Illumina, Inc. 3,500,000 Shares of Common Stock Underwriting Agreement
Exhibit 1.1
Illumina, Inc.
3,500,000 Shares of Common Stock
| August 6, 2008 | ||
Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 |
||
Ladies and Gentlemen: |
Illumina, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to Xxxxxxx, Sachs & Co. (the “Underwriter”) an
aggregate of 3,500,000 shares (the “Firm Securities”) and, at the election of the Underwriter, up
to 525,000 additional shares (the “Optional Securities”) of
Common Stock, par value $0.01 per share (“Stock”), of the Company (the Firm Securities and the
Optional Securities that the Underwriter elects to purchase pursuant to Section 2 hereof being
collectively called the “Securities”).
1. The Company represents and warrants to, and agrees with, the Underwriter that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-134012) in
respect of the Securities was filed with the Securities and Exchange Commission (the
“Commission”) on May 11, 2006; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order suspending the
effectiveness of such registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission, and no
notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received
by the Company (the base prospectus filed as part of such registration statement, in the
form in which it has most recently been filed
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with the Commission on or prior to the date
of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration statement, including all exhibits
thereto and any prospectus supplement relating to the Securities that is filed with the
Commission and deemed by virtue of Rule 430B under the Act to be part of such registration
statement, each as amended at the time such part of the registration statement became
effective, are hereinafter collectively called the “Registration Statement”; the Basic
Prospectus, as amended and supplemented immediately prior to the Applicable Time (as
defined in Section 1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, 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 under the Act,
as of the date of such prospectus (or, with respect to the Pricing Prospectus, as of the
Applicable Time); any reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any prospectus supplement relating
to the Securities filed with the Commission pursuant
to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and incorporated by reference therein, in each
case after the date of the Basic Prospectus, such Preliminary Prospectus, or the
Prospectus, as the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration Statement; and
any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the
Securities is hereinafter called an “Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided,
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however, that this representation and warranty
shall not apply to any Excluded Statements (as defined below) or any statements or
omissions made in reliance upon and in conformity with information furnished in writing to
the Company by the Underwriter expressly for use therein; as used herein, “Excluded
Statements” means the ninth through the fourteenth, inclusive, paragraphs of text under the
caption “Underwriting” in the Pricing Prospectus and the Prospectus;
(c) For the purposes of this Agreement, the “Applicable Time” is 5:30 p.m. (Eastern
time) on the date of this Agreement. The Pricing Prospectus, as of the Applicable Time,
did not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus listed on
Schedule I(a) hereto does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus; and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing Prospectus and the
Pricing Information (as defined below), as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty shall not
apply to any Excluded Statements or any statements or omissions made in any Issuer Free
Writing Prospectus, the Registration Statement,
the Pricing Prospectus or the Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter expressly for use
therein; as used herein, “Pricing Information” means the number of Securities offered for
sale pursuant to the Prospectus and the public offering price per Security, in each case as
reflected on the cover page of the Prospectus;
(d) The documents incorporated by reference in the Pricing Prospectus and 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 Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto, 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 Act or the Exchange Act, as
applicable, and the rules and regulations
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of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not apply to any
Excluded Statements or any statements or omissions made in such documents in reliance upon
and in conformity with information furnished in writing to the Company by the Underwriter
expressly for use therein; and no such documents were filed with the Commission since the
Commission’s close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set forth on Schedule
I(c) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder; the Registration Statement does not and will not, as of the
applicable effective date as to each part of the Registration Statement, 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 not misleading; the Prospectus and any
supplement thereto, as of the date it is filed with the Commission, will not include any
untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any Excluded Statements or any statements or
omissions made in the Registration Statement, the Prospectus or any amendments or
supplements thereto in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use therein;
(f) Neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by reference in the
Pricing Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Pricing Prospectus, there has
not been any change in the capital stock (other than upon the issuance and exercise of
options granted pursuant to the Company’s stock option and purchase plans) or long-term
debt of the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
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affecting the general
affairs, management, financial position, stockholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Pricing Prospectus;
(g) The Company and its subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects, in each case except such
as described in the Pricing Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by the Company and its
subsidiaries;
(h) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any
business so as to require such qualification, except where failure to be so qualified
in any such jurisdiction does not and would not have a material adverse effect upon the
assets, business, financial condition or results of operations of the Company and its
subsidiaries or on the consummation of any of the transactions contemplated hereby (a
“Material Adverse Effect”); and each subsidiary of the Company has been duly incorporated
or organized, as the case may be, and is validly existing as a corporation or other entity,
as the case may be, in good standing under the laws of its jurisdiction of incorporation or
organization, as the case may be, except where the failure to be so incorporated, organized
and existing would not have a Material Adverse Effect;
(i) The Company has an authorized capitalization as set forth in the Pricing
Prospectus, and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and conform in all
material respects to the description of the Stock contained in the Pricing Prospectus and
Prospectus; and all of the issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and non-assessable and
(except for directors’ qualifying shares)
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are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(j) The unissued Securities to be issued and sold by the Company to the Underwriter
hereunder have been duly and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued and fully paid and
non-assessable and will conform in all material respects to the description of the
Securities contained in the Prospectus;
(k) (A) Except as would not result in a Material Adverse Effect, the issue and sale of
the Securities and the compliance by the Company with this Agreement and the consummation
by the Company of the transactions herein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject; (B) nor will such action result in (i) any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or (ii) except as
would not result in a Material Adverse Effect, a violation of any statute or any order,
rule or regulation of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and (C) no consent,
approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement except such
as have been obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or Blue Sky laws
or by the Financial Industry Regulatory Authority, Inc. (“FINRA”), in connection with the
purchase and distribution of the Securities by the Underwriter and except as where failure
to obtain them or take such action would not result in a Material Adverse Effect;
(l) Neither the Company nor any of its subsidiaries is (A) in violation of its
Certificate of Incorporation or By-laws or (B) except as does not and would not have a
Material Adverse Effect, in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
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(m) The statements set forth under the caption “Description of Capital Stock” in
Amendment No. 5 to the Company’s Form S-1, filed with the Commission on July 27, 2000 (file
no. 333-33922), which is incorporated by reference into the Pricing Prospectus and
Prospectus, insofar as such statements purport to constitute a summary of the terms of the
Stock are an accurate summary thereof in all material respects; the statements set forth in
the Pricing Prospectus and the Prospectus under the caption “Underwriting”, insofar as they
purport to describe this Agreement, are accurate in all material respects;
(n) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect; and, except as set forth in the Pricing
Prospectus, to the best of the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(o) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an “investment
company”, as such term is defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(p) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at
the time the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing
of the Registration Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the
Company was not an “ineligible issuer” as defined in Rule 405 under the Act;
(q) Ernst & Young LLP, who have certified certain financial statements of the Company
and its subsidiaries and have audited the effectiveness of the Company’s internal control
over financial reporting are
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independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(r) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under 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 generally accepted accounting
principles. As of December 30, 2007, the Company’s internal control over financial
reporting was effective; the Company believes that its internal control over financial
reporting is effective as of the date of this agreement; and the Company is not aware of
any material weaknesses in its internal control over financial reporting;
(s) Since December 30, 2007, there has been 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;
(t) The Company maintains disclosure controls and procedures (as such term is defined
in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange
Act; such disclosure controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known to the Company’s
principal executive officer and principal financial officer by
others within those entities; and such disclosure controls and procedures are effective;
(u) The Company is conducting business in compliance with all applicable statutes,
rules, regulations, standards, guides and orders administered or issued by any governmental
or regulatory authority in the jurisdictions in which it is conducting business, except as
does not and would not have a Material Adverse Effect;
(v) The Company is not in violation of any statute, or any rule, regulation, decision
or order of any governmental agency or body or any court relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances (collectively,
“Environmental Laws”), does not own or operate any real property which to its knowledge is
contaminated with any substance that is subject to any Environmental Laws, is not to its
knowledge liable for any off-site disposal or contamination pursuant to any Environmental
Laws, and is not subject to any claim relating to any Environmental Laws, which violation,
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contamination, liability or claim would have, individually or in the aggregate, a Material
Adverse Effect; and the Company is not aware of any pending investigation which could be
reasonably likely to lead to such a claim; and
(w) Except as described in the Pricing Prospectus, the Company owns or has licenses or
other rights to use any patents, patent licenses, trademarks, trade names, service marks,
service names, copyrights and other proprietary intellectual property rights (collectively,
“Intellectual Property”) necessary to conduct its business in the manner in which it has
been and is contemplated to be conducted as described in the Prospectus; to the Company’s
knowledge, such Intellectual Property is valid, binding and enforceable and does not
conflict with the rights of others, except as described in the Pricing Prospectus and
except for such conflicts as would not have a Material Adverse Effect; the Company or its
assignor has duly and properly filed with the United States Patent and Trademark Office the
pending patent applications referred to in the Prospectus (the “Patent Applications”),
except for immaterial clerical errors or technical defects; the information contained in
the Registration Statement and Prospectus concerning the Patent Applications and
Intellectual Property is accurate in all material respects; and, except as described in the
Pricing Prospectus, the Company has not received any notice from any person of infringement
of or conflict with (and knows of no such infringement of or conflict with) asserted rights
of others with respect to any Intellectual Property or any trade secrets, proprietary
information, inventions, know how, processes and procedures owned or used by or
licensed to the Company which, if determined adversely to the Company, would have,
individually or in the aggregate, a Material Adverse Effect.
2. Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and
sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at a purchase
price per share of $85.20, the Firm Securities and (b) in the event and to the extent that the
Underwriter shall exercise the election to purchase Optional Securities as provided below, the
Company agrees to issue and sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at the purchase price per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Securities as to which such election shall have been exercised.
The Company hereby grants to the Underwriter the right (the “Option”) to purchase at its
election up to 525,000 Optional Securities, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm
Securities, provided that the purchase price per Optional Security shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
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payable on the Firm
Securities but not payable on the Optional Securities; provided, however, that if the Company shall
have effected, before any settlement of the purchase and sale of the Optional Securities, the
two-for-one stock split described in the Pricing Prospectus (the “Proposed Stock Split”), then the
maximum number of Optional Securities that may be purchased by the Underwriter pursuant hereto, and
the purchase price per share of Optional Securities to be paid therefor as set forth in the
paragraph above, shall, in lieu of any adjustment pursuant to the immediately preceding proviso, be
proportionately adjusted as of and from the time the Proposed Stock Split is so effected. Any such
election to purchase Optional Securities may be exercised only by written notice from you to the
Company, given within a period of 30 calendar days after the date of this Agreement, setting forth
the aggregate number of Optional Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless you and the Company otherwise agree in
writing, earlier than three or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Securities, the Underwriter
proposes to offer the Firm Securities for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Securities to be purchased by the Underwriter hereunder, in definitive form, and
in such authorized denominations and registered in such names as the Underwriter may request upon
at least forty-eight hours’ prior notice to the Company shall be delivered by or on behalf of the
Company to the
Underwriter, through the facilities of the Depository Trust Company (“DTC”), for the account
of the Underwriter, against payment by the Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the Company to the Underwriter at
least forty-eight hours in advance. The Company will cause the certificates representing the
Securities to be made available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated
custodian (the “Designated Office”). The time and date of such delivery and payment shall be, with
respect to the Firm Securities, 9:30 a.m., New York City time, on August 12, 2008, or such other
time and date as the Underwriter and the Company may agree upon in writing, and, with respect to
the Optional Securities, 9:30 a.m., New York time, on the date specified by the Underwriter in the
written notice given by the Underwriter of its election to purchase such Optional Securities, or
such other time and date as the Underwriter and the Company may agree upon in writing. Such time
and date for delivery of the Firm Securities is herein called the “First Time of Delivery”, such
time and date for delivery of the Optional Securities, if not the First Time of Delivery, is herein
called the “Second Time of Delivery”, and each such time and date for delivery is herein called a
“Time of Delivery”.
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(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriter pursuant to Section 8(j) hereof, will be
delivered at the offices of Xxxxx & XxXxxxx LLP in New York, NY (the “Closing Location”), and the
Securities will be delivered through DTC, all at such Time of Delivery. A meeting will be held at
the Closing Location on the New York Business Day next preceding such Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this Section 4, “New York
Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York City are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with the Underwriter:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act within the time period required pursuant to Rule 424(b); to make no
further amendment or any supplement to the Registration Statement, the Basic Prospectus or the
Prospectus prior to the last Time of Delivery which reasonably shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to furnish you with copies
thereof; to file, within the time period required by Rule 433(d) under the Act, all other
material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the
Act; to file, within the time period required pursuant to the Exchange Act, all reports and any
definitive proxy or information statements required to be filed by the Company with the Commission
pursuant to Section 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) under the Act) is required in connection with the offering or sale of the
Securities; to advise you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus in respect of the Securities, of any notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or 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 or other prospectus or suspending any such
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qualification, to promptly use its best
efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice
of objection, promptly to take such steps including, without limitation, amending the Registration
Statement or filing a new registration statement, at its own expense, as may be necessary to permit
offers and sales of the Securities by the Underwriter in the manner contemplated hereby, by the
Pricing Prospectus and by the Prospectus (references herein to the Registration Statement shall
include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
reasonably approved by you and to file such form of prospectus pursuant to Rule 424(b) under the
Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment
or supplement to such form of prospectus which shall be disapproved by you promptly after
reasonable notice thereof;
(c) If the end of the period during which the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or
sale of the Securities extends beyond the third anniversary (the “Renewal Deadline”) of the initial
effective date of the Registration Statement, the Company will file, if it has not already done so
and is eligible to do so, a new automatic shelf registration statement relating to the Securities,
in a form reasonably satisfactory to you. If at the Renewal Deadline the Company is no longer
eligible to file an automatic shelf registration statement, the Company will, if it has not already
done so, file a new shelf registration
statement relating to the Securities, in a form reasonably satisfactory to you and will use
its best efforts to cause such registration statement to be declared effective within 180 days
after the Renewal Deadline. The Company will take all other action necessary or appropriate to
permit the public offering and sale of the Securities to continue as contemplated in the expired
registration statement relating to the Securities. References herein to the Registration Statement
shall include such new automatic shelf registration statement or such new shelf registration
statement, as the case may be;
(d) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation, file a general consent to service of process, or take any action that would
subject it to taxation, in any jurisdiction;
(e) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish
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the Underwriter with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to the Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case the Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of the Underwriter, to prepare and deliver to the Underwriter as many
written and electronic copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(f) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(g) During the period (the “Lock-Up Period”) beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to offer, sell, contract to
sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as
provided hereunder, of the economic interest in any securities of the Company that are
substantially similar to the Securities, including but not limited to any options to purchase
shares of Stock or any securities that are convertible into or exercisable or exchangeable for, or
that represent the right to receive, Stock or any such substantially similar securities without
your written consent (other than (i) upon the conversion, exchange or exercise of convertible,
exchangeable or exercisable securities outstanding as of the date of this Agreement; (ii) pursuant
to employee stock option or stock purchase plans existing on the date of this Agreement; or (iii)
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pursuant to the Proposed Stock Split); provided, however, that the Company may enter into one or
more agreements in connection with any acquisition of or merger with another company, the
acquisition of the assets of another company or any corporate development or joint venture
agreement with another company, pursuant to which the Company may issue Stock, provided that (A)
the aggregate number of shares of Stock which the Company may issue pursuant to such agreements
shall not exceed 5 percent of the number of shares of Stock of the Company issued and outstanding
as of the date of this Agreement, but after giving effect to the number of the Securities purchased
by the Underwriter pursuant to this Agreement, in each case as adjusted proportionately if the
Company shall effect the Proposed Stock Split; and (B) the Company shall not actually issue any
shares of Stock pursuant to any such agreement during the Lock-Up Period;
(h) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act;
(i) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(j) To use its best efforts to list for quotation the Securities on the on the Nasdaq Stock
Market Inc.’s Global Select Market (“NASDAQ”); and
(k) Upon request of the Underwriter, to furnish, or cause to be furnished, to the Underwriter
an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the
website, if any, operated by the Underwriter for the purpose of facilitating the on-line offering
of the Securities (the “License”); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or transferred.
6.
(a) The Company represents and agrees that, without the prior consent of the Underwriter, it
has not made and will not make any offer relating to the Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the Act (a “Free Writing Prospectus”); the
Underwriter represents and agrees that, without the prior consent of the Company, it has not made
and will not make any offer relating to the Securities that would constitute a Free Writing
Prospectus; the Free Writing Prospectuses, if any, the use of which has been consented to by the
Company and the Underwriter are listed on Schedule I(b) hereto;
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(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading, the Company will give prompt notice thereof to the Underwriter
and, if requested by the Underwriter, will prepare and furnish without charge to the Underwriter an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by the Underwriter expressly for
use therein.
7. The Company covenants and agrees with the Underwriter that the Company will pay or cause to
be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing of the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriter and dealers; (ii) the cost of printing or producing any Blue
Sky Memorandum or closing documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(d) hereof, including the reasonable fees and disbursements of counsel
for the Underwriter in connection with such qualification and in connection with any Blue Sky
survey; (iv) all fees and expenses in connection with listing the Securities on NASDAQ (v) the
filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriter
in connection with, any required review by FINRA of the terms of the sale of the Securities; (vi)
the cost of preparing the Securities; (vii) the cost and charges of any transfer agent or
registrar; and (viii) all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. Notwithstanding
anything to the contrary in this paragraph, the Company and the Underwriter will bear the cost of
private chartered aircraft used in connection with the marketing of the Securities on a pro rata
basis for each person on each flight segment. It is understood, however,
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that, except as provided
in this Section, and Sections 9 and 11 hereof, the Underwriter will pay all of its own costs and
expenses, including the fees of its counsel, transfer taxes on resale of any of the Securities by
the Underwriter, and any advertising expenses connected with any offers the Underwriter may make.
8. The obligations of the Underwriter hereunder, as to the Securities to be delivered at each
Time of Delivery, shall be subject, in its discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
required to be performed prior to the Time of Delivery and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission and no notice
of objection by the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the
Commission; and all requests for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriter, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, in form and substance reasonably
satisfactory to you, with respect to such matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxxx & XxXxxxx LLP, counsel for the Company, shall have furnished to you their written
opinion, dated such Time of Delivery, in the form set forth in Annex I hereto.
(d) On the date of the execution of this Agreement, on the date of the Prospectus, on the
effective date of any post effective amendment to the Registration Statement filed subsequent to
the date of this Agreement and also at each Time of Delivery, Ernst & Young LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and
substance reasonably satisfactory to you;
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(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus,
(ii) since the respective dates as of which information is given in the Pricing Prospectus there
shall not have been any change in the capital stock, short-term debt or long term debt of the
Company or any of its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position, stockholders’ equity
or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Pricing Prospectus and (iii) on or after the Applicable Time, no
court or other tribunal shall have issued any order or ruling in any proceeding in which the
Company is a party, the effect of which, in any such case described in clause (i), (ii) or (iii),
is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(f) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or on NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on
NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either Federal or New York or
California State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(g) The Company shall have complied with the provisions of Section 5(e) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(h) The Securities shall have been duly listed for quotation on NASDAQ;
(i) The Company shall have obtained and delivered to the Underwriter executed copies of an
agreement from each executive officer and director (as
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disclosed in the Prospectus under the
caption “Management”) of the Company, in the form set forth in Annex II hereto (each, a “Lock-Up
Agreement”); and
(j) The Company shall have furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (e) of this Section and as to such other matters as
you may reasonably request.
9. (a) The Company will indemnify and hold harmless the Underwriter against any losses,
claims, damages or liabilities, joint or several, to which the Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any Covered Issuer Information (as defined below) or arise out of
or are based upon the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and will reimburse the
Underwriter for any legal or other expenses reasonably incurred by the Underwriter in connection
with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any Excluded Statements or an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use therein. As used herein,
“Covered Issuer Information” means any “issuer information” (as defined in Rule 433 under the Act)
of the Company, which issuer information is, or is required to be, filed with the Commission,
provided the requirement to file such “issuer information” did not arise solely as a result of a
breach by the Underwriter of the provisions of Section 6(a) hereof.
(b) The Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
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Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state in the Registration
Statement, or any amendment or supplement thereto, a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer
Free Writing Prospectus, in reliance upon and in conformity with written information furnished to
the Company by the Underwriter expressly for use therein, and such will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, promptly notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate
therein and, to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b)
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above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriter, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriter on the other
and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (d), the
Underwriter shall not be required to contribute any amount in excess of the amount by which the
total price at which the Securities were offered to the public exceeds the amount of any damages
which the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the
-20-
Underwriter within the meaning of the Act and each broker-dealer
affiliate of the Underwriter; and the obligations of the Underwriter under this Section 9 shall be
in addition to any liability which the Underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act or the Exchange Act.
10. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the Underwriter, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by the Underwriter or any
controlling person of the Underwriter, or the Company, or any officer or director or controlling
person of the Company, and shall survive delivery of and payment for the Securities. Any
representation or opinion that is based on the knowledge of the person giving such representation
or opinion shall be deemed to include a representation or opinion that such person has conducted a
reasonable investigation to ascertain the accuracy of the representation or opinion.
11. If for any reason, any of the Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriter for all out of pocket expenses
approved in writing by you, including fees and disbursements of counsel, subject to the limitations
set forth herein, in
each case reasonably incurred by the Underwriter in making preparations for the purchase, sale
and delivery of the Securities not so delivered, but the Company shall then be under no further
liability to the Underwriter except as provided in Sections 7 and 9 hereof.
12. All statements, requests, notices and agreements hereunder shall be in writing, and if to
the Underwriter shall be delivered or sent by mail, telex or facsimile transmission to the
Underwriter at Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Registration Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Registration Statement,
Attention: Secretary. Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
13. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriter is required to obtain, verify and record
information that identifies its clients, including the Company, which information may include the
name and address of its clients, as well as other information that will allow the Underwriter to
properly identify its clients.
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14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriter,
the Company and, to the extent provided in Sections 9 and 10 hereof, the officers and directors of
the Company and each person who controls the Company or the Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. No purchaser of any of the Securities from the
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the Underwriter, on the other, (ii) in connection therewith and with the process
leading to such transaction the Underwriter is acting solely as a principal and not the agent or
fiduciary of the Company, (iii) the Underwriter has not assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether the Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial
advisors to the extent it deemed appropriate. The Company agrees that it will not claim that
the Underwriter has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriter with respect to the subject matter hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and the Underwriter hereby irrevocably waive, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
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21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriter’s imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
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If the foregoing is in accordance with your understanding, please sign and return to us one for the
Company and one for the Underwriter plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, this letter and such acceptance hereof shall constitute a binding
agreement between the Underwriter and the Company.
| Very truly yours, Illumina, Inc. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | VP of Finance | |||
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Accepted as of the date hereof: |
||
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