Insert number of shares] SOI HOLDINGS, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
[Insert number of shares]
Common Stock
[ ], 2007
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the several
Underwriters named in Schedule 1 attached hereto,
Ladies and Gentlemen:
SOI Holdings, Inc., a Delaware corporation (the “Company”),
proposes to sell • shares (the
“Firm Stock”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”). In
addition, the certain stockholders of the Company named in Schedule 2 attached hereto (the
“Selling Stockholders”) propose to grant to the underwriters (the “Underwriters”) named in
Schedule 1 attached to this agreement (this “Agreement”) an option to purchase up to •
additional shares of the Common Stock on the terms set forth in Section 3 (the “Option Stock”).
The Firm Stock and the Option Stock, if purchased, are hereinafter collectively called the “Stock.”
This is to confirm the agreement concerning the purchase of the Stock from the Company and the
Selling Stockholders by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The Company represents,
warrants and agrees that:
(a) A registration statement on Form S-1 relating to the Stock has (i) been prepared by
the Company in conformity with the requirements of the Securities Act of 1933, as amended
(the “Securities Act”), and the rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder; (ii) been filed with the
Commission under the Securities Act; and (iii) become effective under the Securities Act.
Copies of such registration statement and any amendment thereto have been delivered by the
Company to you as the representatives (the “Representatives”) of the Underwriters. As used
in this Agreement:
(i) “Applicable Time” means [ ] p.m. (New York City time) [ ], 2007;
(ii) “Effective Date” means the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, was declared
effective by the Commission;
(iii) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the
Company or used or referred to by the Company in connection with the offering of the
Stock;
(iv) “Preliminary Prospectus” means any preliminary prospectus relating to the
Stock included in such registration statement or filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations;
(v) “Pricing Disclosure Package” means, as of the Applicable Time, the
Preliminary Prospectus dated [ ], 2007 (which is the most recent Preliminary
Prospectus distributed to investors generally), together with the information
included in Schedule 4 hereto and each Issuer Free Writing Prospectus filed
or used by the Company on or before the Applicable Time, other than a road show that
is an Issuer Free Writing Prospectus but is not required to be filed under Rule 433
of the Rules and Regulations.
(vi) “Prospectus” means the final prospectus relating to the Stock, as filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “Registration Statement” means such registration statement, as amended as
of the Effective Date, including any Preliminary Prospectus or the Prospectus and
all exhibits to such registration statement.
Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the
latest Preliminary Prospectus included in the Registration Statement or filed pursuant to
Rule 424(b) prior to or on the date hereof. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus or
suspending the effectiveness of the Registration Statement, and no proceeding or examination
for such purpose has been instituted or threatened by the Commission. Unless otherwise
specified, a reference to a “Rule” is to the indicated rule of the Rules and Regulations.
(b) The Company was not at the time of initial filing of the Registration Statement and
at the earliest time thereafter that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Stock,
is not on the date hereof and will not be on the applicable Delivery Date an “ineligible
issuer” (as defined in Rule 405).
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(c) The Registration Statement conformed and will conform in all material respects on
the Effective Date and on the applicable Delivery Date, and any amendment to the
Registration Statement filed after the date hereof will conform in all material respects
when filed, to the requirements of the Securities Act and the Rules and Regulations. The
Pricing Disclosure Package conformed, and the Prospectus will conform, in all material
respects when filed with the Commission pursuant to Rule 424(b) and on the applicable
Delivery Date to the requirements of the Securities Act and the Rules and Regulations.
(d) The Registration Statement did not, as of the Effective Date, 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; provided that no representation
or warranty is made as to information contained in or omitted from the Registration
Statement in reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 10(f).
(e) The Prospectus will not, as of its date and on the applicable Delivery Date,
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 that no representation or
warranty is made as to information contained in or omitted from the Prospectus in reliance
upon and in conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 10(f).
(f) The Pricing Disclosure Package did not, as of the Applicable Time, 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 that no representation or warranty is made as to information contained
in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein, which information is specified in
Section 10(f).
(g) Each Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433), when considered together with the Pricing
Disclosure Package as of the Applicable Time, 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.
(h) Each Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations on the date
of first use, and the Company has complied with all prospectus delivery and
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any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to
the Rules and Regulations. The Company has not made any offer relating to the Stock that
would constitute an Issuer Free Writing Prospectus without the prior written consent of the
Representatives. The Company has retained in accordance with the Rules and Regulations all
Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Rules
and Regulations. The Company has taken all actions necessary so that any “road show” (as
defined in Rule 433 of the Rules and Regulations) in connection with the offering of the
Stock will not be required to be filed pursuant to the Rules and Regulations.
(i) Each of the Company and its subsidiaries (as defined in Section 19) has been duly
organized, is validly existing and in good standing as a corporation or other business
entity under the laws of its jurisdiction of organization and is duly qualified to do
business and in good standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to be so qualified or in good standing
would not, in the aggregate, reasonably be expected to have a material adverse effect on the
financial condition, results of operations, stockholders’ equity, properties, business or
business prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”); each of the Company and its subsidiaries has all power and authority necessary to
own or hold its properties and to conduct the businesses in which it is engaged. The
Company does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21 to the Registration Statement
or Schedule 5 attached hereto. None of the subsidiaries of the Company (other than
Strategic Outsourcing, Inc., Amlease Corporation, SOI-30 of TX, Inc., FL SUB-37, Inc., FL
SUB-38, Inc. and Route 66 HR Outsourcing, Inc. (collectively, the “Significant
Subsidiaries”)) is a “significant subsidiary” (as defined in Rule 405).
(j) The Company has an authorized capitalization as set forth in the column captioned
“Actual” under the caption “Capitalization” in each of the Pricing Disclosure Package and
the Prospectus, and all of the issued shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and non-assessable, conform to the description
thereof contained in the Pricing Disclosure Package and were issued in compliance with
federal and state securities laws and not in violation of any preemptive right, resale
right, right of first refusal or similar right. All of the Company’s options, warrants 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 thereof
contained in the Pricing Disclosure Package and were issued in compliance with federal and
state securities laws. All of the issued shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except for such liens, encumbrances, equities or claims as would not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
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(k) The shares of the Firm Stock to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and, upon payment and delivery in
accordance with this Agreement, will be validly issued, fully paid and non-assessable, will
conform to the description thereof contained in the Pricing Disclosure Package, will be
issued in compliance with federal and state securities laws and will be free of statutory
and contractual preemptive rights, rights of first refusal and similar rights. The shares
of Option Stock to be sold by the Selling Stockholders will be sold in compliance with
federal and state securities laws.
(l) The Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(m) The execution, delivery and performance of this Agreement by the Company, the
consummation of the transactions contemplated hereby and the application of the proceeds
from the sale of the Stock as described under “Use of Proceeds” in the Pricing Disclosure
Package will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, impose any lien, charge or encumbrance upon any property or assets of the
Company and its subsidiaries pursuant to, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, license 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; (ii) result in any violation of the provisions of the charter or
by-laws (or similar organizational documents) of the Company or any of its subsidiaries; or
(iii) result in any 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 or assets.
(n) No consent, approval, authorization or order of, or filing or registration with,
any court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets is required for the execution, delivery
and performance of this Agreement by the Company, the consummation by the Company of the
transactions contemplated hereby, the application of the proceeds from the sale of the Stock
as described under “Use of Proceeds” in the Pricing Disclosure Package, except for the
registration of the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and applicable state or foreign
securities laws in connection with the purchase and sale of the Stock by the Underwriters.
(o) Except as described in the Pricing Disclosure Package, there are no contracts,
agreements or understandings between the Company and any person granting such person the
right (other than rights which have been waived in writing or otherwise satisfied) to
require the Company to file a registration statement under the Securities Act with respect
to any securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to the
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Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(p) The Company has not sold or issued any securities that would be integrated with the
offering of the Stock contemplated by this Agreement pursuant to the Securities Act, the
Rules and Regulations or the interpretations thereof by the Commission.
(q) Neither the Company nor any of its subsidiaries has sustained, since the date of
the latest audited financial statements included in the Pricing 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 since such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any adverse change in or
affecting the financial condition, results of operations, stockholders’ equity, properties,
management, business or business prospects of the Company and its subsidiaries taken as a
whole, in each case except as would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(r) Since the date as of which information is given and except as described in the
Registration Statement and the Pricing Disclosure Package, the Company has not (i) incurred
any liability or obligation, direct or contingent, other than liabilities and obligations
that were incurred in the ordinary course of business, (ii) entered into any material
transaction not in the ordinary course of business or (iii) declared or paid any dividend on
its capital stock.
(s) The historical financial statements (including the related notes and supporting
schedules) included in the Registration Statement and the Pricing Disclosure Package comply
as to form in all material respects with the requirements of Regulation S-X under the
Securities Act and present fairly the financial condition, results of operations and cash
flows of the entities purported to be shown thereby at the dates and for the periods
indicated and have been prepared in conformity with accounting principles generally accepted
in the United States applied on a consistent basis throughout the periods involved.
(t) PricewaterhouseCoopers, who have certified certain financial statements of the
Company and its consolidated subsidiaries, whose reports appear in the Registration
Statement and the Pricing Disclosure Package and who have delivered the initial letter
referred to in Section 9(h) hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations; and Ernst & Young LLP, whose report appears in
the Registration Statement and the Pricing Disclosure Package and who have delivered the
initial letter referred to in Section 9(j) hereof, were independent public accountants as
required by the Securities Act and the Rules and Regulations during the periods covered by
the financial statements on which they reported contained in the Registration Statement and
the Pricing Disclosure Package.
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(u) The Company and each of its subsidiaries have good and marketable title in fee
simple to all real property and good title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects, except such as are described in
the Pricing Disclosure Package or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and all assets held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and enforceable leases, with
such exceptions as do not materially interfere with the use made and proposed to be made of
such assets by the Company and its subsidiaries.
(v) The Company and each of its subsidiaries carry, or are covered by, insurance in
such amounts and covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as in the reasonable opinion of
the Company or the respective subsidiary is customary for companies engaged in similar
businesses in similar industries. All policies of insurance of the Company and its
subsidiaries are in full force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies in all material respects; and neither the Company
nor any of its subsidiaries has received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or necessary to be made in
order to continue such insurance; there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause; and neither the Company
nor any such subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a cost that would not
reasonably be expected to have a Material Adverse Effect.
(w) The statistical and market-related data included under the captions “Prospectus
Summary,” “Risk Factors,” “Selected Consolidated Financial Data,” “Management’s Discussion
and Analysis of Financial Condition and Results of Operations,” “Business,” “Compensation
Discussion and Analysis” and “Certain Relationships and Related Party Transactions” in the
Pricing Disclosure Package and the consolidated financial statements of the Company and its
subsidiaries included in the Pricing Disclosure Package are based on or derived from sources
that the Company believes to be reliable and accurate in all material respects.
(x) Neither the Company nor any subsidiary is, and as of the applicable Delivery Date
and, after giving effect to the offer and sale of the Firm Stock and the application of the
proceeds therefrom as described under “Use of Proceeds” in the Pricing Disclosure Package
and the Prospectus, none of them will be, (i) an “investment company” within the meaning of
such term under the Investment Company Act of 1940, as amended (the “Investment Company
Act”), and the rules and regulations of the Commission thereunder or (ii) a “business
development company” (as defined in Section 2(a)(48) of the Investment Company Act).
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(y) 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 or assets of the Company or any of
its subsidiaries is the subject that would, in the aggregate, reasonably be expected to have
a Material Adverse Effect or could, in the aggregate, reasonably be expected to have a
material adverse effect on the performance of this Agreement or the consummation of the
transactions contemplated hereby; and to the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or others.
(z) There are no legal or governmental proceedings or contracts or other documents of a
character required to be described in the Registration Statement or the Pricing Disclosure
Package or, in the case of documents, to be filed as exhibits to the Registration Statement,
that are not described and filed as required. Neither the Company nor any of its
subsidiaries has knowledge that any other party to any such contract, agreement or
arrangement has any intention not to render full performance as contemplated by the terms
thereof; and the statements made in the Pricing Disclosure Package under the captions
“Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial
Condition and Results of Operations,” “Business,” “Management,” “Compensation Discussion and
Analysis,” “Certain Relationships and Related Transactions,” “Description of Capital Stock,”
“Shares Eligible for Future Sale,” “Underwriting” and “Material U.S. Federal Tax
Considerations for Non-U.S. Holders” insofar as they purport to describe statutes, rules or
regulations, legal or governmental proceedings or contracts and other documents, fairly and
accurately summarize the terms or matters described therein in all material respects.
(aa) No relationship, direct or indirect, exists between or among the Company, on the
one hand, and the directors, officers, stockholders, customers or suppliers of the Company,
on the other hand, that is required to be described in the Pricing Disclosure Package which
is not so described.
(bb) No labor disturbance by the employees of the Company or its subsidiaries exists
or, to the knowledge of the Company, is imminent that would reasonably be expected to have a
Material Adverse Effect.
(cc) (i) 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 all material respects in compliance with its terms and with the requirements
of all applicable statutes, rules and regulations including ERISA and the Code; (ii) with
respect to each Plan subject to Title IV of ERISA (a) no “reportable event” (within the
meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (b) no
“accumulated funding deficiency” (within the meaning of Section 302 of ERISA or Section 412
of the Code), whether or not waived, has occurred or is reasonably expected to occur, (c)
the fair market value of the assets
8
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 (d) neither the Company
or 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 the
PBGC 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 (iii) 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.
(dd) The Company and each of its subsidiaries have filed all federal, state, local and
foreign income and franchise tax returns required to be filed through the date hereof,
subject to permitted extensions, and have paid all taxes due thereon, and no tax deficiency
has been determined adversely to the Company or any of its subsidiaries, nor does the
Company have any knowledge of any tax deficiencies that would, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(ee) 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 sale by the Company of the Firm Stock.
(ff) Neither the Company nor any of its subsidiaries (i) is in violation of its charter
or by-laws (or similar organizational documents), (ii) is in default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a default, under
any indenture, mortgage, deed of trust, loan agreement, license or other agreement or
instrument to which it is a party or by which it is bound or to which any of its properties
or assets is subject or (iii) is in violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over it or its
property or assets or has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of its property or to
the conduct of its business, except in the case of clauses (ii) and (iii), to the extent any
such conflict, breach, violation or default would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(gg) The Company and each of its subsidiaries (i) make and keep accurate books and
records and (ii) maintain and has maintained effective internal control over financial
reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal
accounting controls sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management’s general or specific authorization, (B) transactions
are recorded as necessary to permit preparation of the Company’s financial statements in
conformity with accounting principles generally accepted in the United States and to
maintain accountability for its assets, (C) access to the Company’s assets is permitted only
in accordance with management’s general or specific authorization and (D) the recorded
accountability for the Company’s assets is
9
compared with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(hh) (i) The Company and each of its subsidiaries have established and maintain
disclosure controls and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the
information required to be disclosed by the Company and its subsidiaries in the reports they
will file or submit under the Exchange Act is accumulated and communicated to management of
the Company and its subsidiaries, including their respective principal executive officers
and principal financial officers, as appropriate, to allow timely decisions regarding
required disclosure to be made and (iii) such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were established.
(ii) Since the date of the most recent balance sheet of the Company and its
consolidated subsidiaries reviewed or audited by PricewaterhouseCoopers and the audit
committee of the board of directors of the Company and except as described in the Pricing
Disclosure Package, (i) the Company has not been advised of (A) any significant deficiencies
in the design or operation of internal controls that could adversely affect the ability of
the Company and each of its subsidiaries to record, process, summarize and report financial
data, or any material weaknesses in internal controls or (B) any fraud, whether or not
material, that involves management or other employees who have a significant role in the
internal controls of the Company and each of its subsidiaries, and (ii) there have been no
significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies
and material weaknesses.
(jj) There is and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such, to comply with the provisions
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith that, in each case, are or have been applicable to the Company or any of its
officers or directors.
(kk) The section entitled “Management’s Discussion and Analysis of Financial Condition
and Results of Operations — Critical Accounting Policies” in the Pricing Disclosure Package
accurately and fully describes (A) the accounting policies that the Company believes are the
most important in the portrayal of the Company’s financial condition and results of
operations and that require management’s most difficult, subjective or complex judgments
(“Critical Accounting Policies”); (B) the judgments and uncertainties affecting the
application of critical accounting policies; and (C) the likelihood that materially
different amounts would be reported under different conditions or using different
assumptions and an explanation thereof.
(ll) The Company and each of its subsidiaries have such permits, licenses, patents,
franchises, certificates of need and other approvals or authorizations of governmental or
regulatory authorities (“Permits”) as are necessary under applicable law
10
to own their properties and conduct their businesses in the manner described in the
Pricing Disclosure Package, except for any of the foregoing that would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect; each of the Company and
its subsidiaries has fulfilled and performed all of its obligations with respect to the
Permits, and no event has occurred that allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other impairment of the rights of
the holder or any such Permits, except for any of the foregoing that would not reasonably be
expected to have a Material Adverse Effect.
(mm) The Company and each of its subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses, know-how, software, systems
and technology (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) necessary for the conduct of their
respective businesses and have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any claim of conflict
with, any such rights of others.
(nn) Except as described in the Pricing Disclosure Package, (A) there are no
proceedings that are pending, or known to be contemplated, against the Company or any of its
subsidiaries under any laws, regulations, ordinances, rules, orders, judgments, decrees,
permits or other legal requirements of any governmental authority, including without
limitation any international, national, state, provincial, regional, or local authority,
relating to the protection of human health or safety, the environment, or natural resources,
or to hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”) in which a governmental authority is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be
imposed, (B) the Company and its subsidiaries are not aware of any issues regarding
compliance with Environmental Laws, or liabilities or other obligations under Environmental
Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that
could reasonably be expected to have a material effect on the capital expenditures, earnings
or competitive position of the Company and its subsidiaries, and (C) none of the Company
and its subsidiaries anticipates material capital expenditures relating to Environmental
Laws.
(oo) Neither the Company nor any subsidiary is in violation of or has received notice
of any violation from any governmental or regulatory authority with respect to any federal
or state law relating to discrimination in the hiring, promotion or pay of employees, nor
any applicable federal or state wage and hour laws, nor any state law precluding the denial
of credit due to the neighborhood in which a property is situated, the violation of any of
which would reasonably be expected to have a Material Adverse Affect.
(pp) 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
11
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,
except as described in the Pricing Disclosure Package.
(qq) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(rr) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions that are applicable to the Company or its
subsidiaries, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency that
are applicable to the Company or its subsidiaries (collectively, the “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 Money Laundering Laws is pending or, to the knowledge of the Company,
threatened, except, in each case, as would not reasonably be expected to have a Material
Adverse Effect.
(ss) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
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 or
entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(tt) None of the Directed Shares distributed in connection with the Directed Share
Program (each as defined in Section 4) will be offered or sold outside of the United States.
(uu) The Company has not offered, or caused [ ] to offer, Stock to any person pursuant
to the Directed Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer’s or supplier’s level or type of
business with the Company or (ii) a trade journalist or publication to write or publish
favorable information about the Company, its business or its products.
12
(vv) The Company has not distributed and, prior to the later to occur of any Delivery
Date and completion of the distribution of the Stock, will not distribute any offering
material in connection with the offering and sale of the Stock other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Representatives
have consented in accordance with Section 1(i) or 6(a)(vi) and, in connection with the
Directed Share Program described in Section 4, the enrollment materials prepared by [ ] on
behalf of the Company.
(ww) The Company has not taken and will not take, directly or indirectly, any action
designed to or that has constituted or that could reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the Stock.
(xx) The Stock has been approved for listing, subject to official notice of issuance
and evidence of satisfactory distribution, on the New York Stock Exchange.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Stock shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Representations, Warranties and Agreements of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling
Stockholder (other than, if applicable, the Company and the Underwriters) has used or
referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the
Selling Stockholder is selling shares of Option Stock, the Selling Stockholder will have,
good and valid title to, or a valid “security entitlement” within the meaning of Section
8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the shares of Option
Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear
of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities
or claims arising under the Custody Agreement (as defined below).
(c) The Option Stock to be sold by the Selling Stockholder hereunder, which is
represented by the certificates held in custody for the Selling Stockholder, is subject to
the interest of the Underwriters and the other Selling Stockholders under the Custody
Agreement, the arrangements made by the Selling Stockholder for such custody are to that
extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be
terminated by any act of the Selling Stockholder, by operation of law, by the death or
incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or
incapacity of any executor or trustee or the termination of such trust, or the occurrence of
any other event.
13
(d) The Option Stock to be sold by the Selling Stockholders hereunder is subject to the
interest of the Underwriters, and the obligations of the Selling Stockholders hereunder shall
not be terminated by any act of the Selling Stockholder, by operation of law or the
occurrence of any other event.
(e) Upon payment for the Option Stock to be sold by such Selling Stockholder, delivery
of such Option Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other
nominee as may be designated by The Depository Trust Company (“DTC”), registration of such
Option Stock in the name of Cede or such other nominee and the crediting of such Option Stock
on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor
any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of
the UCC) to such Option Stock), (i) DTC shall be a “protected purchaser” of such Option Stock
within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the
Underwriters will acquire a valid security entitlement in respect of such Option Stock and
(iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC,
to such Option Stock may be asserted against the Underwriters with respect to such security
entitlement. For purposes of this representation, such Selling Stockholder may assume that
when such payment, delivery and crediting occur, (A) such Option Stock will have been
registered in the name of Cede or another nominee designated by DTC, in each case on the
Company’s share registry in accordance with its certificate of incorporation, bylaws and
applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of
Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several
Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has placed in custody under a custody agreement (the
“Custody Agreement” and, together with all other similar agreements executed by the other
Selling Stockholders, the “Custody Agreements”) with [insert name of custodian], as custodian
(the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with
signature guaranteed by a participant in the Securities Transfer Agents Medallion Program,
the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion
Program) representing the shares of Option Stock to be sold by the Selling Stockholder
hereunder.
(g) The Selling Stockholder has duly and irrevocably executed and delivered a power of
attorney (the “Power of Attorney” and, together with all other similar agreements executed by
the other Selling Stockholders, the “Powers of Attorney”) appointing the Custodian and
Messrs. [ ] as attorneys-in-fact, with full power of substitution, and
with full authority (exercisable by any one or more of them) to execute and deliver this
Agreement and to take such other action as may be necessary or desirable to carry out the
provisions hereof on behalf of the Selling Stockholder.
(h) The Selling Stockholder has full right, power and authority, corporate or otherwise,
to enter into this Agreement, the Custody Agreement and the Power of Attorney.
14
(i) This Agreement has been duly and validly authorized, executed and delivered by or on
behalf of the Selling Stockholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly
authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute
valid and legally binding obligations of the Selling Stockholder enforceable against the
Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors’ rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith
and fair dealing.
(k) The execution, delivery and performance of this Agreement, the Custody Agreement and
the Power of Attorney by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby do not and will not (i)
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, license
or other agreement or instrument to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property or assets of the Selling
Stockholder is subject, (ii) result in any violation of the provisions of the charter
by-laws, deed of trust (or similar organizational documents) of the Selling Stockholder if
the Selling Stockholder is not a natural person, or (iii) result in any violation of any
statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property or assets of the Selling
Stockholder.
(l) No consent, approval, authorization or order of, or filing or registration with, any
court or governmental agency or body having jurisdiction over the Selling Stockholder or the
property or assets of the Selling Stockholder is required for the execution, delivery and
performance of this Agreement, the Custody Agreement or the Power of Attorney by the Selling
Stockholder and the consummation by the Selling Stockholder of the transactions contemplated
hereby and thereby, except for the registration of the Stock under the Securities Act and
such consents, approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities laws in connection with the
purchase and sale of the Stock by the Underwriters.
(m) To the knowledge of the Selling Stockholder, the Registration Statement did not, as
of the Effective Date, 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; provided that no representation or warranty is made as to information contained
in or omitted from the Registration Statement in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified in Section
10(f).
15
(n) To the knowledge of the Selling Stockholder, the Prospectus will not, as of its date
and on the applicable Delivery Date, 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 that no representation or warranty is made as to information contained in or omitted
from the Prospectus in reliance upon and in conformity with written information furnished to
the Company through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 10(f).
(o) To the knowledge of the Selling Stockholder, the Pricing Disclosure Package did not,
as of the Applicable Time, 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 that no
representation or warranty is made as to information contained in or omitted from the Pricing
Disclosure Package in reliance upon and in conformity with written information furnished to
the Company through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 10(f).
(p) To the knowledge of the Selling Stockholder, each Issuer Free Writing Prospectus
(including, without limitation, any road show that is a free writing prospectus under Rule
433), when considered together with the Pricing Disclosure Package as of the Applicable Time,
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.
(q) The Selling Stockholder is not prompted to sell shares of Common Stock by any
information concerning the Company that is not set forth in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(r) The Selling Stockholder has not taken and will not take, directly or indirectly, any
action that is designed to or that has constituted or that could reasonably be expected to
cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the shares of the Stock.
(s) The sale of the Common Stock by the Selling Stockholder does not violate any of the
Company’s internal policies regarding the sale of stock by its affiliates.
Any certificate signed by any Selling Stockholder or any officer of any Selling Stockholder
and delivered to the Representatives or counsel for the Underwriters in connection with the
offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as
to matters covered thereby, to each Underwriter.
3. Purchase of the Stock by the Underwriters. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this
16
Agreement, the Company agrees to sell • shares of the Firm Stock to the several Underwriters,
and each of the Underwriters, severally and not jointly, agrees to purchase the number of shares of
the Firm Stock set forth opposite that Underwriter’s name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm Stock shall be rounded
among the Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, each Selling Stockholder grants to the Underwriters an option to purchase up to
the number of shares of Option Stock set forth opposite such Selling Stockholder’s name in
Schedule 2 hereto, severally and not jointly. Such option is exercisable in the event that
the Underwriters sell more shares of Common Stock than the number of shares of Firm Stock in the
offering and as set forth in Section 5 hereof. Any such election to purchase Option Stock shall be
made in proportion to the maximum number of shares of Option Stock to be sold by each Selling
Shareholder as set forth in Schedule 2 hereto. Each Underwriter agrees, severally and not
jointly, to purchase the number of shares of Option Stock (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the same proportion to the total
number of shares of Option Stock to be sold on such Delivery Date as the number of shares of Firm
Stock set forth in Schedule 1 hereto opposite the name of such Underwriter bears to the
total number of shares of Firm Stock.
The price of both the Firm Stock and any Option Stock purchased by the Underwriters shall be
$• per share.
The Company and the Selling Stockholders shall not be obligated to deliver any of the Firm
Stock or Option Stock to be delivered on the applicable Delivery Date, except upon payment for all
such Stock to be purchased on such Delivery Date as provided herein.
4. Offering of Stock by the Underwriters. Upon authorization by the Representatives
of the release of the Firm Stock, the several Underwriters propose to offer the Firm Stock for sale
upon the terms and conditions to be set forth in the Prospectus.
It is understood that approximately • shares of the Firm Stock (the “Directed Shares”) will
initially be reserved by the several Underwriters for offer and sale upon the terms and conditions
to be set forth in the Pricing Disclosure Package and in accordance with the rules and regulations
of the Financial Industry Regulatory Authority (the “FINRA”) to employees of the Company and its
subsidiaries and persons having business relationships with the Company and its subsidiaries who
have heretofore delivered to [ ] offers or indications of interest to purchase shares of Firm
Stock in form satisfactory to [ ] (such program, the “Directed Share Program”) and that any
allocation of such Firm Stock among such persons will be made in accordance with timely directions
received by [ ] from the Company; provided that under no circumstances will [ ] or any
Underwriter be liable to the Company or to any such person for any action taken or omitted in good
faith in connection with such Directed Share Program. It is further understood that any Directed
Shares not affirmatively reconfirmed for purchase by any participant in the Directed Share Program
by [ ]:00 A.M., New York City time, on the [date hereof] or otherwise are not purchased by such
persons will be offered by the Underwriters to the public upon the terms and conditions set forth
in the Prospectus.
17
The Company agrees to pay all fees and disbursements incurred by the Underwriters in
connection with the Directed Share Program and any stamp duties or other taxes incurred by the
Underwriters in connection with the Directed Share Program.
5. Delivery of and Payment for the Stock. Delivery of and payment for the Firm Stock
shall be made at 10:00 A.M., New York City time, on the third full business day following the date
of this Agreement or at such other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to as the “Initial
Delivery Date.” Delivery of the Firm Stock shall be made to the Representatives for the account of
each Underwriter against payment by the several Underwriters through the Representatives and of the
respective aggregate purchase prices of the Firm Stock being sold by the Company to or upon the
order of the Company of the purchase price by wire transfer in immediately available funds to the
accounts specified by the Company. Time shall be of the essence, and delivery 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 Firm Stock through the facilities of DTC unless the
Representatives shall otherwise instruct.
The option granted in Section 3 will expire 30 days after the date of this Agreement and may
be exercised in whole or from time to time in part by written notice being given to the Selling
Stockholders by the Representatives; provided that if such date falls on a day that is not a
business day, the option granted in Section 3 will expire on the next succeeding business day.
Such notice shall set forth the aggregate number of shares of Option Stock as to which the option
is being exercised, the names in which the shares of Option Stock are to be registered, the
denominations in which the shares of Option Stock are to be issued and the date and time, as
determined by the Representatives, when the shares of Option Stock are to be delivered; provided,
however, that this date and time shall not be earlier than the Initial Delivery Date nor earlier
than the second business day after the date on which the option shall have been exercised nor later
than the fifth business day after the date on which the option shall have been exercised. Each
date and time the shares of Option Stock are delivered is sometimes referred to as an “Option Stock
Delivery Date,” and the Initial Delivery Date and any Option Stock Delivery Date are sometimes each
referred to as a “Delivery Date.”
Delivery of the Option Stock by the Selling Stockholders and payment for the Option Stock by
the several Underwriters through the Representatives shall be made at 10:00 A.M., New York City
time, on the date specified in the corresponding notice described in the preceding paragraph or at
such other date or place as shall be determined by agreement between the Representatives and the
Company. On the Option Stock Delivery Date, the Selling Stockholders shall deliver or cause to be
delivered the Option Stock to the Representatives for the account of each Underwriter against
payment by the several Underwriters through the Representatives and of the respective aggregate
purchase prices of the Option Stock being sold by the Selling Stockholders to or upon the order of
the Selling Stockholders of the purchase price by wire transfer in immediately available funds to
the accounts specified by the Selling Stockholders. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. The Selling Stockholders shall deliver the Option Stock through the
facilities of DTC unless the
18
Representatives shall otherwise instruct. [TO BE CONFIRMED THAT DELIVERY WILL OCCUR THROUGH
DTC]
6. Further Agreements of the Company and the Underwriters. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the
Commission’s close of business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the last Delivery Date except as provided
herein; to advise the Representatives, promptly after it receives notice thereof, of the
time when any amendment or supplement to the Registration Statement or the Prospectus has
been filed and to furnish the Representatives with copies thereof; to advise the
Representatives, 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 the
Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of
the Stock for offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding or examination for any such purpose or of any request by the Commission for the
amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free
Writing 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 the Prospectus or any Issuer
Free Writing Prospectus or suspending any such qualification, to use promptly its reasonable
commercial efforts to obtain its withdrawal;
(ii) To furnish promptly to each of the Representatives and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission, including all consents and
exhibits filed therewith;
(iii) To deliver promptly to the Representatives such number of the following documents
as the Representatives shall reasonably request: (A) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation of per share earnings), (B)
each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and
(C) each Issuer Free Writing Prospectus; and, if the delivery of a prospectus is required at
any time after the date hereof in connection with the offering or sale of the Stock or any
other securities relating thereto and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with the Securities Act,
to notify the Representatives and, upon their request, to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives
19
may from time to time reasonably request of an amended or supplemented Prospectus that
will correct such statement or omission or effect such compliance;
(iv) To file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the Commission;
(v) Prior to filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, to furnish a copy thereof to the Representatives and counsel
for the Underwriters and obtain the consent of the Representatives to the filing;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the Representatives;
(vii) To comply with all applicable requirements of Rule 433 with respect to any Issuer
Free Writing Prospectus; and if at any time after the date hereof any events shall have
occurred as a result of which any Issuer Free Writing Prospectus, as then amended or
supplemented, would conflict with the information in the Registration Statement, the Pricing
Disclosure Package 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 were made, not misleading, or, if for any other
reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to
notify the Representatives and, upon their request, to file such document and to prepare and
furnish without charge to each Underwriter as many copies as the Representatives may from
time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus
that will correct such conflict, statement or omission or effect such compliance;
(viii) As soon as practicable after the Effective Date (it being understood that the
Company shall have until at least 410 or, if the fourth quarter following the fiscal quarter
that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year,
455 days after the end of the Company’s current fiscal quarter), to make generally available
to the Company’s security holders and to deliver to the Representatives 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);
(ix) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify the Stock for offering and sale under the securities laws of
Canada and such other jurisdictions as the Representatives 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 Stock;
provided that in connection therewith the Company shall not be required to (i) qualify as a
foreign corporation in any jurisdiction in which it would not otherwise be required to so
20
qualify, (ii) file a general consent to service of process in any such jurisdiction or
(iii) subject itself to taxation in any jurisdiction in which it would not otherwise be
subject;
(x) For a period commencing on the date hereof and ending on the 180th day after the
date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at any time in
the future of) any shares of Common Stock or securities convertible into or exchangeable for
Common Stock (other than the Stock and shares issued or issuable pursuant to employee
benefit plans, qualified stock option plans or other employee compensation plans existing on
the date hereof or pursuant to currently outstanding options, warrants or rights not issued
under one of those plans), or sell or grant options, rights or warrants with respect to any
shares of Common Stock or securities convertible into or exchangeable for Common Stock
(other than the grant of options pursuant to option plans existing on the date hereof), (2)
enter into any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such shares of Common Stock,
whether any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be
filed a registration statement, including any amendments, with respect to the registration
of any shares of Common Stock or securities convertible, exercisable or exchangeable into
Common Stock or any other securities of the Company (other than any registration statement
on Form S-8) or (4) publicly disclose the intention to do any of the foregoing, in each case
without the prior written consent of Credit Suisse Securities (USA) LLC and Xxxxxx Brothers
Inc., on behalf of the Underwriters, and to cause each officer, director, Selling
Stockholder and stockholder of the Company set forth on Schedule 3 hereto to furnish
to the Representatives, prior to the Initial Delivery Date, a letter or letters,
substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”);
notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the
Company issues an earnings release or material news or a material event relating to the
Company occurs or (2) 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, then the restrictions imposed in this paragraph shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the earnings release
or the announcement of the material news or the occurrence of the material event, unless
Credit Suisse Securities (USA) LLC and Xxxxxx Brothers Inc., on behalf of the Underwriters,
waive such extension in writing;
(xi) To apply the net proceeds from the sale of the Stock being sold by the Company as
set forth in the Pricing Disclosure Package; and
(xii) In connection with the Directed Share Program, to ensure that the Directed Shares
will be restricted from sale, transfer, assignment, pledge or hypothecation to the same
extent as sales and dispositions of Common Stock by the Company are restricted pursuant to
Section 6(a)(x), and [ ] will notify the Company as to which Directed Share Participants
will need to be so restricted. At the request of [ ], the Company will direct
21
the transfer agent to place stop transfer restrictions upon such securities for such
period of time as is consistent with Section 6(a)(x).
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer
information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405)
used or referred to by such Underwriter without the prior consent of the Company (any such issuer
information with respect to whose use the Company has given its consent, “Permitted Issuer
Information”); provided that (i) no such consent shall be required with respect to any such issuer
information contained in any document filed by the Company with the Commission prior to the use of
such free writing prospectus and (ii) “issuer information,” as used in this Section 6(b), shall not
be deemed to include information prepared by or on behalf of such Underwriter on the basis of or
derived from issuer information.
7. Further Agreements of the Selling Stockholders. Each Selling Stockholder agrees:
(a) That the Stock to be sold by the Selling Stockholder hereunder, which is
represented by the certificates held in custody for the Selling Stockholder, is subject to
the interest of the Underwriters and the other Selling Stockholders under the Custody
Agreement, that the arrangements made by the Selling Stockholder for such custody are to
that extent irrevocable, and that the obligations of the Selling Stockholder hereunder shall
not be terminated by any act of the Selling Stockholder, by operation of law, by the death
or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death
or incapacity of any executor or trustee or the termination of such trust, or the occurrence
of any other event.
(b) Neither the Selling Stockholder nor any person acting on behalf of the Selling
Stockholder (other than, if applicable, the Company and the Underwriters) shall use or refer
to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(c) That the Custodian will deliver to the Representatives a letter stating that it
will deliver to each Selling Stockholder a United States Treasury Department Form 1099 (or
other applicable form or statement specified by the United States Treasury Department
regulations in lieu thereof) on or before January 31 of the year following the date of this
Agreement.
8. Expenses. The Company agrees, whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and
taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of the
Stock and any stamp duties or other taxes payable in that connection, and the preparation and
printing of certificates for the Stock; (b) the preparation, printing and filing under the
Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement
thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), any
Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any
22
amendment or supplement thereto, all as provided in this Agreement; (d) the production and
distribution of this Agreement, any supplemental agreement among Underwriters, and any other
related documents in connection with the offering, purchase, sale and delivery of the Stock; (e)
the delivery and distribution of the Custody Agreements and the Powers of Attorney and the fees and
expenses of the Custodian (and any other attorney-in-fact); (f) any required review by FINRA of the
terms of sale of the Stock (including the related fees and expenses of counsel to the
Underwriters); (g) the listing of the Stock on the New York Stock Exchange and/or any other
exchange; (h) the qualification of the Stock under the securities laws of the several jurisdictions
as provided in Section 6(a)(ix) and the preparation, printing and distribution of a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters); (i) the
preparation, printing and distribution of one or more versions of the Preliminary Prospectus and
the Prospectus for distribution in Canada, often in the form of a Canadian “wrapper” (including
related fees and expenses of Canadian counsel to the Underwriters); (j) any Independent Underwriter
(as defined in Section 10(h)); (k) the offer and sale of shares of the Stock by the Underwriters in
connection with the Directed Share Program, including the fees and disbursements of counsel to the
Underwriters related thereto, the costs and expenses of preparation, printing and distribution of
the Directed Share Program material and all stamp duties or other taxes incurred by the
Underwriters in connection with the Directed Share Program; (l) the investor presentations on any
“road show” undertaken in connection with the marketing of the Stock, including, without
limitation, expenses associated with any electronic roadshow, travel and lodging expenses of the
representatives and officers of the Company and the cost of any aircraft chartered in connection
with the road show; and (m) all other costs and expenses incident to the performance of the
obligations of the Company and the Selling Stockholders under this Agreement; provided that, except
as expressly provided in this Section 8 and in Section 13, the Underwriters shall pay their own
costs and expenses, including the costs and expenses of their counsel, any transfer taxes on the
Stock which they may sell and the expenses of advertising any offering of the Stock made by the
Underwriters.
9. Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters
hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations
and warranties of the Company and the Selling Stockholders contained herein, to the performance by
the Company and the Selling Stockholders of their respective obligations hereunder, and to each of
the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with
Section 6(a)(i); the Company shall have complied with all filing requirements applicable to
any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order
suspending the effectiveness of the Registration Statement or preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no
proceeding or examination for such purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to
such Delivery Date that the Registration Statement, the Prospectus or the Pricing
23
Disclosure Package, or any amendment or supplement thereto, contains an untrue
statement of a fact which, in the opinion of Xxxxx Xxxx & Xxxxxxxx, 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.
(c) All corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Custody Agreements, the Powers of Attorney, the
Stock, the Registration Statement, the Prospectus and any Issuer Free Writing 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 and the Selling Stockholders shall have furnished to such
counsel all documents and information that they may reasonably request to enable them to
pass upon such matters.
(d) Xxxxx Xxxxxx LLP shall have furnished to the Representatives its written opinion,
as counsel to the Company, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives, substantially in the form
attached hereto as Exhibit B-1.
(e) The general counsel of the Company shall have furnished to the Representatives its
written opinion, as counsel to the Company, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to the Representatives,
substantially in the form attached hereto as Exhibit B-2.
(f) The respective counsel for each of the Selling Stockholders shall have furnished to
the Representatives their written opinion, as counsel to each of the Selling Stockholders
for whom they are acting as counsel, addressed to the Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to the Representatives, substantially in
the form attached hereto as Exhibit B-3.
(g) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters, such opinion or opinions, dated such Delivery Date, with respect to the
issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing
Disclosure Package and other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Representatives shall have received
from PricewaterhouseCoopers a letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the date hereof (i) 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 of the Commission, and (ii) stating, as of
24
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 Pricing
Disclosure Package, as of a date not more than three 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.
(i) With respect to the letter of PricewaterhouseCoopers referred to in the preceding
paragraph and delivered to the Representatives concurrently with the execution of this
Agreement (the “initial letter”), the Company shall have furnished to the Representatives a
letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and
dated such Delivery Date (i) 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 of the
Commission, (ii) 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 Prospectus, as of a date not more than three 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
(iii) confirming in all material respects the conclusions and findings set forth in the
initial letter.
(j) At the time of execution of this Agreement, the Representatives shall have received
from Ernst & Young LLP a letter, in form and substance satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof (i) 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 of the Commission, and (ii) 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 Pricing Disclosure Package, as of a
date not more than three 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.
(k) With respect to the letter of Ernst & Young LLP referred to in the preceding
paragraph and delivered to the Representatives concurrently with the execution of this
Agreement (the “initial letter”), the Company shall have furnished to the Representatives a
letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and
dated such Delivery Date (i) 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 of the
Commission, (ii) 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 Prospectus, as of a date not more than three days
prior to the date of the bring-down letter), the conclusions and
25
findings of such firm with respect to the financial information and other matters
covered by the initial letter and (iii) confirming in all material respects the conclusions
and findings set forth in the initial letter.
(l) The Company shall have furnished to the Representatives a certificate, dated such
Delivery Date, of its Chief Executive Officer and its Chief Financial Officer stating that:
(i) The representations and warranties of the Company in Section 1 are true and
correct on and as of such Delivery Date, and the Company has complied with all its
agreements contained herein and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued; and no proceedings or examination for that purpose have been
instituted or, to the knowledge of such officers, threatened; and
(iii) They have carefully examined the Registration Statement, the Prospectus
and the Pricing Disclosure Package, and, to their knowledge after due inquiry, (A)
(1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of
its date and on the applicable Delivery Date, or (3) the Pricing Disclosure Package,
as of the Applicable Time, did not and do not contain any untrue statement of a
material fact and did not and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (except in the case of
the Registration Statement, in the light of the circumstances under which they were
made) not misleading, and (B) since the Effective Date, no event has occurred that
should have been set forth in a supplement or amendment to the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so
set forth;
(m) Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on
behalf of the Selling Stockholders) shall have furnished to the Representatives on such
Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the
Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that the
representations and warranties of the Selling Stockholder contained herein are true and
correct on and as of such Delivery Date and that the Selling Stockholder has complied with
all its agreements contained herein and has satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to such Delivery Date.
(n) Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on
behalf of such Selling Stockholder) shall have furnished to the Representatives on such
Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, such
Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that such
Selling Stockholder has carefully examined the Registration Statement, the Prospectus and
the Pricing Disclosure Package, and, to its knowledge, (A) (1) the
26
Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date
and on the applicable Delivery Date, and (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a material fact and did
not and do not omit to state a material fact required to be stated therein or necessary to
make the statements therein (except in the case of the Registration Statement, in the light
of the circumstances under which they were made) not misleading and (B) since the Effective
Date, no event has occurred that should have been set forth in a supplement or amendment to
the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has
not been so set forth.
(o) (i) Neither the Company nor any of its subsidiaries shall have sustained, since the
date of the latest audited financial statements included in the Pricing 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 or (ii) since such date there shall not have been any change in the
capital stock 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 financial condition,
results of operations, stockholders’ equity, properties, management, business or business
prospects of the Company and its subsidiaries taken as a whole, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Stock being delivered on such Delivery Date on the terms and
in the manner contemplated in the Prospectus.
(p) 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 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 the
settlement of such trading generally shall have been materially disrupted or minimum prices
shall have been established on any such exchange or such market by the Commission, by such
exchange 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 (iii) the
United States shall have become engaged in hostilities, there shall have been an escalation
in hostilities involving the United States, there shall have been a declaration of a
national emergency or war by the United States or there shall have occurred such a material
adverse change in general economic, political or financial conditions, including, without
limitation, as a result of terrorist activities after the date hereof (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 Representatives, impracticable or inadvisable to proceed
with the public offering or delivery of the Stock being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(q) The New York Stock Exchange shall have approved the Stock for listing, subject only
to official notice of issuance and evidence of satisfactory distribution.
27
(r) The Lock-Up Agreements between the Representatives and the officers, directors,
Selling Stockholders and stockholders of the Company set forth on Schedule 3,
delivered to the Representatives on or before the date of this Agreement, shall be in full
force and effect on such Delivery Date.
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 counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company and the Significant Subsidiaries, jointly and severally, shall
indemnify and hold harmless each Underwriter, its directors, officers and employees and each
person, if any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Stock), to which that Underwriter,
director, officer, employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in (A) any Preliminary Prospectus, the Registration Statement, the Prospectus or
in any amendment or supplement thereto, (B) any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or (C) any Permitted Issuer Information used or referred to
in any “free writing prospectus” (as defined in Rule 405) used or referred to by any
Underwriter, (D) any “road show” (as defined in Rule 433) not constituting an Issuer Free
Writing Prospectus (a “Non-Prospectus Road Show”) or (E) any Blue Sky application or other
document prepared or executed by the Company or the Significant Subsidiaries (or based upon
any written information furnished by the Company or the Significant Subsidiaries for use
therein) specifically for the purpose of qualifying any or all of the Stock under the
securities laws of any state or other jurisdiction (any such application, document or
information being hereinafter called a “Blue Sky Application”) or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or
in any Permitted Issuer Information, any Non-Prospectus Road Show or any Blue Sky
Application, any material fact required to be stated therein or necessary to make the
statements therein (except in the case of the Registration Statement, in light of the
circumstances under which they were made) not misleading, and shall reimburse each
Underwriter and each such director, officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Underwriter, director,
officer, employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and the Significant Subsidiaries
shall not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the
28
Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement
thereto or in any Permitted Issuer Information, any Non-Prospectus Road Show or any Blue Sky
Application, in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information consists solely of the
information specified in Section 10(f). The foregoing indemnity agreement is in addition to
any liability which the Company and the Significant Subsidiaries may otherwise have to any
Underwriter or to any director, officer, employee or controlling person of that Underwriter.
(b) The Selling Stockholders, severally in proportion to the number of shares of Stock
to be sold by each of them hereunder, shall indemnify and hold harmless each Underwriter,
its directors, officers and employees, and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to purchases and sales of
Stock), to which that Underwriter, director, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Permitted Issuer Information, any Non-Prospectus
Road Show, any Blue Sky Application or any “free writing prospectus” (as defined in Rule
405), prepared by or on behalf of the Selling Stockholder or used or referred to by the
Selling Stockholder in connection with the offering of the Stock in violation of Section
7(d) (a “Selling Stockholder Free Writing Prospectus”), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted
Issuer Information, any Non-Prospectus Road Show, any Blue Sky Application or any Selling
Stockholder Free Writing Prospectus, any material fact required to be stated therein or
necessary to make the statements therein (except in the case of the Registration Statement,
in light of the circumstances under which they were made) not misleading, and shall
reimburse each Underwriter, its directors, officers and employees and each such controlling
person promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, its directors, officers and employees or controlling persons in connection with
investigating or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred or (iii) any breach of any representation
or warranty of the Selling Stockholders in this Agreement or any certificate or other
agreement delivered pursuant hereto or contemplated hereby. The liability of the Selling
Stockholder under the indemnity agreement contained in this paragraph shall be limited to an
amount equal to the total gross proceeds from the offering of the shares of the Stock
purchased under the Agreement received by the Selling Stockholder, as set forth in the table
on the cover page of the Prospectus. The foregoing indemnity agreement is in addition to
any liability that the Selling Stockholders
29
may otherwise have to any Underwriter or any officer, employee or controlling person of
that Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, each Selling Stockholder, their respective directors (including any person who,
with his or her consent, is named in the Registration Statement as about to become a
director of the Company), officers employees and agents, and each person, if any, who
controls the Company or such Selling Stockholder within the meaning of Section 15 of the
Securities Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company, such Selling Stockholder or any such
director, officer, employee, agent or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any
Non-Prospectus Road Show or Blue Sky Application, or (ii) the omission or alleged omission
to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any
Non-Prospectus Road Show or Blue Sky Application, any 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 concerning
such Underwriter furnished to the Company through the Representatives by or on behalf of
that Underwriter specifically for inclusion therein, which information is limited to the
information set forth in Section 10(f). The foregoing indemnity agreement is in addition to
any liability that any Underwriter may otherwise have to the Company, such Selling
Stockholder or any such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this Section 10 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Section 10, notify
the indemnifying party in writing of the claim or 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 10 except to the extent it has been
materially prejudiced by such failure and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 10. If any such claim or 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
thereof with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the indemnified party
under this Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
30
reasonable costs of investigation; provided, however, that the indemnified party shall
have the right to employ counsel to represent jointly the indemnified party and those other
indemnified parties and their respective directors, officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of which
indemnity may be sought under this Section 10 if (i) the indemnified party and the
indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to the indemnified party;
(iii) the indemnified party and its directors, officers, employees and controlling persons
shall have reasonably concluded that there may be legal defenses available to them that are
different from or in addition to those available to the indemnifying party or (iv) the named
parties in any such proceeding (including any impleaded parties) include both the
indemnified parties or their respective directors, officers, employees or controlling
persons, on the one hand, and the indemnifying party, on the other hand, and representation
of both sets of parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, and in any such event the fees and expenses of
such separate counsel shall be paid by the indemnifying party. No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not include any
findings of fact or admissions of fault or culpability as to the indemnified party, or (ii)
be liable for any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment for the plaintiff in any such action, 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. Notwithstanding
clause (ii) of the foregoing sentence, if at any time an indemnified party shall have
requested that an indemnifying party reimburse the indemnified party for fees and expenses
of counsel as contemplated by this paragraph, the indemnifying party shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the indemnifying party of such request and
(ii) the indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 10 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under Section 10(a),
10(b), 10(c), 10(g) or 10(h) in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party shall, in lieu
of indemnifying such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
31
benefits received by the Company and the Selling Stockholders, on the one hand, and the
Underwriters, on the other, from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholders, on the one hand, and
the Underwriters, on the other, with respect to the statements or omissions that resulted in
such loss, claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other, with respect to
such offering shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Stock purchased under this Agreement (before deducting expenses)
received by the Company and the Selling Stockholders, as set forth in the table on the cover
page of the Prospectus, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of the Stock purchased
under this Agreement, as set forth in the table on the cover page of the Prospectus, on the
other hand. The relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling Stockholders or
the Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 10(e) 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 or liability, or action in respect thereof, referred to above in this Section
10(e) shall be deemed to include, for purposes of this Section 10(e), 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 Section 10(e),
no Underwriter shall be required to contribute any amount in excess of the amount by which
the net proceeds from the sale of the Stock underwritten by it exceeds the amount of any
damages that such Underwriter has otherwise paid or become liable to pay by reason of any
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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute as provided in this Section
10(e) are several in proportion to their respective underwriting obligations and not joint.
(f) The Underwriters severally confirm and the Company and each Selling Stockholder
acknowledges and agrees that the statements regarding delivery of shares by the Underwriters
set forth on the cover page of, and the concession and reallowance figures and the paragraph
relating to stabilization by the Underwriters appearing under the caption “Underwriting” in
the Pricing Disclosure Package and the Prospectus are
32
correct and constitute the only information concerning such Underwriters furnished in
writing to the Company by or on behalf of the Underwriters specifically for inclusion in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto or in any Non-Prospectus Road Show.
(g) The Company shall indemnify and hold harmless [ ] (including their directors,
officers and employees) and each person, if any, who controls [ ] within the meaning of
Section 15 of the Securities Act (“Representative’s Entities”), from and against any loss,
claim, damage or liability or any action in respect thereof to which any of the
Representative’s Entities may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, liability or action (i) arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact contained in any material
prepared by or with the approval of the Company for distribution to Directed Share
Participants in connection with the Directed Share Program or any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein (except in the case of the Registration Statement, in light of the
circumstances under which they were made) not misleading, (ii) arises out of, or is based
upon, the failure of the Directed Share Participant to pay for and accept delivery of
Directed Shares that the Directed Share Participant agreed to purchase or (iii) is otherwise
related to the Directed Share Program; provided that the Company shall not be liable under
this clause (iii) for any loss, claim, damage, liability or action that is determined in a
final judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Representative’s Entities. The Company shall
reimburse the Representative’s Entities promptly upon demand for any legal or other expenses
reasonably incurred by them in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such expenses are
incurred.
(h) Without limitation of and in addition to its obligations under the other paragraphs
of this Section 10, the Company agrees to indemnify and hold harmless [ ] (in
the capacity described in this paragraph, the “Independent Underwriter”), its directors,
officers and employees and each person who controls Independent Underwriter within the
meaning of Section 15 of the Securities Act from and against any and all loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales of Stock)
to which the Independent Underwriter, director, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, the Independent Underwriter’s acting as
a “qualified independent underwriter” (within the meaning of FINRA Conduct Rule 2720) in
connection with the offering contemplated by this Agreement, and agrees to reimburse each
such indemnified party promptly upon demand for any legal or other expenses reasonably
incurred by them in connection with investigating or defending or preparing to defend any
such loss, claim, damage, liability or action; provided, however, that the Company shall not
be liable in any such case to the extent that it is determined in a final judgment by a
court of
33
competent jurisdiction that such loss, claim, damage, liability or action resulted
directly from the gross negligence or willful misconduct of the Independent Underwriter.
The relative benefits received by the Independent Underwriter with respect to the offering
contemplated by this Agreement shall, for purposes of Section 10(e), be deemed to be equal
to the compensation received by the Independent Underwriter for acting in such capacity. In
addition, notwithstanding the provisions of Section 10(e), the Independent Underwriter shall
not be required to contribute any amount in excess of the compensation received by the
Independent Underwriter for acting in such capacity.
11. Defaulting Underwriters. If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Stock that the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of shares of the Firm
Stock set forth opposite the name of each remaining non-defaulting Underwriter in Schedule
1 hereto bears to the total number of shares of the Firm Stock set forth opposite the names of
all the remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however, that
the remaining non-defaulting Underwriters shall not be obligated to purchase any of the Stock on
such Delivery Date if the total number of shares of the Stock that the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the total number of shares
of the Stock to be purchased on such Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the number of shares of the Stock that it
agreed to purchase on such Delivery Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the Stock to be purchased on
such Delivery Date. If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares that the defaulting Underwriter or Underwriters
agreed but failed to purchase on such Delivery Date, this Agreement (or, with respect to any Option
Stock Delivery Date, the obligation of the Underwriters to purchase, and of the Company to sell,
the Option Stock) shall terminate without liability on the part of any non-defaulting Underwriter
or the Company or the Selling Stockholders, except that the Company will continue to be liable for
the payment of expenses to the extent set forth in Sections 8 and 13. As used in this Agreement,
the term “Underwriter” includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto that, pursuant to this Section 11,
purchases Stock that a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company and the Selling Stockholders for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Stock of a defaulting or withdrawing
Underwriter, either the Representatives or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
34
12. Termination. The obligations of the Underwriters hereunder may be terminated by the
Representatives by notice given to and received by the Company and the Selling Stockholders prior
to delivery of and payment for the Firm Stock if, prior to that time, any of the events described
in Sections 9(o) and 9(p) shall have occurred or if the Underwriters shall decline to purchase the
Stock for any reason permitted under this Agreement.
13. Reimbursement of Underwriters’ Expenses. If (a) the Company or any Selling Stockholder
shall fail to tender the Stock for delivery to the Underwriters for any reason or (b) the
Underwriters shall decline to purchase the Stock for any reason permitted under this Agreement,
then the Company and the Selling Stockholders will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by the Underwriters
in connection with this Agreement and the proposed purchase of the Stock, and upon demand, the
Company and the Selling Stockholders shall pay the full amount thereof to the Representatives. If
this Agreement is terminated pursuant to Section 11 by reason of the default of one or more
Underwriters, neither the Company nor any Selling Stockholder shall be obligated to reimburse any
defaulting Underwriter on account of those expenses.
14. Research Analyst Independence. The Company acknowledges that the Underwriters’ research
analysts and research departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the offering that differ from
the views of their respective investment banking divisions. The Company and the Selling
Stockholders hereby waive and release, to the fullest extent permitted by law, any claims that the
Company or the Selling Stockholders may have against the Underwriters with respect to any conflict
of interest that may arise from the fact that the views expressed by their independent research
analysts and research departments may be different from or inconsistent with the views or advice
communicated to the Company or the Selling Stockholders by such Underwriters’ investment banking
divisions. The Company and the Selling Stockholders acknowledge that each of the Underwriters is a
full service securities firm and as such from time to time, subject to applicable securities laws,
may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
15. No Fiduciary Duty. The Company and the Selling Stockholders acknowledge and agree that in
connection with this offering, sale of the Stock or any other services the Underwriters may be
deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances previously or subsequently
made by the Underwriters: (i) no fiduciary or agency relationship between the Company, the Selling
Stockholders and any other person, on the one hand, and the Underwriters, on the other, exists;
(ii) the Underwriters are not acting as advisors, expert or otherwise, to either the Company or the
Selling Stockholders, including, without limitation, with respect to the determination of the
public offering price of the Stock, and such relationship between the Company and the Selling
Stockholders, on the one hand, and the Underwriters, on the other, is entirely and solely
commercial, based on arms-length negotiations;
35
(iii) any duties and obligations that the Underwriters may have to the Company or the Selling
Stockholders shall be limited to those duties and obligations specifically stated herein; and (iv)
the Underwriters and their respective affiliates may have interests that differ from those of the
Company and the Selling Stockholders. The Company and the Selling Stockholders hereby waive any
claims that the Company or the Selling Stockholders may have against the Underwriters with respect
to any breach of fiduciary duty in connection with this offering.
16. Notices, Etc. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile
transmission to (i) Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: LCD-IBD, and (ii) Xxxxxx Brothers Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Registration (Fax:
000-000-0000), with a copy, in the case of any notice pursuant to Section 8(c), to
the Director of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Fax: 000-000-0000);
(b) if to the Company, shall be delivered or sent by mail or facsimile
transmission to the address of the Company set forth in the Registration Statement,
Attention: • (Fax: •); and
(c) if to any Selling Stockholders, shall be delivered or sent by mail or
facsimile transmission to such Selling Stockholder at the address set forth on
Schedule 2 hereto.
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Company and the Selling Stockholders shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Underwriters by the
Representatives, and the Company and the Underwriters shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Selling Stockholders by the
Custodian.
17. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, the Selling Stockholders and their respective
personal representatives and successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company and the Selling Stockholders contained in this Agreement
shall also be deemed to be for the benefit of the directors, officers and employees of the
Underwriters and each person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained in
Section 10(c) of this Agreement shall be deemed to be for the benefit of the directors of the
Company, the officers of the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be
36
construed to give any person, other than the persons referred to in this Section 17, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
18. Survival. The respective indemnities, representations, warranties and agreements of the
Company, the Selling Stockholders and the Underwriters contained in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment
for the Stock and shall remain in full force and effect, regardless of any investigation made by or
on behalf of any of them or any person controlling any of them.
19. Definition of the Terms “Business Day” and “Subsidiary.” For purposes of this Agreement,
(a) “business day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on
which banking institutions in New York are generally authorized or obligated by law or executive
order to close and (b) “subsidiary” has the meaning set forth in Rule 405.
20. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
21. Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same instrument.
22. Headings. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
37
If the foregoing correctly sets forth the agreement among the Company, the Selling
Stockholders and the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
| Very truly yours, SOI HOLDINGS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE SELLING STOCKHOLDERS NAMED IN SCHEDULE 2 TO THIS AGREEMENT |
||||
| By: | ||||
| Attorney-in-Fact | ||||
| Name: Title: |
||||
Accepted:
Credit Suisse Securities (USA) LLC
Xxxxxx Brothers Inc.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
of the several Underwriters named
in Schedule 1 hereto
By Credit Suisse Securities (USA) LLC
By: |
||||
| Authorized Representative | ||||
| By Xxxxxx Brothers Inc. | ||||
By: |
||||
| Authorized Representative | ||||
SCHEDULE 1
| Number of Shares of | ||||
| Underwriters | Firm Stock | |||
Total |
||||
SCHEDULE 2
| Number of Shares of | ||||
| Name and Address of Selling Stockholder | Option Stock | |||
Total |
||||
SCHEDULE 3
PERSONS DELIVERING LOCK-UP AGREEMENTS
Directors
Officers
Stockholders
SCHEDULE 4
ORALLY CONVEYED PRICING INFORMATION
1. [Public offering price]
2. [Number of shares offered]
Exhibit A
LOCK-UP LETTER AGREEMENT
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the several
Underwriters named in Schedule 1
Underwriters named in Schedule 1
Ladies and Gentlemen:
The undersigned understands that you and certain other firms (the “Underwriters”) propose to
enter into an Underwriting Agreement (the “Underwriting Agreement”) providing for the purchase by
the Underwriters of shares (the “Stock”) of Common Stock, par value $0.01 per share (the “Common
Stock”), of SOI Holdings, Inc., a Delaware corporation (the “Company”), and that the Underwriters
propose to reoffer the Stock to the public (the “Offering”).
In consideration of the execution of the Underwriting Agreement by the Underwriters, and for
other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the
prior written consent of Credit Suisse Securities (USA) LLC and Xxxxxx Brothers Inc., on behalf of
the Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell,
pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at any time in the future of) any
shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to
be beneficially owned by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and shares of Common Stock that may be issued upon exercise of
any options or warrants) or securities convertible into or exercisable or exchangeable for Common
Stock, (2) enter into any swap or other derivatives transaction that transfers to another, in whole
or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether
any such transaction described in clause (1) or (2) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise, (3) make any demand for or exercise any right or
cause to be filed a registration statement, including any amendments thereto, with respect to the
registration of any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or any other securities of the Company or (4) publicly disclose the
intention to do any of the foregoing, for a period commencing on the date hereof and ending on the
180th day after the date of the Prospectus relating to the Offering (such 180-day period, the
“Lock-Up Period”). Notwithstanding the foregoing, the undersigned may transfer the undersigned’s
shares of Common Stock (i) as a bona
A-1
fide gift or gifts, (ii) to any trust for the direct or indirect benefit of the undersigned or
the immediate family of the undersigned, provided that any such transfer shall not involve a
disposition for value, (iii) to the Company, (iv) pursuant to a qualified domestic relations order,
(v) following the death of the undersigned pursuant to the laws of descent or distribution or the
will of the undersigned or (vi) with the prior written consent of each of Credit Suisse Securities
(USA) LLC and Xxxxxx Brothers Inc., on behalf of the
Underwriters. For purposes of this Lock-Up
Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption,
not more remote than first cousin. In addition, if the undersigned is a corporation, the
corporation may transfer the capital stock of the Company to any wholly-owned subsidiary of such
corporation, and, if the undersigned is a limited liability company, the limited liability company
may transfer the capital stock of the Company to a member or affiliated limited liability company,
and, if the undersigned is a partnership, the partnership may transfer the capital stock of the
Company to a partner or affiliated partnership. It shall be a condition to any transfer described
in this paragraph that (i) the transferee/donee execute an agreement stating that the transferee is
receiving and holding such capital stock subject to the provisions of this Lock-Up Letter Agreement
and there shall be no further transfer of such capital stock except in accordance with this
agreement, (ii) no filing by any party (donor, donee, transferor or transferee) under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required to be made as a
direct result of such transfer and no such filing shall be voluntarily made in connection with such
transfer or distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or 13D-A
or 13G-A) made after the expiration of the 180-day period referred to above), (iii) each party
(donor, donee, transferor or transferee) shall agree to not voluntarily make any public
announcement of the transfer or disposition, and (iv) the undersigned notifies Credit Suisse
Securities (USA) LLC and Xxxxxx Brothers Inc. at least two business days prior to the proposed
transfer or disposition.
Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the
Company issues an earnings release or material news or a material event relating to the Company
occurs or (2) 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,
then the restrictions imposed by this Lock-Up Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings release or the
announcement of the material news or the occurrence of the material event, unless waive such
extension in writing. The undersigned hereby further agrees that, prior to engaging in any
transaction or taking any other action that is subject to the terms of this Lock-Up Letter
Agreement during the period from the date of this Lock-Up Letter Agreement to and including the
34th day following the expiration of the Lock-Up Period, it will give notice thereof to
the Company and will not consummate such transaction or take any such action unless it has received
written confirmation from the Company that the Lock-Up Period (as such may have been extended
pursuant to this paragraph) has expired.
A-2
In furtherance of the foregoing, the Company and its transfer agent are hereby authorized to
decline to make any transfer of securities if such transfer would constitute a violation or breach
of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies the Underwriters that it does not intend to
proceed with the Offering, if the Underwriting Agreement does not become effective, or if the
Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Stock, the undersigned will be
released from its obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters will proceed with the
Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Company, the Selling Stockholders named therein and
the Underwriters.
[Signature page follows]
A-3
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will
execute any additional documents necessary in connection with the enforcement hereof. Any
obligations of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
| Very truly yours, |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Dated:
A-4
EXHIBIT B-1
FORM OF OPINION OF ISSUER’S COUNSEL
[Intentionally Omitted]
X-0-0
XXXXXXX X-0
FORM OF OPINION OF COMPANY’S GENERAL COUNSEL
[Intentionally Omitted]
B-2-1
EXHIBIT B-3
FORM OF OPINION OF SELLING STOCKHOLDER(S)’ COUNSEL
[Intentionally Omitted]
B-3-1
