3,000,000 Shares SONIC SOLUTIONS Common Stock (no par value) UNDERWRITING AGREEMENT
Exhibit
1.1
3,000,000
Shares
SONIC
SOLUTIONS
Common
Stock
(no
par value)
December
16, 2009
XXXXXXX
XXXXX & COMPANY, L.L.C.
as
Manager of the several Underwriters
x/x
Xxxxxxx & Xxxxx & Xxxxxxx, X.X.X.
000 Xxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Ladies
and Gentlemen:
Sonic
Solutions, a California corporation (the “Company”), proposes
to issue and sell to the several Underwriters named in Schedule I hereto
(the “Underwriters”) an
aggregate of 3,000,000 shares (the “Firm Shares”) of the
common stock, no par value (the “Common Stock”), of
the Company (the “Offering”).
The
Company also proposes to issue and sell to the several Underwriters not more
than an additional 450,000 shares of its Common Stock (the “Additional Shares”)
if and to the extent that Xxxxxxx Xxxxx & Company, L.L.C., book running
manager of the Offering (the “Manager”), shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such shares of Common Stock granted to the Underwriters in Section 3
hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the “Shares.” Such Shares are to be sold
to each Underwriter, acting severally and not jointly, in such amounts as are
listed in Schedule
I opposite the name of each Underwriter. If there are no
Underwriters other than the Manager, the term “Underwriters” shall be deemed to
mean the Manager.
In
consideration of the mutual agreements contained herein and of the interests of
the parties in the transactions contemplated hereby, the parties hereto agree as
follows:
1.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) Filing and
Effectiveness. The Company has prepared and filed in
conformity with the requirements of the Securities Act of 1933, as amended (the
“Securities
Act”), and published rules and regulations thereunder (the “Rules and
Regulations”) adopted by the Securities and Exchange Commission (the
“Commission”),
a “shelf” Registration Statement (as hereinafter defined) on Form S-3 (File No.
333-161815), as amended by Amendment No. 1 thereto, which became effective as of
October 20, 2009 (the “Effective Date”),
including a base prospectus relating to the Shares (the “Base Prospectus”),
and such amendments and supplements thereto as may have been required to the
date of this Agreement. The term “Registration Statement” as used in this
Agreement means the registration statement (including all exhibits, financial
schedules and all documents and information deemed to be a part of the
Registration Statement pursuant to Rule 430A or Rule 430B of the Rules and
Regulations), as amended and/or supplemented to the date of this Agreement,
including the Base Prospectus. The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the effectiveness of
the Registration Statement or suspending or preventing the use of the Prospectus
(as defined below) has been issued by the Commission and no proceedings for that
purpose or pursuant to Section 8A of the Securities Act have been instituted or,
to the knowledge of the Company, are threatened by the
Commission. The Company, if required by the Rules and Regulations of
the Commission, will file the Prospectus, with the Commission pursuant to Rule
424(b) of the Rules and Regulations. The term “Prospectus” as used in
this Agreement means the Prospectus, in the form in which it is to be filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations, or, if the
Prospectus is not to be filed with the Commission pursuant to Rule 424(b), the
Prospectus in the form included as part of the Registration Statement as of the
Effective Date, except that if any revised prospectus or prospectus supplement
shall be provided to the Underwriters by the Company for use in connection with
the Offering and sale of the Shares which differs from the Prospectus (whether
or not such revised prospectus or prospectus supplement is required to be filed
by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term
“Prospectus” shall refer to such revised prospectus or prospectus supplement, as
the case may be, from and after the time it is first provided to the
Underwriters for such use (or in the form first made available to the
Underwriters by the Company to meet requests of prospective purchasers pursuant
to Rule 173 under the Securities Act). Any preliminary prospectus or prospectus
subject to completion included in the Registration Statement or filed with the
Commission pursuant to Rule 424 of the Rules and Regulations is hereafter called
a “Preliminary Prospectus.” Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3, which were filed under the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), on or before the last to occur of the Effective Date, the date of
the Preliminary Prospectus, or the date of the Prospectus, and any reference
herein to the terms “amend,” “amendment,” or “supplement” with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include (i) the filing of any document under the Exchange
Act after the Effective Date, the date of such Preliminary Prospectus or the
date of the Prospectus, as the case may be, which is incorporated by reference
and (ii) any such document so filed. If the Company has filed an
abbreviated registration statement to register additional securities pursuant to
Rule 462(b) under the Rules and Regulations (the “462(b) Registration
Statement”), then any reference herein to the Registration Statement
shall also be deemed to include such 462(b) Registration
Statement. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (“XXXXX”).
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(b) General Disclosure
Package. As of the Applicable Time (as defined below) neither
(i) any General Use Free Writing Prospectus (as defined below) issued at or
prior to the Applicable Time, and the Pricing Prospectus (as defined below) and
the information included on Schedule II hereto,
all considered together (collectively, the “General Disclosure
Package”), (ii) any individual Limited Use Free Writing Prospectus (as
defined below), nor (iii) the bona fide electronic road show (as defined in Rule
433(h)(5) of the Rules and Regulations), if any, that has been made available
without restriction to any person, when considered together with the General
Disclosure Package, included or will include, any untrue statement of a material
fact or omitted or as of the Closing Date will 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; provided, however, that the
Company makes no representations or warranties as to information contained in or
omitted from the General Disclosure Package and any Issuer Free Writing
Prospectus, in reliance upon, and in conformity with, written information
furnished to the Company by the Underwriters specifically for inclusion therein,
which information the parties hereto agree is limited to the Underwriters’
Information (as defined in Section 17). As used
in this paragraph (b) and elsewhere in this Agreement:
“Applicable
Time” means 10:00
p.m., New York time, on the date of this Agreement.
“General
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as evidenced by its
being specified on Schedule II to this
Agreement.
“Issuer
Free Writing Prospectus” means any issuer free writing prospectus that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show
that is a written communication” within the meaning of Rule 433(d)(8)(i) of the
Rules and Regulations, whether or not required to be filed with the Commission,
or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) of the Rules and
Regulations because it contains a description of the Shares or of the Offering
that does not reflect the final terms, in each case 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) of the Rules and
Regulations.
“Limited
Use Free Writing Prospectuses” means any Issuer Free Writing Prospectus that is
not a General Use Free Writing Prospectus.
“Pricing
Prospectus” means the Prospectus and the Base Prospectus, each as amended and
supplemented immediately prior to the Applicable Time, including any document
incorporated by reference therein and any prospectus supplement deemed to be a
part thereof.
(c) Prospectus. No
order preventing or suspending the use of any Preliminary Prospectus, any Issuer
Free Writing Prospectus or the Prospectus relating to the Offering has been
issued by the Commission, and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act has been instituted or, to the knowledge of the
Company, threatened by the Commission, and the Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the
Securities Act and the Rules and Regulations, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to information contained in or
omitted from any Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Underwriters specifically for
inclusion therein, which information the parties hereto agree is limited to the
Underwriters’ Information (as defined in Section
17).
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(d) Registration
Statement. At the time the Registration Statement became
effective, at the date of this Agreement and at the Closing Date, the
Registration Statement conformed and will conform in all material respects to
the requirements of the Securities Act and the Rules and Regulations and did not
and will not contain 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; the Prospectus, at the time the Prospectus
was issued and at the Closing Date, conformed and will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations
and did not and will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided, however, that the
foregoing representations and warranties in this paragraph (d) shall not apply
to information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by the Underwriters specifically for inclusion therein,
which information the parties hereto agree is limited to the Underwriters’
Information (as defined in Section
17).
(e) Issuer Free Writing
Prospectus. Each Issuer Free Writing Prospectus, if any, as of
its issue date and at all subsequent times through the completion of the public
offer and sale of the Shares or until any earlier date that the Company notified
or notifies the Manager as described in Section 6(e), did
not, does not and will not include any information that conflicted, conflicts or
will conflict with the information contained in the Registration Statement,
Pricing Prospectus or the Prospectus, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof that
has not been superseded or modified, or includes an untrue statement of a
material fact or omitted or would omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by the
Underwriters specifically for inclusion therein, which information the parties
hereto agree is limited to the Underwriters’ Information (as defined in Section
17).
(f) Documents Incorporated by
Reference. The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and none of such documents contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain 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, in light of the circumstances under
which they were made, not misleading.
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(g) Ineligible Issuer; Offering
Material. The Company is not an “ineligible issuer” (as
defined in Rule 405 under the Securities Act) as of the eligibility
determination date for purposes of Rules 164, 405 and 433 under the Securities
Act with respect to the Offering. The Company has not, directly or
indirectly, distributed and will not distribute any offering material in
connection with the Offering other than any Preliminary Prospectus, the
Prospectus and other materials, if any, permitted under the Securities Act and
consistent with Section 6(b)
below. Any Issuer Free Writing Prospectus that the Company is
required to file pursuant to Rule 163(b)(2) or Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each Issuer Free Writing
Prospectus that the Company has filed, or is required to file, pursuant to
Rule 433(d) under the Securities Act or that was prepared by or on
behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Except for the
Issuer Free Writing Prospectuses, if any, identified in Schedule II
hereto, each furnished to you before first use, the Company has not prepared,
used or referred to, and will not, without your prior consent, prepare, use or
refer to, any Issuer Free Writing Prospectus.
(h) Good Standing of the
Company. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the General Disclosure Package and the
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not either (i) singly or
in the aggregate, have a material adverse effect on the business, financial
position, management, properties, assets, results of operation, shareholders’
equity, condition (financial or otherwise) or prospects of the Company and its
subsidiaries, taken as a whole, or (ii) prevent the consummation of the
transactions contemplated by this Agreement (the occurrence of any such effect
or any such prevention described in the foregoing clauses (i) and (ii) being
referred to as a “Material Adverse
Effect”).
(i) Good Standing of
Subsidiaries. The only subsidiaries of the Company are
identified on Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the
fiscal year ended March 31, 2009 filed with the Commission. Each
subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the General Disclosure Package and the
Prospectus and is duly qualified to transact business and (to the extent legally
applicable solely with respect to any foreign subsidiary) is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not, singly or in the
aggregate, have a Material Adverse Effect; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable (to the extent legally applicable
solely with respect to any foreign subsidiary) and are owned directly by the
Company, free and clear of all liens, encumbrances, equities or
claims. Except as disclosed in the General Disclosure Package and the
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests of the Company’s subsidiaries are
outstanding.
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(j) Capital
Stock. There are no other shares of the Company’s capital
stock authorized or outstanding except as set forth in the General Disclosure
Package and the Prospectus. The authorized capital stock of the
Company conforms as to legal matters to the description thereof contained in the
General Disclosure Package and the Prospectus. All of the Company’s
issued and outstanding capital stock, securities exercisable for or convertible
into the Company’s capital stock and other rights to purchase or exchange any
securities for shares of the Company’s capital stock have been duly authorized
and validly issued, conform to the description and amounts thereof contained in
the General Disclosure Package and the Prospectus and were issued in compliance
with federal and state securities laws.
(k) Authorization of Common
Stock. The shares of Common Stock outstanding prior to the
issuance of the Shares to be sold by the Company have been duly authorized and
are validly issued, fully paid and non-assessable and were not issued in
violation of the preemptive or similar rights of any security holder of the
Company or any of its subsidiaries.
(l) Authorization of
Shares. The Shares to be sold by the Company have been duly
authorized and, when issued, delivered and paid for in accordance with the terms
of this Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Shares will be free of any lien, security interest,
mortgage, pledge, charge or encumbrance of any kind or preemptive rights, rights
of first refusal, rights of co-sale or similar rights in favor of shareholders
with respect to any of the Shares, or the issuance or sale thereof, whether
pursuant to the Company’s articles of incorporation or bylaws, any legal
requirement, contract or otherwise, and no shareholder consents are required in
connection with the Company’s issuance and sale of such Shares.
(m) Authorization and Execution
of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company. The Company has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement.
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(n) Absence of Defaults and
Conflicts. Neither the Company nor any of its subsidiaries is
(i) in violation of its charter, memorandum of association, by-laws or similar
incorporation or organizational documents or (ii) in violation or default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any subsidiary is
subject (collectively, “Agreements and
Instruments”), except in the case of (ii), for such violations and
defaults that would not, singly or in the aggregate, result in a Material
Adverse Effect; and the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated in this Agreement and in
the Registration Statement, the General Disclosure Package and the Prospectus,
and compliance by the Company with its obligations under this Agreement, do not
and will not, whether with or without the giving of notice or passage of time or
both, conflict with or result in a breach of any of the terms and provisions of,
or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments, nor will such action
result in any violation of the provisions of the charter, memorandum of
association, by-laws or similar organizational documents of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations, except in each case (other than with
respect to such charter, memorandum of association, by-laws or similar
organizational documents of the Company) for such conflicts, violations,
breaches or defaults which would not, singly or in the aggregate, result in a
Material Adverse Effect.
(o) Absence of Further
Requirements. No filing with, or authorization, approval,
consent, license, order, registration, exemption, qualification or decree of,
any court or governmental authority or agency or any sub-division thereof is
required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Shares under this
Agreement or the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or as may be required under
the Securities Act or the rules and regulations of the Commission thereunder and
state securities or blue sky laws.
(p) No Material Adverse
Change. (i) Neither the Company nor any of its subsidiaries
has sustained, since the date of the General Disclosure Package, any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, and (ii) there has not occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, financial position, management,
properties, assets, general affairs, results of operation, shareholders’ equity,
condition (financial or otherwise) or prospects of the Company and its
subsidiaries, taken as a whole, from that set forth in the General Disclosure
Package and the Prospectus.
(q) Absence of
Proceedings. There are no legal or governmental proceedings, inquiries or
investigations pending or, to the Company’s knowledge, threatened to which the
Company or any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject, (i) other than proceedings
accurately described in all material respects in the General Disclosure Package
and the Prospectus and proceedings that would not, singly or in the aggregate,
have a Material Adverse Effect, or on the power or ability of the Company to
perform its obligations under this Agreement or to consummate the transactions
contemplated by the Registration Statement, the General Disclosure Package or
the Prospectus, or (ii) that are required to be described in the Registration
Statement, General Disclosure Package or the Prospectus and are not so
described.
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(r) Investment Company Act of
1940. The Company is not, and after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the General Disclosure Package and the Prospectus will not be,
required to register as an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(s) Environmental
Laws. The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”)
applicable to them, (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a Material Adverse
Effect.
(t) Registration
Rights. Except as described in the General Disclosure Package
and the Prospectus, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration Statement.
(u) Absence of Material
Transactions, Dividend Declarations, Changes in Capital Stock and Debt
Obligations. Subsequent to the respective dates as of which
information is given in each of the Registration Statement, the General
Disclosure Package and the Prospectus, (i) the Company and its subsidiaries have
not incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction except in the ordinary course of business;
(ii) the Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii) there has
not been any change in the capital stock, short-term debt or long-term debt of
the Company and its subsidiaries, except in each case as described in the
General Disclosure Package and the Prospectus.
(v) Title to
Property. Neither the Company nor any of its subsidiaries owns
any real property. The Company and its subsidiaries have good and
marketable title to all personal property owned by them that is material to the
business of the Company and its subsidiaries, in each case free and clear of all
liens, encumbrances and defects, except such as are described in the General
Disclosure Package and the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries. Any real
property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries, in each
case except as described in the General Disclosure Package and the
Prospectus.
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(w) Intellectual
Property. The Company and its subsidiaries own or possess, or
have obtained valid and enforceable licenses for or other rights to use, or can
acquire on reasonable terms, all material patents, patent rights and inventions;
works of authorship (including software) and copyrights; know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures); and trademarks, service marks,
trade names and trade dress (whether or not registered) currently employed by
them in connection with the business now operated by them or that are necessary
for the conduct of their respective businesses described in the General
Disclosure Package and the Prospectus (collectively, “Intellectual
Property”), and, except as disclosed in the General Disclosure Package
and the Prospectus, neither the Company nor any of its subsidiaries has received
any notice of infringement or violation of or conflict with asserted rights of
others with respect to any of the foregoing that, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect. Except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect: (i) there are no
third parties who have or, to the Company’s knowledge after due inquiry, will be
able to establish rights to any Intellectual Property, except for the ownership
rights of the owners of the Intellectual Property which is licensed to the
Company; (ii) there is no infringement by third parties of any Intellectual
Property owned by the Company or any of its subsidiaries (“Company-Owned Intellectual
Property”); (iii) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by any third party challenging the
Company’s rights in or to any Intellectual Property, 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 or scope of any
Company-Owned Intellectual Property; (v) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark, copyright,
trade secret or other intellectual property, privacy or proprietary rights of
any third party, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (vi) there is no patent or patent
application that contains claims that interfere with the issued or pending
claims of any of the Company-Owned Intellectual Property; (vii) the Company and
its contractors have not used any open source software or other publicly
available software (“Publicly Available
Software”) in whole or in part in the development of any part of the
Company-Owned Intellectual Property, nor licensed or distributed to any third
party any combination of Publicly Available Software and Company-Owned
Intellectual Property in a manner that may (A) require, or condition the use or
distribution of any Company-Owned Intellectual Property on, the disclosure,
licensing or distribution of any source code for any portion of such
Company-Owned Intellectual Property or (B) otherwise impose any limitation,
restriction or condition on the right or ability of the Company to use or
distribute any Company-Owned Intellectual Property in any manner; and (viii) the
collection, use, transfer, import, export, storage, disposal and disclosure by
the Company and its subsidiaries of personally identifiable information or other
information relating to persons protected by law has not and will not violate
any Applicable Laws relating to data collection, use, privacy or protection
(“Data Laws”),
and the Company has complied with and is presently in compliance with its
privacy policies, which policies comply in all material respects with all Data
Laws.
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(x) Absence of Material Labor
Disputes; Compliance with ERISA. (i) No material labor dispute
with the employees of the Company or any of its subsidiaries exists, except as
described in the General Disclosure Package and the Prospectus, or, to the
knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors that could, singly or in
the aggregate, have a Material Adverse Effect.
(ii) (A)
Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee
Retirement Security Act of 1974, as amended (“ERISA”)) for which
the Company or any member of its “Controlled Group” (defined as any organization
which is a member of a controlled group of corporations within the meaning of
Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have
any liability (each, a “Plan”) has been
maintained in compliance with its terms and with the requirements of all
applicable statutes, rules and regulations including ERISA and the Code; (B)
with respect to each Plan subject to Title IV of ERISA and the Code, (1) no
“reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred
or is reasonably expected to occur, (2) no “accumulated funding deficiency”
(within the meaning of Section 302 of ERISA), whether or not waived, has
occurred or is reasonably expected to occur, (3) the fair market value of the
assets under each Plan exceeds the present value of all benefits accrued under
such Plan (determined based on those assumptions used to fund such Plan) and (4)
neither the Company nor any member of its Controlled Group has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to Pension Benefit Guaranty Corporation in
the ordinary course and without default) in respect of a Plan (including a
“multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and
(C) each Plan that is intended to be qualified under Section 401(a) of the Code
is so qualified and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
(y) Insurance. The
Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; neither
the Company nor any of its subsidiaries has been refused any insurance coverage
sought or applied for; and neither the Company nor any of its subsidiaries has
any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not, singly or in the aggregate, have a Material Adverse Effect, except as
described in the General Disclosure Package and the Prospectus.
(z) Licenses and
Permits. The Company and its subsidiaries possess all
certificates, authorizations, consents, approvals, orders, licenses and permits
issued by the appropriate federal, state or foreign regulatory authorities
(collectively, the “Permits”) necessary
to conduct their respective businesses as described in the General Disclosure
Package and the Prospectus. All of such Permits are valid and in full
force and effect, except where the invalidity of such Permits or the failure to
be in full force and effect, would not, singly or in the aggregate, have a
Material Adverse Effect. There is no pending, or to the Company’s
knowledge, threatened action, suit, proceeding or investigation that, singly or
in the aggregate, would reasonably be expected to lead to the revocation,
modification, termination, suspension or any other impairment of the rights of
the holder of any such Permit which revocation, modification, termination,
suspension or other impairment would have a Material Adverse
Effect.
10
(aa) Accounting
Controls. The Company and each of its subsidiaries maintains a
system of internal control over financial reporting (as such term is defined in
Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer
and principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
United States generally accepted accounting principles (“GAAP”) including,
without limitation, internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP 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
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company’s internal control over
financial reporting is effective and, except as described in the General
Disclosure Package and the Prospectus, since the end of the Company’s most
recent audited fiscal year, there has been (A) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated)
and (B) no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting. The Company’s
auditors and the Audit Committee of the Board of Directors of the Company have
been advised of (1) any significant deficiencies in the design or operation of
internal controls that could adversely affect the Company’s ability to record,
process, summarize and report financial data, and (2) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company’s internal control over financial reporting.
(bb) Disclosure Controls.
The Company and each of its subsidiaries maintain disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) of the Exchange Act) that
comply with the requirements of the Exchange Act and are effective; such
disclosure controls and procedures have been designed to ensure that all
information (both financial and non-financial) required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in the rules and regulations of the Exchange Act, and that all such information
is accumulated and communicated to the Company’s management as appropriate to
allow timely decisions regarding required disclosure and to make the
certifications of the principal executive officer and principal financial
officer of the Company required under the Exchange Act with respect to such
reports.
(cc) Compliance with the
Xxxxxxxx-Xxxxx Act. There is and has been no failure on the
part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith, including Section 402 related to loans and Sections 302
and 906 related to certifications.
11
(dd) Independent Accountants of
the Company. BDO Xxxxxxx LLP, which has certified certain
consolidated financial statements and supporting schedules of the Company that
are included or incorporated by reference in the General Disclosure Package and
the Prospectus, in addition to Armanino XxXxxxx LLP, are each an independent
registered public accounting firm with respect to the Company and its
subsidiaries as required by the Securities Act and the applicable Rules and
Regulations and the Public Company Accounting Oversight Board (United States)
(the “PCAOB”).
(ee) Financial Statements.
(i) The consolidated financial statements included or incorporated by reference
in the Registration Statement, the General Disclosure Package and the
Prospectus, together with the related schedules and notes, present fairly, in
all material respects, the financial position of the Company and its
subsidiaries at the dates indicated and the statement of operations,
shareholders’ equity and cash flows of the Company and its subsidiaries for the
periods specified; said financial statements comply as to form in all material
respects with the applicable accounting requirements of Regulation S-X and have
been prepared in conformity with GAAP applied on a consistent basis throughout
the periods involved (except as set forth in the notes to such financial
statements). The financial statement schedules, if any, included or incorporated
by reference in the Registration Statement, the General Disclosure Package and
the Prospectus present fairly, in all material respects, in accordance with
GAAP, the information required to be stated therein. The selected
financial data and the summary financial information included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus present fairly, in all material respects, the information shown
therein and have been compiled on a basis consistent in all material respects
with that of the consolidated financial statements included in the Registration
Statement, the General Disclosure Package and the Prospectus, as
applicable.
(ii) No
financial statements or schedules are required to be included in the
Registration Statement, General Disclosure Package and Prospectus that have not
been so included, and there are no off-balance sheet arrangements, “variable
interest entities” within the meaning of Financial Accounting Standards Board
Interpretation No. 46, outstanding guarantees or other contingent obligations of
the Company or any of its subsidiaries that, singly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. All
disclosures contained, included or incorporated by reference in the Registration
Statement and the Prospectus regarding “non-GAAP financial measures” (as such
term is defined by the Commission’s rules and regulations) comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under the
Securities Act, to the extent applicable.
(ff) Tax Liabilities and
Reserves. Other than as set forth in the General Disclosure Package and
the Prospectus, any tax returns required to be filed by the Company or any of
its subsidiaries in any jurisdiction have been filed and any taxes, including
any withholding taxes, excise taxes, penalties and interest, assessments and
fees and other charges due or claimed to be due from such entities have been
paid, other than any of those being contested in good faith and for which
adequate reserves have been provided or any of those currently payable without
penalty or interest, except to the extent that the failure to so file or pay
would not, singly or in the aggregate, result in a Material Adverse
Effect. Other than as set forth in the General Disclosure Package and
the Prospectus, to the knowledge of the Company, there is no material proposed
tax deficiency, assessment, charge or levy against the Company or any of its
subsidiaries, as to which a reserve would be required to be established under
GAAP, that has not been so reserved or that should be disclosed in the
Registration Statement that has not been so disclosed, except for any such
deficiency, assessment, charge or levy which would not, singly or in the
aggregate, have a Material Adverse Effect.
12
(gg) No Transfer
Taxes. There are no transfer taxes or other similar fees or
charges under federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of
this Agreement or the issuance by the Company or the sale by the Company of the
Shares.
(hh) Stabilization.
Neither the Company nor any of its affiliates (including any subsidiary) has
taken, nor will the Company or any of its affiliates take, directly or
indirectly, any action which is designed to or which has constituted or which
would be expected to cause or result in stabilization or manipulation of the
price of any security of the Company in connection with the offering of the
Shares in violation of the Exchange Act.
(ii) Listing
Approval. The Common Stock is listed on the Nasdaq Global
Select Stock Market and prior to the Closing Date the Shares will be duly
approved for trading thereon. The Company has not received any
notification of delisting or that the Commission or the Nasdaq Global Select
Stock Market is contemplating initiating delisting procedures of the Common
Stock.
(jj) Material
Contracts. There is no material document of a character
required to be described in the Registration Statement, the General Disclosure
Package or the Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required.
(kk)
Statistical and
Market-Related Data. All statistical or market-related data,
including any industry forecasts, included in the General Disclosure Package and
the Prospectus are based on or derived from industry publications and sources
that the Company reasonably and in good faith believes to be reliable and
accurate, and the Company has obtained the written consent to the use of such
data from such sources, to the extent required, and no such sources are or were
at any time under the Company’s control.
(ll) Distributions by
Subsidiaries. No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s property or assets to the
Company or any other subsidiary of the Company.
(mm)
Related Party
Transactions. No relationship, direct or indirect, exists
between or among the Company and its subsidiaries, on the one hand, and the
directors, officers, shareholders, customers or suppliers of the Company and its
subsidiaries, on the other hand, that is required to be described in the
Registration Statement, the General Disclosure Package or the Prospectus which
is not so described.
(nn) FINRA
Disclosure. At the time of effectiveness of the Registration
Statement, the Company was eligible to use Form S-3 pursuant to the standards
for that Form in effect prior to October 21, 1992. Neither the
Company nor, to the Company’s knowledge, the Company’s officers, directors,
shareholders or any of its affiliates (within the meaning of Conduct Rule
2720(f)(1)) of the Financial Industry Regulatory Authority, Inc. (“FINRA”) directly or
indirectly controls, is controlled by, or is under common control with, or is an
associated person (within the meaning of Article I, Section 1(dd) of the By-laws
of FINRA) of, any member firm of FINRA and, to the Company’s knowledge, no
Underwriter has a conflict of interest (within the meaning of Conduct Rule
2720(f)(5) of FINRA) with respect to the Offering.
13
(oo) Margin Securities.
Neither the Company nor any of its subsidiaries own any “margin securities” as
that term is defined in Regulation U of the Board of Governors of the Federal
Reserve System (the “Federal Reserve
Board”), and none of the proceeds of the sale of the Shares will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry any margin security or for any other
purpose which might cause any of the Shares to be considered a “purpose credit”
within the meanings of Regulation T, U or X of the Federal Reserve
Board.
(pp) Commission
Agreements. Except as disclosed in the General Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would give rise to a
valid claim against the Company or the Underwriters for a brokerage commission,
finder’s fee or like payment in connection with the offering and sale of the
Shares or any transaction contemplated by this Agreement, the General Disclosure
Package or the Prospectus.
(qq) Certain Disclosures.
The statements set forth in the General Disclosure Package and the Prospectus
under the captions “Risk Factors — Anti-takeover provisions could adversely
affect our stockholders,” “Description of Capital Stock,” “Plan of Distribution”
and “Underwriting,” and in the Registration Statement under Item 15, insofar as
they purport to describe the provisions of the laws, statutes and documents
referred to therein, are accurate, complete and fair.
(rr) Company
Websites. None of the information on (or hyperlinked from) the
Company’s website at xxx.xxxxx.xxx includes or constitutes a “free writing
prospectus” as defined in Rule 405 under the Securities Act, and the Company
does not maintain or support any websites other than
xxx.xxxxx.xxx xxx.xxxxxxxxx.xxx and xxx.xxxxx.xxx.
(ss) Anti-Money Laundering
Laws. The operations of the Company and its subsidiaries are and have
been conducted at all times in material compliance with all applicable financial
recordkeeping and reporting requirements, including those of the Bank Secrecy
Act, as amended by Title III of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of
jurisdictions where the Company and its subsidiaries conduct business, the rules
and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Anti-Money Laundering
Laws”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Anti-Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
14
(tt) Compliance with
Sanctions. (i) The Company represents that neither the Company
nor any of its subsidiaries nor any director, officer, employee, agent,
affiliate or representative of the Company or any of its subsidiaries, is an
individual or entity (“Person”) that is, or
is owned or controlled by a Person that is (A) the subject of any sanctions
administered or enforced by the U.S. Department of Treasury’s Office of Foreign
Assets Control (“OFAC”) (collectively,
“Sanctions”),
or (B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The
Company represents and covenants that neither it nor any of its subsidiaries
will, directly or indirectly, use the proceeds of the Offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other Person (A) to fund or facilitate any activities or
business of or with any Person or in any country or territory that, at the time
of such funding or facilitation, is the subject of Sanctions, or (B) in any
other manner that will result in a violation of Sanctions by any Person
(including any Person participating in the Offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The
Company represents and covenants that for the past five years, neither it nor
any of its subsidiaries has knowingly engaged in, is now knowingly engaged in,
or will engage in, any dealings or transactions with any Person, or in any
country or territory, that at the time of the dealing or transaction is or was
the subject of Sanctions.
(uu) Foreign Corrupt Practices
Act. Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee, affiliate
or other person acting on behalf of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that would result in a
material violation by such persons of the Foreign Corrupt Practices Act of 1977,
as amended, and the rules and regulations thereunder (the “FCPA”), including,
without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of money, or other property, gift, promise
to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party
or official thereof or any candidate for foreign political office, in
contravention of the FCPA, and the Company and, to the knowledge of the Company,
its affiliates have conducted their businesses in material compliance with the
FCPA.
(vv) Compliance with Applicable
Laws. Other than as set forth in the General Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries is in violation or
default of any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency or other governmental body having
jurisdiction over the Company or any such subsidiary or any of its properties,
as applicable, except for such violations or defaults which would not, singly or
in the aggregate, have a Material Adverse Effect.
15
2.
AGREEMENTS
TO SELL AND PURCHASE. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from such Seller at a price of
$9.1665 per share (the “Purchase Price”) the
number of Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto.
On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to sell to the
Underwriters the Additional Shares, and the Underwriters shall have the right to
purchase, severally and not jointly, up to 450,000 Additional Shares at the
Purchase Price. The Manager may exercise this right on behalf of the
Underwriters in whole or from time to time in part by giving written notice not
later than 30 days after the date of this Agreement, provided that if such date
falls on a day that is not a business day, this right will expire on the next
succeeding business day. Any exercise notice shall specify the number
of Additional Shares to be purchased by the Underwriters and the date on which
such Additional Shares are to be purchased. Each purchase date must
be at least one business day after the written notice is given and may not be
earlier than the closing date for the Firm Shares nor later than ten business
days after the date of such notice. Additional Shares may be
purchased as provided in the preamble hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm
Shares. On each day, if any, that Additional Shares are to be
purchased (an “Option
Closing Date”), each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Additional Shares to be purchased on such Option Closing
Date as the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm
Shares.
3.
TERMS OF
PUBLIC OFFERING. The Company is advised by the Manager that the
Underwriters propose to make a public offering of the Shares as soon after this
Agreement has become effective as in your judgment is advisable. The
Company is further advised by the Manager that the Shares are to be offered to
the public initially at a price of $9.70 per share (the “Public Offering
Price”) and to certain dealers selected by the Manager at a price that
represents a concession not in excess of $0.29350 per share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $0.10 per share, to any Underwriter or
to certain other dealers.
4.
PAYMENT
AND DELIVERY. Payment for the Firm Shares to be sold by the Company shall
be made to the Company in federal or other funds immediately available in New
York City against delivery of such Firm Shares to the Manager for the respective
accounts of the several Underwriters at 10:00 a.m., New York City time, on
December 22, 2009, or at such other time on the same or such other date, not
later than five (5) business days after December 22, 2009, as shall be
designated in writing by you. The time and date of such payment are
hereinafter referred to as the “Initial Closing Date.” The Initial
Closing Date and the Option Closing Date are hereinafter sometimes collectively
referred to as a “Closing Date.”
16
Payment
for any Additional Shares shall be made to the Company in federal or other funds
immediately available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the corresponding
notice described in this Section 4 or at such
other time on the same or on such other date, in any event not later than ten
(10) business days after the expiration of the Underwriters’ option to purchase
the Additional Shares described in Section 2, as shall
be designated in writing by the Manager.
The Firm
Shares and Additional Shares shall be registered in such names and in such
denominations as the Manager shall request in writing not later than one full
business day prior to each Closing Date. The Firm Shares and
Additional Shares shall be delivered to the Manager on the Closing Date for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor. Time shall be of the
essence, and delivery of the Shares at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each Underwriter
hereunder. The Company shall deliver the Shares through the
facilities of the Depository Trust Company unless the Manager shall otherwise
instruct.
5.
CONDITIONS
TO THE UNDERWRITERS’ OBLIGATIONS. The obligations of the Company to sell
the Shares to the Underwriters and the several obligations of the Underwriters
to purchase and pay for the Shares on each Closing Date are subject to the
accuracy, when made and as of the Applicable Time and on each Closing Date, of
the representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder and to the following
further conditions:
(a) No
stop order suspending the effectiveness of the Registration Statement or any
part thereof, preventing or suspending the use of any Base Prospectus, any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or
any part thereof shall have been issued and no proceedings for that purpose or
pursuant to Section 8A under the Securities Act shall have been initiated or
threatened by the Commission, and all requests for additional information on the
part of the Commission (to be included or incorporated by reference in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the reasonable satisfaction of the Manager; the Rule 462(b) Registration
Statement, if any, each Issuer Free Writing Prospectus, if any, and the
Prospectus shall have been filed with the Commission within the applicable time
period prescribed for such filing by, and in compliance with, the Rules and
Regulations and in accordance with Section 6(a), and the
Rule 462(b) Registration Statement, if any, shall have become effective
immediately upon its filing with the Commission.
(b) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock
Exchange or Nasdaq Global Select Stock Market, or trading in any securities of
the Company on any exchange or in the over-the-counter market, shall have been
suspended or materially limited, or minimum or maximum prices or maximum range
for prices shall have been established on any such exchange or such market by
the Commission, by such exchange or market or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by federal or state authorities or a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States, (iii) the United States shall have become engaged in
hostilities, or the subject of an act of terrorism, or there shall have been an
outbreak of or escalation in hostilities involving the United States, or there
shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of the Manager, impracticable or
inadvisable to proceed with the sale or delivery of the Shares on the terms and
in the manner contemplated in the Registration Statement, the General Disclosure
Package and the Prospectus.
17
(c) (i) Since
the date of the latest audited financial statements included in the General
Disclosure Package or the Prospectus or incorporated by reference in the General
Disclosure Package or the Prospectus as of the date hereof, neither the Company
nor any of its subsidiaries shall have sustained any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree other than as set forth in the General Disclosure Package and
the Prospectus, (ii) there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries and (iii) there
shall not have occurred any change, or any development involving a prospective
change, in or affecting the business, financial position, management,
properties, assets, results of operation, shareholders’ equity, condition
(financial or otherwise) or prospects of the Company and its subsidiaries, taken
as a whole, from that set forth in the General Disclosure Package and the
Prospectus as of the date of this Agreement the effect of which, in any such
case described in clause (i), (ii) or (iii) of this Section 5(c), is, in
the judgment of the Manager, so material and adverse as to make it, in your
judgment, impracticable or inadvisable to market the Shares on the terms and in
the manner contemplated in the Registration Statement, the General Disclosure
Package and the Prospectus.
(d) The
Underwriters shall have received on each Closing Date a certificate, dated as of
such Closing Date and signed by the Chief Executive Officer and Chief Financial
Officer of the Company, to the effect set forth in Sections 5(a), (b) and (c) above and to the
effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of each Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before each Closing
Date.
(e) (i) The
Underwriters shall have received on each Closing Date an opinion of Xxxxxxxx
& Xxxxxxxx LLP, outside counsel for the Company, dated as of such Closing
Date, to the effect set forth in Exhibit A-1 hereto,
and an opinion of Xxxx X. Xxxxxx, Executive Vice President, Acting Chief
Financial Officer and General Counsel of the Company, dated as of such Closing
Date, to the effect set forth in Exhibit A-2
hereto.
(ii) In
addition, such counsel shall state that nothing has come to the attention of
such counsel that causes such counsel to believe that (A) the Registration
Statement (except for the financial statements and financial schedules and other
financial data included or incorporated by reference therein, as to which such
counsel need not express any belief) at the time the Registration Statement
became effective contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) the General Disclosure Package (except
for the financial statements and financial schedules and other financial data
included or incorporated by reference therein, as to which such counsel need not
express any belief) at the Applicable Time contained any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (C) the Prospectus (except for the financial
statements and financial schedules and other financial data included or
incorporated by reference therein, as to which such counsel need not express any
belief) as of its date and as of each Closing Date contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
18
(f) The
Underwriters shall have received on each Closing Date an opinion
of Winston & Xxxxxx LLP, counsel for the Underwriters, dated as
of such Closing Date, with respect to such matters as the Manager may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request to enable them to pass upon such matters.
(g) At
the time of execution of this Agreement, the Underwriters shall have received
from each of BDO Xxxxxxx LLP and Armanino XxXxxxx LLP a letter, in form and
substance satisfactory to the Manager, addressed to the Underwriters and dated
the date hereof (A) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X, and (B) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective dates as of
which specified financial information is given in the General Disclosure Package
and the Prospectus, as of a date not more than two days prior to the date
hereof), the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public
offerings.
(h) With
respect to the letters of each of BDO Xxxxxxx LLP and Armanino XxXxxxx LLP
referred to in Section
5(g) and delivered to the Underwriters concurrently with the execution of
this Agreement (the “initial letter”), the
Company shall have furnished to the Underwriters letters (the “bring-down letter”)
from each of such accountants, addressed to the Underwriters and dated as of
each Closing Date, (A) confirming that they are independent public accountants
with the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X, (B) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the General Disclosure
Package and the Prospectus, as of a date not more than two days prior to the
date of the bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the initial
letter and (C) confirming in all material respects the conclusions and findings
set forth in the initial letter.
(i) The
“lock-up” agreements, each substantially in the form of Exhibit B hereto,
between the Manager and the directors and officers of the Company listed on
Schedule III
hereto relating to sales and certain other dispositions of shares of Common
Stock or certain other securities, delivered to the Manager on or before the
date hereof, shall be in full force and effect on each Closing
Date.
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(j) No
Underwriter shall have discovered and disclosed to the Company on or prior to
such Closing Date that the Registration Statement, the Prospectus or the General
Disclosure Package, or any amendment or supplement thereto, contains any untrue
statement of a fact which, in the opinion of counsel for the Underwriters, is
material or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading or that the General Disclosure Package, any
Issuer Free Writing Prospectus, or the Prospectus, or any amendment or
supplement thereto, contains any untrue statement of fact whereby in the opinion
of such counsel is material and is necessary in order to make the statements, in
the light of the circumstances in which they were made, not
misleading.
(k) All
corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Shares, the Registration Statement, the
General Disclosure Package, each Issuer Free Writing Prospectuses and the
Prospectus and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(l)
No action shall have been taken and no law, statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would prevent the issuance or sale of the
Shares or result in a Material Adverse Effect, and no injunction, restraining
order or order of any other nature by any federal or state court of competent
jurisdiction shall have been issued which would prevent the issuance or sale of
the Shares or result in a Material Adverse Effect.
(m)
The Company shall have filed a Notification of Listing of Additional
Shares with the Nasdaq Global Select Stock Market for the listing of the
Shares.
(n) The
Underwriters shall have received clearance from FINRA, if applicable, as to the
amount of compensation allowable or payable to the Underwriters as described in
the General Disclosure Package.
(o)
Prior to each Closing Date, the Company shall have furnished to the
Underwriters such further information, opinions, certificates, letters or
documents as the Manager shall have reasonably requested.
The
several obligations of the Underwriters to purchase Additional Shares hereunder
are subject to the delivery to you on the applicable Option Closing Date of such
additional documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares to be sold on such Option Closing Date and other matters related to the
issuance of such Additional Shares.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to the Manager
and counsel to the Underwriters.
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6. COVENANTS
OF THE COMPANY. The Company covenants and agrees with the
Underwriters as follows:
(a) Subject
to the Rules and Regulations, to prepare the Rule 462(b) Registration Statement,
if necessary, in a form reasonably approved by the Manager, and file such Rule
462(b) Registration Statement with the Commission on the date hereof; to prepare
the Prospectus in a form reasonably approved by the Manager containing
information previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rules 430A, 430B and 430C of the Rules and Regulations
and to file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations
not later than the second (2nd) business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may be
required by the Rules and Regulations; to notify the Manager promptly of the
Company’s intention to file or prepare any supplement or amendment to any
Registration Statement or to the Prospectus in connection with this Offering and
to provide a draft of any such amendment or supplement to the Registration
Statement, the General Disclosure Package or to the Prospectus to which the
Manager shall reasonably object by notice to the Company after a reasonable
period to review; to advise the Manager, promptly after it receives notice
thereof, of the time when any amendment to any Registration Statement has been
filed in connection with the Offering or becomes effective or any supplement to
the General Disclosure Package or the Prospectus or any amended Prospectus has
been filed and to furnish the Manager copies thereof; to file within the time
periods prescribed by the Exchange Act, including any extension thereof, all
material required to be filed by the Company with the Commission pursuant to
Rule 433(d) or Rule 163(b)(2) of the Rules and Regulations, as the case may be;
to file within the time periods prescribed by the Exchange Act, including any
extension thereof all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) of the Rules and Regulations) is required
in connection with the offering or sale of the Shares; to advise the Manager,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, of
the suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose or pursuant to Section 8A, or of any request by the Commission for the
amending or supplementing of the Registration Statement, the General Disclosure
Package or the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus or suspending any such qualification, and promptly to use its best
efforts to obtain the withdrawal of such order.
(b) The
Company represents and agrees that it has not made, and unless it obtains the
prior consent of the Manager, it will not make, any offer relating to the Shares
that would constitute a “free writing prospectus” as defined in Rule 405 of the
Rules and Regulations (each, a “Permitted Free Writing
Prospectus”); provided, that the
prior written consent of the Manager hereto shall be deemed to have been given
in respect of the Issuer Free Writing Prospectus(es) included in Schedule II
hereto. The Company represents that it has treated and agrees that it
will treat each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, comply with the requirements of Rules 164 and 433 of the Rules and
Regulations applicable to any Issuer Free Writing Prospectus, including the
requirements relating to timely filing with the Commission, legending and record
keeping and will not take any action that would result in the Underwriters or
the Company being required to file with the Commission pursuant to Rule 433(d)
of the Rules and Regulations a free writing prospectus prepared by or on behalf
of the Underwriters that the Underwriters otherwise would not have been required
to file thereunder.
21
(c) If
at any time when a Prospectus relating to the Shares is required to be delivered
under the Securities Act, any event occurs or condition exists as a result of
which the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, or the Registration Statement, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading,
or if for any other reason it is necessary at any time to amend or supplement
any Registration Statement or the Prospectus to comply with the Securities Act
or the Exchange Act, the Company will promptly notify the Manager, and upon the
Manager’s request, the Company will promptly prepare and file with the
Commission, at the Company’s expense, an amendment to the Registration Statement
or an amendment or supplement to the Prospectus that corrects such statement or
omission or effects such compliance and will deliver to the Underwriters,
without charge, such number of copies thereof as the Underwriters may reasonably
request. The Company consents to the use of the Prospectus or any amendment or
supplement thereto by the Underwriters.
(d) If
the General Disclosure Package is being used to solicit offers to buy the Shares
at a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur as a result of which, in the judgment of the Company or in
the reasonable opinion of the Manager, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or to make the statements therein not conflict with the information
contained or incorporated by reference in the Registration Statement then on
file and not superseded or modified, or if it is necessary at any time to amend
or supplement the General Disclosure Package to comply with any law, the Company
promptly will either (i) prepare, file with the Commission (if required) and
furnish to the Underwriters and any dealers an appropriate amendment or
supplement to the General Disclosure Package or (ii) prepare and file with the
Commission an appropriate filing under the Exchange Act which shall be
incorporated by reference in the General Disclosure Package so that the General
Disclosure Package as so amended or supplemented will not, in the light of the
circumstances under which they were made, be misleading or conflict with the
Registration Statement then on file, or so that the General Disclosure Package
will comply with law.
22
(e) If
at any time following issuance of an Issuer Free Writing Prospectus in
connection with the Offering there occurred or occurs an event or development as
a result of which such Issuer Free Writing Prospectus conflicted or will
conflict with the information contained in the Registration Statement, Pricing
Prospectus or Prospectus, including any document incorporated by reference
therein and any prospectus supplement deemed to be a part thereof and not
superseded or modified or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, the
Company has promptly notified or will promptly notify the Underwriters (and the
Underwriters agree to cease any such use promptly after such notification) so
that any use of the Issuer Free Writing Prospectus may cease until it is amended
or supplemented and has promptly amended or will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing Prospectus in
reliance upon, and in conformity with, written information furnished to the
Company by the Underwriters specifically for inclusion therein, which
information the parties hereto agree is limited to the Underwriters’ Information
(as defined in Section
17).
(f) To
the extent not available on the Commission’s XXXXX system or any successor
system, to furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(g) To
the extent not available on the Commission’s XXXXX system or any successor
system, to deliver promptly to the Underwriters in New York, New York and
Chicago, Illinois (or such other location reasonably requested by the
Underwriters) such number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration Statement as
originally filed with the Commission (in each case excluding exhibits), (ii)
each Preliminary Prospectus (if any), (iii) any Issuer Free Writing Prospectus,
(iv) the Prospectus (the delivery of the documents referred to in clauses (i),
(ii), (iii) and (iv) of this paragraph (g) to be made not later than 10:00 a.m.,
New York time, on the business day following the execution and delivery of this
Agreement), (v) conformed copies of any amendment to the Registration Statement
(excluding exhibits), (vi) any amendment or supplement to the General Disclosure
Package or the Prospectus (the delivery of the documents referred to in clauses
(v) and (vi) of this paragraph (g) to be made not later than 10:00 a.m., New
York City time, on the business day following the date of such amendment or
supplement) and (vii) any document incorporated by reference in the General
Disclosure Package or the Prospectus (excluding exhibits thereto) (the delivery
of the documents referred to in clause (vi) of this paragraph (g) to be made not
later than 10:00 a.m., New York City time, on the business day following the
date of such document).
(h) To
make generally available to its shareholders as soon as practicable, but in any
event not later than eighteen (18) months after the effective date of each
Registration Statement (as defined in Rule 158(c) of the Rules and Regulations),
an earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158); and to furnish
to its shareholders as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, shareholders’
equity and cash flows of the Company and its consolidated subsidiaries certified
by independent public accountants) and after each of the first three fiscal
quarters of each fiscal year (beginning with the first fiscal quarter after the
effective date of such Registration Statement), consolidated summary financial
information of the Company and its subsidiaries for such quarter in reasonable
detail.
23
(i) To
take promptly from time to time such actions as the Manager may reasonably
request to qualify the Shares for offering and sale under the securities or blue
sky laws of such jurisdictions (domestic or foreign) as the Manager may
designate and to continue such qualifications in effect, and to comply with such
laws, for so long as required to permit the offer and sale of Shares in such
jurisdictions; provided, that the Company and
its subsidiaries shall not be obligated to qualify as foreign corporations in
any jurisdiction in which they are not so qualified or to file a general consent
to service of process in any jurisdiction.
(j) During
the period of five years from the date hereof, to the extent not available on
the Commission’s XXXXX system or any successor system, to deliver to the
Manager, (i) upon request, copies of all reports or other communications
furnished generally to shareholders, and (ii) upon request, copies of any
reports and financial statements furnished or filed with the Commission or any
national securities exchange or automatic quotation system on which the Common
Stock is listed or quoted, including the Nasdaq Global Select Stock
Market.
(k) Without
the prior written consent of the Manager, to not, during the period ending 90
days after the date of the Prospectus (the “Lock-Up Period”), (i)
offer, sell, assign, transfer, pledge, contract to sell, grant any option, or
otherwise dispose of, any shares of Common Stock or securities convertible into
or exercisable or exchangeable for Common Stock (including, without limitation,
shares of Common Stock or any such securities which may be deemed to be
beneficially owned by the Company in accordance with the rules and regulations
promulgated under the Securities Act (such shares of securities, the “Beneficially Owned
Shares”), (ii) enter into any swap, hedge or other agreement or
arrangement that transfers, in whole or in part, the economic risk of ownership
of any Beneficially Owned Shares, or (iii) engage in any short selling of any
Beneficially Owned Shares. Notwithstanding the foregoing, if (a) the
Company issues an earnings release or material news or a material event relating
to the Company occurs during the last 17 days of the Lock-Up Period, or (b)
prior to the expiration of the Lock-Up Period, the Company announces that it
will release earnings results during the 16-day period beginning on the last day
of the Lock-Up Period, the restrictions imposed by this Section 6(k) shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event. The Company shall promptly notify the Manager of any
earnings release, news or event that may give rise to an extension of the
initial Lock-Up Period.
(l) To
supply the Manager with copies of all correspondence to and from, and all
documents issued to and by, the Commission in connection with the registration
of the Shares under the Securities Act or the Registration Statement, any
Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto
or document incorporated by reference therein.
(m) Prior
to the Closing Date (except for routine marketing communications in the ordinary
course of business and consistent with the past practices of the Company and of
which the Manager is notified in advance), not to issue any press release or
other communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or earnings,
business affairs or business, without the prior written consent of the Manager,
unless in the judgment of the Company and its counsel, and after notification to
the Manager, such press release or communication is required by law or
applicable stock exchange rules.
24
(n) Until
the Manager shall have notified the Company of the completion of the offering of
the Shares, that the Company will not, and will cause its affiliated purchasers
(as defined in Regulation M under the Exchange Act) not to, either alone or with
one or more other persons, bid for or purchase, for any account in which it or
any of its affiliated purchasers has a beneficial interest, any Shares, or
attempt to induce any person to purchase any Shares; and not to, and to cause
its affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price of the
Shares.
(o) Not
to take any action prior to the Closing Date which would require the Prospectus
to be amended or supplemented pursuant to Section 8 without the
prior written consent of the Manager.
(p) To
apply the net proceeds from the sale of the Shares as set forth in the General
Disclosure Package and the Prospectus under the heading “Use of
Proceeds.”
(q) To
use its reasonable best efforts to list, subject to notice of issuance, effect
and maintain the quotation and listing of the Common Stock on the Nasdaq Global
Select Stock Market.
(r) To
use its commercially reasonable efforts to do and perform all things required to
be done or performed under this Agreement by the Company prior to the Closing
Date and to satisfy all conditions precedent to the delivery of the
Shares.
7. EXPENSES. Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company agrees to pay or cause to be paid, or
reimburse if paid by the Underwriters, all expenses incident to the performance
of their obligations under this Agreement, including, without limitation: (a)
the fees, disbursements and expenses of the Company’s counsel and the Company’s
accountants in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, the Preliminary
Prospectus, the General Disclosure Package, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including all printing
costs associated therewith and the mailing and delivering of copies thereof to
the Underwriters and dealers in the quantities specified by the Underwriters,
(b) all costs and expenses related to the transfer and delivery of the Shares to
the Underwriters, including any transfer or other taxes payable thereon, (c) the
cost of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(a)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky or legal investment memorandum, (d) all filing fees
and the reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the offering of the
Shares by FINRA, (e) all costs and expenses incident to listing the Shares on
the Nasdaq Global Select Stock Market, (f) the cost of printing certificates
representing the Shares, (g) the costs and charges of any transfer agent,
registrar or depositary, (h) the costs and expenses of the Company relating to
investor presentations on any “road show” undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, expenses
associated with the preparation or dissemination of any electronic road show,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, (i) the document production charges and expenses associated with printing
this Agreement and any other documents in connection with the purchase, sale and
delivery of the Shares, (j) the costs and expenses (including, without
limitation, any damages or other amounts payable in connection with legal or
contractual liability) associated with the reforming of any contracts for sale
of the Shares made by the Underwriters caused by a breach of any of the
representations contained in Section 1, and (k)
all other costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this Section
7.
25
8.
INDEMNITY
AND CONTRIBUTION.
(a) The
Company shall indemnify and hold harmless the Underwriters, their respective
directors and officers and each person, if any, who controls the Underwriters
within the meaning of Section 15 of the Securities Act of or Section 20 of the
Exchange Act (collectively, the “Underwriter Indemnified
Parties,” and each an “Underwriter Indemnified
Party”) against any loss, claim, damage, expense or liability whatsoever
(or any action, investigation or proceeding in respect thereof) to which such
Underwriter Indemnified Party may become subject, insofar as such loss, claim,
damage, expense, liability, action, investigation or proceeding arises out of or
is based upon (A) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to
Rule 433(d) of the Rules and Regulations, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto or document incorporated
by reference therein, or (B) the omission or alleged omission to state in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer
information” filed or required to be filed pursuant to Rule 433(d) of the Rules
and Regulations, any Registration Statement or the Prospectus, or in any
amendment or supplement thereto or document incorporated by reference therein, a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse the Underwriter Indemnified Party
promptly upon demand for any legal fees or other expenses reasonably incurred by
that Underwriter Indemnified Party in connection with investigating, or
preparing to defend, or defending against, appearing as a third party witness in
respect of, responding to a subpoena or governmental inquiry relating to, or
otherwise incurred in connection with, any such loss, claim, damage, expense,
liability, action, investigation or proceeding, as such fees and expenses are
incurred and whether or not such Underwriter Indemnified Party is a party to any
action, investigation or proceeding; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, expense or liability arises out of or is based upon an untrue
statement or alleged untrue statement in, or omission or alleged omission from
any Preliminary Prospectus, any Registration Statement or the Prospectus, or any
such amendment or supplement thereto, or any Issuer Free Writing Prospectus made
in reliance upon and in conformity with written information furnished to the
Company by the Underwriters specifically for use therein, which information the
parties hereto agree is limited to the Underwriters’ Information (as defined in
Section 17).
This indemnity agreement is not exclusive and will be in addition to any
liability which the Company might otherwise have and shall not limit any rights
or remedies which may otherwise be available at law or in equity to each
Underwriter Indemnified Party.
26
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, the directors and officers of the Company who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act
(collectively, the “Company Indemnified
Parties,” and each a “Company Indemnified
Party”) against any loss, claim, damage, expense or liability whatsoever
(or any action, investigation or proceeding in respect thereof) to which such
Company Indemnified Party may become subject insofar as such loss, claim,
damage, expense, liability, action, investigation or proceeding arises out of or
is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to
Rule 433(d) of the Rules and Regulations, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to
Rule 433(d) of the Rules and Regulations, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, a material fact required
to be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the 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 the Underwriters
specifically for use therein, which information the parties hereto agree is
limited to the Underwriters’ Information (as defined in Section 17), and
shall reimburse the Company Indemnified Party promptly upon demand for any legal
or other expenses reasonably incurred by such Company Indemnified Party in
connection with investigating or preparing to defend or defending against,
appearing as a third party witness in connection with or responding to a
subpoena or governmental inquiry relating to any such loss, claim, damage,
liability, action, investigation or proceeding, as such fees and expenses are
incurred. This indemnity agreement is not exclusive and will be in
addition to any liability which the Underwriters might otherwise have and shall
not limit any rights or remedies which may otherwise be available at law or in
equity to any Company Indemnified Party.
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(c) Promptly
after receipt by an indemnified party under this Section 8 of notice
of the commencement of any action (including any governmental investigation),
the indemnified party shall, if a claim in respect thereof may be made against
an indemnifying party under this Section 8, notify
such indemnifying party in writing of the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 8 except to
the extent it was unaware of the action to which the notice would have related
and has been materially prejudiced by such failure; and, provided, further, that the
failure to notify an indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8. If any
such action shall be brought against an indemnified party, and it shall notify
the indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense of such action with
counsel reasonably satisfactory to the indemnified party (which counsel shall
not, except with the written consent of the indemnified party, be counsel to the
indemnified party). After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such action, except as provided
herein, the indemnifying party shall not be liable to the indemnified party
under Section 8
for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense of such action other than reasonable costs of
investigation; provided, however, that any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense of such action but the fees and
expenses of such counsel (other than reasonable costs of investigation) shall be
at the expense of such indemnified party unless (i) the employment thereof has
been specifically authorized in writing by the Company in the case of a claim
for indemnification under Section 8(a) or the
Manager in the case of a claim for indemnification under Section 8(b), (ii)
such indemnified party shall have been advised by its counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party within a reasonable
period of time after notice of the commencement of the action or the
indemnifying party does not diligently defend the action after assumption of the
defense, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of (or, in the case of a failure to diligently defend the action
after assumption of the defense, to continue to defend) such action on behalf of
such indemnified party and the indemnifying party shall be responsible for legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense of such action; provided, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties (in addition to any local counsel), which
firm shall be designated in writing by the Manager if the indemnified parties
under this Section
8 consist of any Underwriter Indemnified Party or by the Company if the
indemnified parties under this Section 8 consist of
any Company Indemnified Parties. Subject to this Section 8(c), the
amount payable by an indemnifying party under Section 8 shall
include, but not be limited to, (x) reasonable legal fees and expenses of
counsel to the indemnified party (payable as incurred) and any other expenses in
investigating, or preparing to defend or defending against, appearing as a third
party witness in respect of, responding to a subpoena or governmental inquiry
relating to, or otherwise incurred in connection with, any action,
investigation, proceeding or claim, and (y) all amounts paid in settlement of
any of the foregoing. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of judgment with respect to any pending or threatened action or any claim
whatsoever, in respect of which indemnification or contribution could be sought
under this Section
8 (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party in form and substance reasonably
satisfactory to such indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
Subject to the provisions of the following sentence, no indemnifying party shall
be liable for settlement of any pending or threatened action or any claim
whatsoever that is effected without its written consent (which consent shall not
be unreasonably withheld or delayed), but if settled with its written consent,
if its consent has been unreasonably withheld or delayed or if there be a
judgment for the plaintiff in any such matter, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. In addition, if at any time
an indemnified party shall have requested that an indemnifying party reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated
herein effected without its written consent if (i) such settlement is entered
into more than thirty (30) days after receipt by such indemnifying party of the
request for reimbursement, and (ii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
28
(d) If
the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section 8(a) or Section 8(b), then
each indemnifying party shall contribute to the amount paid, payable or
otherwise incurred by such indemnified party as a result of such loss, claim,
damage, expense or liability (or any action, investigation or proceeding in
respect thereof), as incurred, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares, or (ii) if the
allocation provided by clause (i) of this Section 8(d) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) of this Section 8(d) but also
the relative fault of the Company on the one hand and the Underwriters on the
other with respect to the statements, omissions, acts or failures to act which
resulted in such loss, claim, damage, expense or liability (or any action,
investigation or proceeding in respect thereof) 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 with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters in connection with the Offering, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement, omission, act or
failure to act; provided that the parties hereto
agree that the written information furnished to the Company by the Underwriters
for use in any Preliminary Prospectus, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, consists solely of the
Underwriters’ Information as defined in Section
17. The Underwriters’ obligations in this Section 8(d) to
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 contributions pursuant to this Section 8(d) were to
be determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage,
expense, liability, action, investigation or proceeding referred to above in
this Section
8(d) shall be deemed to include, without limitation, for purposes of this
Section 8(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, preparing to defend or defending against,
appearing as a third party witness in respect of, responding to a subpoena or
governmental inquiry relating to, or otherwise incurred in connection with, any
such loss, claim, damage, expense, liability, action, investigation or
proceeding. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the total
discounts and commissions received by such Underwriter in connection with the
Offering, less the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue
statement, omission or alleged omission, act or alleged act or failure to act or
alleged failure to act. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
29
(e) The
indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter Indemnified Party or any Company Indemnified Party and
(iii) acceptance of and payment for any of the Shares. A successor to
any Underwriter Indemnified Party or Company Indemnified Party shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements in
this Section
8.
9.
TERMINATION. The
obligations of the Underwriters hereunder may be terminated by the Underwriters,
in their absolute discretion by notice given by the Manager to the Company prior
to delivery of and payment for the Shares if, prior to that time, any of the
events described in Sections 5(b) or
(c) have
occurred or if the Underwriters shall decline to purchase the Shares for any
reason permitted under this Agreement.
10.
EFFECTIVENESS;
DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties
hereto.
(a) If,
on the Initial Closing Date or an Option Closing Date, as the case may be, any
Underwriter shall default in its obligation to purchase the Shares which is has
agreed to purchase hereunder, you, as the Manager of the Underwriters, may in
your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. In the event that, within
36 hours after such default by any Underwriter, you notify the Company that you
have so arranged for the purchase of such Shares, you or the Company shall have
the right to postpone the time of delivery for a period of not more than seven
(7) days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed on Schedule I hereto
that, pursuant to this Section 10, purchases
Shares that a defaulting Underwriter agreed but failed to
purchase.
30
(b) If,
after giving effect to any arrangements for the purchase of the Shares of a
defaulting Underwriter or Underwriters by you as provided in paragraph (a)
above, the aggregate number of such Shares which remains unpurchased does not
exceed one-tenth of the aggregate number of all the Shares to be purchased on
such date, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the number of shares which such Underwriter agreed to
purchase hereunder on such date and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If,
after giving effect to any arrangements for the purchase of the Shares of a
defaulting Underwriter or Underwriters by you as provided in paragraph (a)
above, the aggregate number of such Shares which remains unpurchased exceeds
one-tenth of the aggregate number of all the Shares to be purchased on such
date, or if the Company shall not exercise the right described in paragraph (b)
above to require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable to the extent set forth in Section 7 and 8.
If, on an
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option
Closing Date or (ii) purchase not less than the number of Additional Shares that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
11.
ENTIRE
AGREEMENT. This Agreement represents the entire agreement between the
Company, on the one hand, and the Underwriters, on the other, with respect to
the preparation of the Preliminary Prospectus, the General Disclosure Package,
the Prospectus, the conduct of the Offering, and the purchase and sale of the
Shares.
12.
ABSENCE
OF A FIDUCIARY RELATIONSHIP. The Company acknowledges and
agrees that:
(a) the
Underwriters’ responsibility to the Company is solely contractual in nature, the
Underwriters have been retained solely to act as Underwriters in connection with
the Offering and no fiduciary, advisory or agency relationship between the
Company (or any shareholder, affiliate, director, employee or creditor of the
Company), on the one hand, and the Underwriters, on the other, has been created
in respect of any of the transactions contemplated by this Agreement,
irrespective of whether any of the Underwriters or Xxxxxxx Xxxxx & Company,
L.L.C. and their affiliates have advised or are advising the Company on other
matters;
31
(b) the
price of the Shares set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Underwriters, 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) it
has been advised that the Underwriters and their affiliates and Xxxxxxx Xxxxx
& Company, L.L.C. and its affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the Company
and that the Underwriters have no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or agency
relationship;
(d) the
Underwriters have not provided any legal, accounting, regulatory or tax advice
with respect to the transactions contemplated by this Agreement and the Company
has consulted with its own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against
the Underwriters for breach of fiduciary duty or alleged breach of fiduciary
duty and agrees that the Underwriters 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 shareholders, affiliates, directors, employees or creditors of the
Company.
13.
SUCCESSORS;
PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the Underwriters, the Company and their
respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, other than
the persons mentioned in the preceding sentences, any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the Underwriter Indemnified Parties and the
indemnities of the Underwriters shall be for the benefit of the Company
Indemnified Parties. It is understood that the Underwriters’
responsibility to the Company is solely contractual in nature and the
Underwriters do not owe the Company, or any other party, any fiduciary duty as a
result of this Agreement.
14.
SURVIVAL
OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations and warranties
and other statements of the Company and the Underwriters set forth in this
Agreement or made by them pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriters, the Company or any person controlling any of them and shall
survive delivery of and payment for the Shares. Notwithstanding any termination
of this Agreement, including without limitation any termination pursuant to
Section 9, the
indemnity and contribution and reimbursement agreements contained in Section 8 and the
covenants, agreements and representations and warranties set forth in this
Agreement shall not terminate and shall remain in full force and effect at all
times.
32
15. COUNTERPARTS. This
Agreement may be signed in two or more counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
16. APPLICABLE
LAW; AGENT FOR SERVICE; AND JURISDICTION. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York, including without limitation Section 5-1401 of the New York General
Obligations Law. No legal proceeding may be commenced, prosecuted or
continued in any court other than the courts of the State of New York located in
the City and County of New York or in the United States District Court for the
Southern District of New York, which courts shall have jurisdiction over the
adjudication of such matters, and the Company and the Underwriters each hereby
consent to the jurisdiction of such courts and personal service with respect
thereto and hereby irrevocably and unconditionally waive any objection to the
laying of venue of any legal proceeding in such courts, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such legal proceeding brought in any such court has been
brought in an inconvenient forum. The Company and the Underwriters
each hereby consent to personal jurisdiction, service and venue in any such
court in which any legal proceeding arising out of or in any way relating to
this Agreement is brought by any third party against the Company or the
Underwriters. The Company and the Underwriters each hereby waive all
right to trial by jury in any legal proceeding (whether based upon contract,
tort or otherwise) in any way arising out of or relating to this
Agreement. The Company agrees that a final judgment in any such legal
proceeding brought in any such court shall be conclusive and binding upon the
Company and the Underwriters and may be enforced in any other courts in the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
17. UNDERWRITERS’
INFORMATION. The parties
hereto acknowledge and agree that, for all purposes of this Agreement, the
Underwriters’ Information consists solely of (a) the information in the first
table under the caption “Underwriting” in the Prospectus, (b) the information
concerning discounts in the fourth paragraph under the caption “Underwriting” in
the Prospectus and (c) the information in the thirteenth through twentieth
paragraphs under the caption “Underwriting” in the Prospectus.
18. HEADINGS. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of, or to affect the meaning or
interpretation of, this Agreement.
19. PARTIAL
UNENFORCEABILITY. The invalidity
or unenforceability of any section, paragraph, clause or provision of this
Agreement shall not affect the validity or enforceability of any other section,
paragraph, clause or provision hereof. If any section, paragraph,
clause or provision of this Agreement is for any reason determined to be invalid
or unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and
enforceable.
33
20. GENERAL. This
Agreement may be amended or modified, and the observance of any term of this
Agreement may be waived, only by a writing signed by the Company and the
Manager.
21. NOTICES. All
communications hereunder shall be in writing and effective only upon receipt and
if to the Underwriters shall be delivered, mailed or sent to you in care of
Xxxxxxx Xxxxx & Company, L.L.C., 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Syndicate Desk; with a copy to Xxxxxxx Xxxxx &
Company, L.L.C., 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: General Counsel; with a further copy to Winston & Xxxxxx LLP, 00
Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxx; if to
the Company shall be delivered, mailed or sent to Sonic Solutions, 0000 Xxxxxxx
Xxxx., Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx,
President and Chief Executive Officer; with a copy to Xxxxxxxx & Xxxxxxxx
LLP, 1290 Avenue of the Americas, New York, New York 10104-0050,
Attention: Xxxx X. Xxxxxx.
[signature
page follows]
34
If the
foregoing letter is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters in
accordance with its terms.
Very
truly yours,
|
|
SONIC
SOLUTIONS
|
|
By:
|
/s/ Xxxx X.
Xxxxxx
|
Name:
|
Xxxx X. Xxxxxx
|
Title:
|
Executive Vice President, Chief
Financial Officer and General
Counsel
|
The
foregoing Underwriting Agreement
is hereby
confirmed and accepted as
of the
date first above written.
As
Manager of the several
Underwriters
listed on Schedule
I:
XXXXXXX
XXXXX & COMPANY, L.L.C.
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
Authorized
Officer
|
|
By:
|
|
Authorized
Officer
|
SCHEDULE I
SCHEDULE OF
UNDERWRITERS
Underwriter
|
Number of Firm Shares
to be Purchased
|
|||
Xxxxxxx
Xxxxx & Company, L.L.C.
|
2,700,000 | |||
Canaccord
Xxxxx Inc.
|
300,000 | |||
Total
|
3,000,000 |
Schedule
I
SCHEDULE
II
General Use Free Writing
Prospectuses:
None.
Limited Use Free Writing
Prospectuses:
Electronic
roadshow relating to the offering contemplated herein and made available at
xxx.xxxxxxxxxxx.xxx.
Schedule
II
SCHEDULE
III
PARTIES EXECUTING LOCK-UP
AGREEMENTS
1.
|
Xxxxx
X. Xxxxxxx
|
2.
|
Xxxx
X. Xxxxxx
|
3.
|
A.
Xxxx Xxxxxxxx
|
4.
|
Xxxx
Xxx
|
5.
|
Xxxxxx
X. Xxxxx
|
6.
|
Xxxx
X. Xxxxx
|
7.
|
Xxxxxx
X. Xxxxxx
|
8.
|
Xxxxx
X. Xxxxxxxxx
|
9.
|
R.
Xxxxxx Xxxxxxx
|
Schedule
III
EXHIBIT
A-1
Form of Opinion of Counsel
to the Company
[See
Attached]
EXHIBIT
A-2
Form of Opinion of Xxxx X.
Xxxxxx
[See
Attached]
EXHIBIT B
Form of Lock-Up
Agreement
[See
Attached]
Exhibit
B