters)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as the Representatives
designate and the preparation and printing of memoranda relating
thereto, costs and expenses related to the review by the National
Association of Securities Dealers, Inc. of the
10
Offered Securities (including filing fees and the fees and expenses of
counsel for the Underwriters relating to such review), costs and
expenses relating to investor presentations or any "road show" in
connection with the offering and sale of the Offered Securities
including, without limitation, any travel expenses of the Company's
officers and employees, fees and expenses incident to listing the
Offered Securities on the New York Stock Exchange, American Stock
Exchange, NASDAQ Stock Market and other national and foreign exchanges,
fees and expenses in connection with the registration of the Offered
Securities under the Exchange Act, and expenses incurred in
distributing preliminary prospectuses and the Final Prospectus
(including any amendments and supplements thereto) to the Underwriters
and for expenses incurred for preparing, printing and distributing any
Issuer Free Writing Prospectuses to investors or prospective investors.
The Underwriters agree with the Company that, except as explicitly
provided in this Section and Section 8 entitled "Indemnification and
Contribution," the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on the resale of any of the Securities by them,
any advertising expenses connected with any offers that they make, any
travel and lodging expenses of the representatives of the Underwriters
in connection with the road show (including one half of the cost of any
aircraft chartered in connection with the road show).
(i) Use of Proceeds. The Company will use the net proceeds
received by it in connection with this offering in the manner described
in the "Use of Proceeds" section of the General Disclosure Package and,
except as disclosed in the General Disclosure Package, the Company does
not intend to use any of the proceeds from the sale of the Offered
Securities hereunder to repay any outstanding debt owed to any
affiliate of any Underwriter.
(j) Absence of Manipulation. The Company will not take, directly
or indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Offered Securities.
(k) Restriction on Sale of Securities by Company. For the period
specified below (the "LOCK-UP PERIOD"), the Company will not, directly
or indirectly, take any of the following actions with respect to its
Securities or any securities convertible into or exchangeable or
exercisable for any of its Securities ("LOCK-UP SECURITIES"): (i)
offer, sell, issue, contract to sell, pledge or otherwise dispose of
Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract
to purchase or grant any option, right or warrant to purchase Lock-Up
Securities, (iii) enter into any swap, hedge or any other agreement
that transfers, in whole or in part, the economic consequences of
ownership of Lock-Up Securities, (iv) establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
in Lock-Up Securities within the meaning of Section 16 of the Exchange
Act or (v) file with the Commission a registration statement under the
Act relating to Lock-Up Securities (other than registration statements
on Form S-8 relating to Lock-Up Securities granted or to be granted
pursuant to the terms of a plan disclosed in the General Disclosure
Package, provided that all Lock-Up Securities registered thereunder and
eligible for sale prior to the expiration of the Lock-Up Period are
subject to a lock-up agreement substantially in the form attached as
Exhibit A hereto), or publicly disclose the intention to take any such
action, without the prior written consent of the Representatives,
except for (A) the issuance of the Offered Securities, (B) issuances of
up to 1,000,000 Lock-Up Securities in connection with any acquisition,
collaboration or other strategic transaction involving the Company or
any of its subsidiaries, provided that the recipients thereof enter
into a lock up agreement substantially in the form attached as Exhibit
A hereto, (C) issuances of Lock-Up 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, (D) grants of employee stock options or other equity-based
awards pursuant to the terms of a plan in effect on the date hereof, or
(E) issuances of Lock-Up Securities pursuant to the exercise of such
options. The initial Lock-Up Period will commence on the date hereof
and continue for 180 days after the date hereof or such earlier date
that the Representatives consent to in writing; provided, however, that
if (1) during the last 17 days of the initial Lock-Up Period, the
Company releases earnings results or material news or a material event
relating to the Company occurs or (2) prior to the expiration of the
initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of
the initial Lock-Up Period, then in each case the Lock-Up Period will
be extended until the expiration of the 18-day period beginning on the
date of release of the earnings results or the occurrence of the
materials news or material event, as applicable, unless the
Representatives waive, in writing, such extension. The Company will
provide the
11
Representatives with notice of any announcement described in clause (2)
of the preceding sentence that gives rise to an extension of the
Lock-Up Period.
(l) Transfer Restrictions. In connection with the Directed Share
Program, the Company will ensure that the Directed Shares will be
restricted to the extent required by the National Association of
Securities Dealers, Inc. (the "NASD") or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three
months following the date of the effectiveness of the Registration
Statement. The Designated Underwriter will notify the Company as to
which Participants will need to be so restricted. The Company will
direct the transfer agent to place stop transfer restrictions upon such
securities for such period of time.
(m) Payment of Expenses Related to Directed Share Program. The
Company will pay all fees and disbursements of counsel (including
non-U.S. 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.
(n) Compliance with Foreign Laws. 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. Free Writing Prospectuses. The Company represents and
agrees that, unless it obtains the prior consent of the
Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the
Representatives, it has not made and will not make any offer relating
to the Offered Securities that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a "free writing
prospectus," as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the
Company and the Representatives is hereinafter referred to as a
"PERMITTED FREE WRITING PROSPECTUS." The Company represents that it has
treated and agrees that it will treat each Permitted Free Writing
Prospectus as an "issuer free writing prospectus," as defined in Rule
433, and has complied and will comply with the requirements of Rules
164 and 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record
keeping. The Company represents that is has satisfied and agrees that
it will satisfy the conditions in Rule 433 to avoid a requirement to
file with the Commission any electronic road show.
7. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties of the Company herein (as though made on such Closing Date), to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of their obligations hereunder and to
the following additional conditions precedent:
(a) Accountants' Comfort Letter. The Representatives shall have
received letters, dated, respectively, the date hereof and each Closing
Date, of PricewaterhouseCoopers LLP confirming that they are a
registered public accounting firm and independent public accountants
within the meaning of the Securities Laws and substantially in the form
of Schedule C hereto (except that, in any letter dated a Closing Date,
the specified date referred to in Schedule C hereto shall be a date no
more than three days prior to such Closing Date).
(b) Effectiveness of Registration Statement. 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 Final Prospectus is
finalized and distributed to any Underwriter, or shall have occurred at
such later time as shall have been consented to by the Representatives.
The Final Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) hereof.
Prior to such Closing Date, no stop order suspending the effectiveness
of a Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or the Representatives, shall be contemplated by the
Commission.
12
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, there shall not have occurred (i) any
change, or any development or event involving a prospective change, in
the condition (financial or otherwise), results of operations, business
or properties of the Company and its subsidiaries taken as a whole
which, in the judgment of the Representatives, is material and adverse
and makes it impractical or inadvisable to market 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)), 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 the effect
of which is such as to make it, in the judgment of the Representatives,
impractical to market or to enforce contracts for the sale of the
Offered Securities, whether in the primary market or in respect of
dealings in the secondary market; (iv) any suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum or maximum prices for trading on
such exchange; (v) any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (vi) any
banking moratorium declared by any U.S. federal or New York
authorities; (vii) any major disruption of settlements of securities,
payment or clearance services in the United States or (viii) any attack
on, outbreak or escalation of hostilities or act of terrorism involving
the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of
the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency is such as to make
it impractical or inadvisable to market the Offered Securities or to
enforce contracts for the sale of the Offered Securities.
(d) Opinion of Counsel for the Company. The Representatives shall
have received an opinion, dated such Closing Date, of Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Company, in the form set
forth on Exhibit B hereto.
(e) Opinion of Counsel for Underwriters. The Representatives shall
have received from Xxxxxxx Procter LLP, counsel for the Underwriters,
such opinion or opinions, dated such Closing Date, with respect to such
matters as the Representatives may require and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) Officer's Certificate. The Representatives shall have received
a certificate, dated such Closing Date, of an executive officer of the
Company and a principal financial or accounting officer of the Company
in which such officers 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 with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order suspending
the effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the best of
their knowledge and after reasonable investigation, are contemplated by
the Commission; the Additional Registration Statement (if any)
satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b)
was timely filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) of
Regulation S-T of the Commission; and, subsequent to the respective
dates of the most recent financial statements in the General Disclosure
Package, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the
condition (financial or otherwise), results of operations, business or
properties of the Company and its subsidiaries taken as a whole except
as set forth in the General Disclosure Package or as described in such
certificate.
(g) Lock-Up Agreements. On or prior to the date hereof, the
Representatives shall have received lockup letters from each of the
executive officers and directors of the Company and such other
stockholders of the Company as set forth on Schedule D hereto.
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, whether in
13
respect of an Optional Closing Date or otherwise.
8. Indemnification and Contribution. (a) Indemnification of
Underwriters by Company. The Company will indemnify and hold harmless each
Underwriter, its partners, members, directors, officers, employees, agents,
affiliates and each person, if any who controls such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each an
"INDEMNIFIED PARTY"), against any and all losses, claims, damages or
liabilities, joint or several, to which such Indemnified Party may become
subject, under the Act, the Exchange Act, other Federal or state statutory law
or regulation or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any part of any Registration Statement at any time, any Statutory Prospectus as
of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Indemnified Party for any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending against any loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party is a party thereto), whether threatened or commenced, and in
connection with the enforcement of this provision with respect to any of the
above as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and its affiliates and each person, if any, who controls the
Designated Underwriter within the meaning of either Section 15 of the 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) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
material prepared or approved by the Company for distribution to Participants in
connection with the Directed Share Program or arising out of or based upon 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)
arising out of or based upon the failure of any Participant to pay for and
accept delivery of Directed Shares that the Participant agreed to purchase; or
(iii) arising out of, related to, 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
willful misconduct or gross negligence of the Designated Entities.
(b) Indemnification of Company. Each Underwriter will severally and not
jointly indemnify and hold harmless the Company, each of its directors and each
of its officers who signs a Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act (each, an "UNDERWRITER INDEMNIFIED PARTY") against any
losses, claims, damages or liabilities to which such Underwriter Indemnified
Party may become subject, under the Act, the Exchange Act, or other Federal or
state statutory law or regulation or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement at any time, any Statutory Prospectus at
any time, the Final Prospectus or any Issuer Free Writing Prospectus or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
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 such Underwriter Indemnified Party in connection with
investigating or defending against any such loss, claim, damage, liability,
action, litigation, investigation or proceeding whatsoever (whether or not such
Underwriter Indemnified Party is a party thereto), whether threatened or
commenced, based upon any such untrue statement or omission, or any such alleged
untrue statement or omission as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Final Prospectus furnished on behalf of each
Underwriter: the concession and discount figures appearing in the fourth
paragraph under the caption
14
"Underwriting" and the information contained in the sixth, fifteenth, sixteenth,
seventeenth and nineteenth paragraphs under the caption "Underwriting".
(c) Actions against Parties; Notification. 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) or (b) 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) or (b) 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) or (b) 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 8 (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 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 settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party. In addition (and subject to the provisions
of subsection (e) below), no indemnified party shall, without the prior written
consent of the indemnifying party, effect any settlement of any pending or
threatened action in respect of which indemnity could have been sought
hereunder.
(d) Contribution. If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) 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) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company 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 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 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 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 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 (d) 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 (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to
15
contribute are several in proportion to their respective underwriting
obligations and not joint. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 8(d).
(e) Settlement Without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with the
provisions hereof, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 8(c) effected without its
written consent if (i) such settlement is entered into in good faith by the
indemnified party more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with this Section 8 prior to the date of such
settlement.
9. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representatives and the Company for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 10 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company 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,
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 the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 9 hereof or due to the failure to satisfy any
condition under Section 7 (c) (iii), (iv), (vi), (vii) or (viii) hereof, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities, and the respective
obligations of the Company and the Underwriters pursuant to Section 8 hereof
shall remain in effect. In addition, 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.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse Securities (USA) LLC, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at Netezza
Corporation, 000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000, Attention: President;
provided, however, that any notice to an Underwriter pursuant to Section 8 will
be mailed, delivered or telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective 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.
16
13. Representation of the Underwriters. 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.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Absence of Fiduciary Relationship. The Company acknowledges and
agrees that:
(a) No Other Relationship. The Representatives have been retained
solely to act as underwriters in connection with the sale of the Offered
Securities and that no fiduciary, advisory or agency relationship between the
Company, on the one hand, and the Representatives, on the other, has been
created in respect of any of the transactions contemplated by this Agreement or
the Final Prospectus, irrespective of whether the Representatives have advised
or are advising the Company on other matters;
(b) Arms' Length Negotiations. The price of the Offered Securities set
forth in this Agreement was established by Company following discussions and
arms-length negotiations with the Representatives and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company has been advised
that the Representatives and their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company
and that the Representatives have no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency
relationship; and
(d) Waiver. The Company waives, to the fullest extent permitted by law,
any claims they may have against the Representatives for breach of fiduciary
duty or alleged breach of fiduciary duty and agree that the Representatives
shall have no liability (whether direct or indirect) to the Company in respect
of such a fiduciary duty claim or to any person asserting a fiduciary duty claim
on behalf of or in right of the Company, including stockholders, employees or
creditors of the Company.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company irrevocably and unconditionally
waives any objection to the laying of venue of any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby in
Federal and state courts in the Borough of Manhattan in the City of New York and
irrevocably and unconditionally waives and agrees not to place a claim in any
such court that any such suit or proceeding in any such court has been brought
in an inconvenient forum.
17
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
Company and the several Underwriters in accordance with its terms.
Very truly yours,
NETEZZA CORPORATION
By:
--------------------
Its:
--------------------
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE SECURITIES (USA) LLC
XXXXXX XXXXXXX & CO. INCORPORATED
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By: CREDIT SUISSE SECURITIES (USA) LLC
By:
----------------------------------
Name:
Title:
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:
----------------------------------
Name:
Title:
18
SCHEDULE A
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse Securities (USA) LLC............
Xxxxxx Xxxxxxx & Co. Incorporated.............
Xxxxxxx & Company, LLC........................
Xxxxxx Xxxxxx Partners, LLC...................
---------------
Total....................................
===============
19
SCHEDULE B
1. GENERAL USE FREE WRITING PROSPECTUSES (INCLUDED IN THE GENERAL
DISCLOSURE PACKAGE)
"General Use Issuer Free Writing Prospectus" includes each of the
following documents:
[LIST DOCUMENTS, IF ANY]
2. OTHER INFORMATION INCLUDED IN THE GENERAL DISCLOSURE PACKAGE
The following information is also included in the General Disclosure
Package:
1. The initial price to the public of the Offered Securities.
2. [list other information]]
20
SCHEDULE C
The Representatives shall have received letters, dated,
respectively, the date hereof and the First Closing Date, of
PricewaterhouseCoopers LLP confirming that it is a registered public
accounting firm and independent public accountants within the meaning
of the Securities Laws to the effect that:
(i) in their opinion the audited consolidated
financial statements and schedules examined by them and
included in the Registration Statements and the General
Disclosure Package comply as to form in all material respects
with the applicable accounting requirements of the Securities
Laws;
(ii) with respect to the period(s) covered by the
unaudited quarterly consolidated financial statements included
in the Registration Statements and the General Disclosure
Package, they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in XX
000, Xxxxxxx Financial Information, on the unaudited quarterly
consolidated financial statements (including the noted
thereto) of the Company and its consolidated subsidiaries
included in the Registration Statements and the General
Disclosure Package, and have made inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its consolidated
subsidiaries as to whether such unaudited quarterly
consolidated financial statements comply as to form in all
material respects with the applicable accounting requirements
of the Securities Act and the related published rules and
regulations; they have read the latest unaudited monthly
consolidated financial statements (including the notes
thereto) and the supplementary summary unaudited financial
information of the Company and its consolidated subsidiaries
made available by the Company and the minutes of the meetings
of the stockholders, Board of Directors and committees of the
Board of Directors of the Company; and have made inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its
consolidated subsidiaries as to whether the unaudited monthly
financial statements are stated on a basis substantially
consistent with that of the audited consolidated financial
statements included in the Registration Statement and General
Disclosure Package; and on the basis thereof, nothing came to
their attention which caused them to believe that:
(A) the unaudited financial statements
included in the Registration Statements or the
General Disclosure Package do not comply as to form
in all material respects with the applicable
accounting requirements of the Securities Laws, or
that any material modifications should be made to the
unaudited quarterly consolidated financial statements
for them to be in conformity with generally accepted
accounting principles;
(B) with respect to the period subsequent to
the date of the most recent unaudited quarterly
consolidated financial statements included in the
General Disclosure Package, at a specified date at
the end of the most recent month, there were any
increases in the short-term debt or long-term debt of
the Company and its consolidated subsidiaries, or any
change in stockholders' equity or the consolidated
capital stock of the Company and its consolidated
subsidiaries or any decreases in the net current
assets or net assets of the Company and its
consolidated subsidiaries, as compared with the
amounts shown on the latest balance sheet included in
the General Disclosure Package; or for the period
from the day after the date of the most recent
unaudited quarterly
21
consolidated financial statements for such entities
included in the General Disclosure Package to such
specified date, there were any decreases, as compared
with the corresponding period in the preceding year,
in consolidated net sales, or net operating income,
or in the total or per share amounts of consolidated
income before extraordinary items or net income of
the Company and its consolidated subsidiaries, except
for such changes, increases or decreases set forth in
such letter which the General Disclosure Package
discloses have occurred or may occur;
(iii) With respect to any period as to which
officials of the Company have advised that no consolidated
financial statements as of any date or for any period
subsequent to the specified date referred to in (ii)(B) above
are available, they have made inquiries of certain officials
of the Company who have responsibility for the financial and
accounting matters of the Company and its consolidated
subsidiaries as to whether, at a specified date not more than
three business days prior to the date of such letter, there
were any increases in the short-term debt or long-term debt of
the Company and its consolidated subsidiaries, or any change
in stockholders' equity or the consolidated capital stock of
the Company and its consolidated subsidiaries or any decreases
in the net current assets or net assets of the Company and its
consolidated subsidiaries, as compared with the amounts shown
on the most recent balance sheet for such entities included in
the General Disclosure Package; or for the period from the day
after the date of the most recent unaudited quarterly
financial statements for such entities included in the General
Disclosure Package to such specified date, there were any
decreases, as compared with the corresponding period in the
preceding year, in net sales, or net operating income, or in
the total or per share amounts of consolidated income before
extraordinary items or net income of the Company and its
consolidated subsidiaries and, on the basis of such inquiries
and the review of the minutes described in paragraph (ii)
above, nothing came to their attention which caused them to
believe that there was any such change, increase, or decrease,
except for such changes, increases or decreases set forth in
such letter which the General Disclosure Package discloses
have occurred or may occur; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial and statistical information contained in the
Registration Statements, each Issuer Free Writing Prospectus
(other than any Issuer Free Writing Prospectus that is an
"electronic road show," as defined in Rule 433(h)) and the
General Disclosure Package (in each case to the extent that
such dollar amounts, percentages and other financial and
statistical information are derived from the general
accounting records of the Company and its subsidiaries or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages
and other financial and statistical information to be in
agreement with such results.
For purposes of this Schedule, if the Effective Time of the
Additional Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
Initial Registration Statement and the Additional Registration
Statement as proposed to be filed shortly prior to its Effective Time.
22
SCHEDULE D
[Parties to Lock-Up Agreements]
23
EXHIBIT A
[Form of Lock-Up Agreement]
24
