5,300,000 SHARES FLUIDIGM CORPORATION COMMON STOCK, PAR VALUE $0.001 PER SHARE UNDERWRITING AGREEMENT
September [__], 2008
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
Leerink Swan LLC
Pacific Growth Equities LLC
UBS Securities LLC
Leerink Swan LLC
Pacific Growth Equities LLC
| c/o | Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
Fluidigm Corporation, a Delaware corporation (the “Company”), proposes to issue and sell to
the several Underwriters named in Schedule I hereto (the “Underwriters”) 5,300,000 shares of its
common stock, par value $0.001 per share (the “Firm Shares”). The Company also proposes to issue
and sell to the several Underwriters not more than an additional 795,000 shares of its common
stock, par value $0.001 per share (the “Additional Shares”) if and to the extent that you, as
Manager of the offering, shall have determined to exercise, on behalf of the Underwriters, the
right to purchase such shares of common stock granted to the Underwriters in Section 2 hereof. The
Firm Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.” The
shares of common stock, par value $0.001 per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the “Common Stock.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, relating to the Shares. The registration statement
as amended at the time it becomes effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the
“Registration Statement”; the prospectus in the form first used to confirm sales of Shares (or in
the form first made available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus.” If
the Company has filed an abbreviated registration statement to register additional shares of Common
Stock pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”),
then any reference herein to the term “Registration Statement” shall be deemed to include such Rule
462 Registration Statement.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule
405 under the Securities Act, “Time of Sale Prospectus” means the preliminary prospectus together with the free writing prospectuses, if any, each identified in
Schedule II hereto, and “broadly available road show” means a “bona fide electronic road show” as
defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction
to any person. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time
of Sale
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Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference
therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with
each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the Company’s knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not contain any 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, (ii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus
does not, and at the time of each sale of the Shares in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in
Section 4), the Time of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any 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, (iv) each broadly available road show, if any, when considered together
with the Time of Sale Prospectus, does not contain any 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 and (v) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any 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, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions in the Registration
Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you expressly for use
therein.
(c) Any statistical and market-related data included in the Registration Statement, the Time
of Sale Prospectus and the Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and is consistent with the sources from which they are
derived.
(d) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing
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prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, furnished to you before first
use, the Company has not prepared, used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus.
(e) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(f) Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each
jurisdiction, to the extent that the concept of “good standing” is applicable under the laws of
such jurisdiction, in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued shares of capital stock of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and are owned directly by the
Company, free and clear of all liens, encumbrances, equities or claims.
(g) This Agreement has been duly authorized, executed and delivered by the Company.
(h) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in the Section entitled “Description of Capital Stock” in each of the
Time of Sale Prospectus and the Prospectus.
(i) The shares of Common Stock outstanding prior to the issuance of the Shares have been duly
authorized and are validly issued, fully paid and non-assessable.
(j) The Shares have been duly authorized and, when issued, delivered and paid for in
accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be subject to any preemptive or similar rights which have
not otherwise been waived.
(k) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any provision of (i) applicable law; (ii) the
certificate of incorporation or bylaws of the Company; (iii) any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole; or (iv) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, except that in the case of
clause (iii) as would not have a material adverse effect on the Company and its subsidiaries, taken
as a whole, or on the power or ability of the Company to perform its
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obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of its obligations under
this Agreement, except such as may be required by the securities or Blue Sky laws of the various
states or the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) in
connection with the offer and sale of the Shares.
(l) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
(m) There are no legal or governmental proceedings pending or to the Company’s knowledge
threatened to which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and proceedings that
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or
on the power or ability of the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required
to be described in the Registration Statement or the Prospectus and are not so described; and there
are no statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(n) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied as to form when so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(o) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not
be, required to register as an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended.
(p) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, be reasonably likely to have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
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related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, be reasonably likely to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(r) The accountants who certified the financial statements and supporting schedules included
in the Registration Statement are independent public accountants with respect to the Company as
required by the Securities Act and the applicable rules and regulations of the Commission
thereunder.
(s) The financial statements of the Company filed with the Commission as a part of the
Registration Statement and included in each of the Time of Sale Prospectus and the Prospectus
present fairly in all material respects the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the results of their statement of operations,
stockholders’ equity and cash flows for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles as applied in the United
States (“GAAP”) applied on a consistent basis throughout the periods involved. The financial data
set forth in the Prospectus under the captions “Prospectus Summary — Summary Consolidated
Financial Data,” “Selected Consolidated Financial Data” and “Capitalization” present fairly in all
material respects the information set forth therein on a basis consistent with that of the audited
financial statements contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(t) Except as described in the Time of Sale Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect to any securities of
the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration Statement,
except as otherwise have been waived in connection with the issuance and sale of the Shares
contemplated hereby.
(u) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, representative, employee or affiliate of the Company or of any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a
violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), including, without limitation, taking any action in
furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or
giving of money, property, gift or anything else of value, directly or indirectly, to any “foreign
official” (as such term is defined in the FCPA) or to any foreign political party or official
thereof or any candidate for foreign political office in contravention of the FCPA.
(v) The operations of the Company and those of its subsidiaries are, and have been conducted,
in compliance with (i) all applicable financial recordkeeping and reporting requirements, including
those of the Bank Secrecy Act of 1970 and Title III of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT
Act) except where noncompliance would not, singly or in the aggregate, be reasonably likely to have
a material adverse effect on the Company and its subsidiaries, taken as a whole, and (ii) to the
best of the Company’s knowledge, all other applicable anti-money laundering statutes of all
jurisdictions, the rules and regulations
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thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (the “Anti-Money
Laundering Laws”). 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 (i) the Bank Secrecy Act of 1970 and Title III of the USA PATRIOT Act or (ii) the Anti-Money
Laundering Laws is pending or, to the best of the Company’s knowledge, threatened.
(w) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is an
individual or entity (“Person”) that is currently the subject of any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC-administered
sanctions”); and the Company will not directly or indirectly use the proceeds of the offering of
Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other Person, to fund activities of or business with any Person, or in any
country or territory, that is the subject of OFAC-administered sanctions, or in a manner that would
otherwise cause any Person (including any Person involved in or facilitating the offering of the
Shares, whether as underwriter, advisor, or otherwise) to violate any OFAC-administered sanctions.
(x) Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction; (ii) the Company has not purchased any of its outstanding
capital stock other than capital stock from its employees or other service providers in connection
with the termination of their service pursuant to employee benefit plans disclosed in the
Registration Statement or agreements to provide employment or consulting services to the Company,
nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock
other than ordinary and customary dividends; and (iii) there has not been any material change in
the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, except in
each case as described in each of the Registration Statement, the Time of Sale Prospectus and the
Prospectus, respectively.
(y) Neither the Company nor its subsidiaries own any real property. The Company and its
subsidiaries have good and marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries taken as a whole, in each case free
and clear of all liens, encumbrances and defects of title except such as are described in the Time
of Sale Prospectus or do not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and its subsidiaries; and any
real property and buildings held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such property and buildings by
the Company and its subsidiaries, in each case except as described in the Time of Sale Prospectus.
(z) Except as described in the Registration Statement, Time of Sale Prospectus, and the
Prospectus: (i) the Company owns, or possesses, or has rights to, or can acquire on reasonable
terms all Intellectual Property reasonably necessary to conduct the business of the
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Company as described in the Registration Statement, Time of Sale Prospectus, and the Prospectus (“Company
Intellectual Property”), except where the failure to own or possess or the inability to acquire on
reasonable terms any of the foregoing would not, individually or in the aggregate, have a material
adverse effect on the Company and its susidiaries taken as a whole; (ii) to the Company’s
knowledge, there is no infringement, misappropriation, or violation by third parties of any Company
Intellectual Property, which individually or in the aggregate would have a material adverse effect
of the Company and its subsidiaries taken as a whole; (iii) neither the Company nor any of its
subsidiaries has received any written threat or notice of action, suit, proceeding, or claim by
others challenging the Company’s rights in or to the Company Intellectual Property, nor is there
any such action or proceeding currently pending; (iv) neither the Company nor any of its
subsidiaries have received any written threat or notice of action, suit, proceeding, or claim by
others claiming the invalidity or unenforceability of the Company Intellectual Property, nor is
there any such action or proceeding currently pending and (v) neither the Company nor any of its
subsidiaries has received any written threat or notice of infringement of or conflict with asserted rights of
others with respect to any Intellectual Property which, with respect to (iii) through (v),
individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the Company and its subsidiaries taken as a whole. The
term “Intellectual Property” as used in this section means all material, valid, and enforceable
patents, patent applications, trade and service marks, trade and service xxxx registrations, trade
names, copyrights, licenses, inventions, trade secrets, technology, and know-how.
(aa) No material labor dispute with the employees of the Company or any of its subsidiaries
exists, except as described in the Time of Sale Prospectus, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or contractors that would be
reasonably likely to have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(bb) The Company and each of its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; neither the Company nor any of its subsidiaries has been
refused any insurance coverage sought or applied for; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not be reasonably likely to have a
material adverse effect on the Company and its subsidiaries, taken as a whole, except as described
in the Time of Sale Prospectus.
(cc) The Company and its subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, except where the failure to obtain such certificates, authorizations,
or permits would not, individually or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse effect on
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the Company and its subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus.
(dd) All United States federal income tax returns of the Company and its subsidiaries required
by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which
are due and payable, have been paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided. The Company and its
subsidiaries have filed all other tax returns that are required to have been filed by them pursuant
to applicable foreign, state, local or other law except insofar as the failure to file such returns
would not, singly or in the aggregate, result in a material adverse effect on the Company and its
subsidiaries taken as a whole, and has paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Company and its subsidiaries, except for such taxes, if any, as are
being contested in good faith and as to which adequate reserves have been provided.
(ee) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as described in the Time of
Sale Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i)
no material weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (ii) no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.
(ff) The Company has taken all necessary actions to ensure that, upon the effectiveness of the
Registration Statement, it will be in compliance in all material respects with all provisions of
the Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations promulgated thereunder or implementing
the provisions thereof (the “Xxxxxxxx-Xxxxx Act”) that are then in effect and which the Company is
required to comply with as of the effectiveness of the Registration Statement, and is actively
taking steps to ensure that it will be in compliance with other provisions of the Xxxxxxxx-Xxxxx
Act which the Company is not required to comply with, upon the applicability of such provisions to
the Company, at all times after the effectiveness of the Registration Statement.
(gg) Except with respect to any such failure to comply that has been corrected by the date of
this Agreement, or would not, individually or in the aggregate, have a material adverse effect on
the Company, (i) all stock option awards granted by the Company have been duly authorized by all
necessary corporate action, including, as applicable, approval by the board of directors of the
Company or a duly authorized committee thereof, including approval of the exercise or purchase
price or the methodology for determining the exercise or purchase price and the substantive terms
of the stock options awards, and any required stockholder approval by the necessary number of votes
or written consents; and (ii) no stock option awards granted by the
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Company have been retroactively
granted, or the exercise or purchase price of any stock option award determined retroactively;
there is no action, suit, proceeding, formal inquiry or formal investigation before or brought by
any court or governmental agency or body, domestic or foreign, or the Nasdaq Global Market or any
self regulatory organization, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company
in connection with any stock option awards granted by the Company.
(hh) Except as described in the Time of Sale Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock option plans or other
employee compensation plans or pursuant to outstanding options, rights or warrants.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $ a share (the “Purchase Price”).
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to 795,000
Additional Shares at the Purchase Price. You may exercise this right on behalf of the Underwriters
in whole or from time to time in part by giving written notice not later than 30 days after the
date of this Agreement. Any exercise notice shall specify the number of Additional Shares to be
purchased by the Underwriters and the date on which such shares are to be purchased. Each purchase
date must be at least one business day after the written notice is given and may not be earlier
than the closing date for the Firm Shares nor later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in Section 4 hereof solely for the purpose
of covering over-allotments made in connection with the offering of the Firm Shares. On each day,
if any, that Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the same proportion to
the total number of Additional Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
3. Terms of Public Offering. The Company is advised by you that the Underwriters propose to
make a public offering of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Company
is further advised by you that the Shares are to be offered to the public initially at $ a
share (the “Public Offering Price”) and to certain dealers selected by you at a price that
represents a concession not in excess of $ a share under the Public Offering Price, and that
any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $ a share, to any Underwriter or to
certain other dealers.
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4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City time, on ,
2008, or at such other time on the same or such other date, not later than , 2008, as
shall be designated in writing by you. The time and date of such payment are hereinafter referred
to as the “Closing Date.”
Payment for any Additional Shares shall be made to the Company in Federal or other funds
immediately available in New York City against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 2 or at such other time on the same or
on such other date, in any event not later than , 2008, as shall be designated in writing by
you.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly paid, against
payment of the Purchase Price therefor.
5. Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the
Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for
the Shares on the Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth in
the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
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(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, outside counsel for the Company, dated the Closing
Date, substantially in the form attached hereto as Exhibit A, which shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxx and
Xxxxxxxx and Crew LLP, outside intellectual property counsel for the Company, dated the Closing
Date, substantially in the form attached hereto as Exhibit B.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx
LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as the
Underwriters may reasonably request.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants,
containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided
that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date
hereof.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto,
between you and all stockholders, optionholders, officers and directors of the Company other than
those persons listed on Schedule III attached hereto relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force and effect on the
Closing Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Shares.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
11
(a) To furnish to you, without charge, five signed copies of the Registration Statement
(including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time
of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which you reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as
so amended or supplemented will not, in the light of the circumstances under which they were made
when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that
the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will
comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion
of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to
12
comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request, other than in jurisdictions which would
require the Company as a condition thereto to qualify to do business or to file a general consent
to service of process in any such jurisdiction.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and expenses of the
Company’s counsel and the Company’s accountants in connection with the registration and delivery of
the Shares under the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the
Company and amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment
memorandum in connection with the offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and sale under state
securities laws as provided in Section 6(g) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the
review and qualification of the offering of the Shares by the FINRA, (v) all fees and expenses in
connection with the preparation and filing of the registration statement on Form 8-A relating to
the Common Stock and all costs and expenses incident to listing the Shares on the NASDAQ Global
Market, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges
of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the marketing
of the offering of the Shares, including, without limitation, expenses associated with the
preparation or dissemination of any electronic road show, expenses associated with the production
of road show slides and graphics, fees and expenses of any
13
consultants engaged in connection with
the road show presentations with the prior approval of the Company, travel and lodging expenses of
the representatives and officers of the Company and any such consultants, and one-half of the cost
of any aircraft chartered in connection with the road show, (ix) the document production charges
and expenses associated with printing this Agreement and (x) all other costs and expenses incident
to the performance of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in this Section, Section
8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the
Underwriters will pay all of their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by them and one-half of the
cost of chartering any aircraft in connection with any road show presentation.
The Company also covenants with each Underwriter that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not, during the period
ending 180 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise or (3) file any registration statement with the
Commission relating to the offering of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) the issuance of shares of, or options to purchase shares of, Common Stock to
employees, officers, directors, advisors or consultants of the Company pursuant to employee benefit
plans disclosed in the Prospectus or an employee benefit plan assumed by the Company in a merger or
acquisition transaction, (c) the filing of a registration statement on Form S-8 for the
registration of shares of Common Stock issued pursuant to employee benefit plans disclosed in the
Prospectus or an employee benefit plan assumed by the Company in a merger or acquisition
transaction, or (d) the issuance of shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock in an amount having an aggregate value (determined as
of the date of issuance) equal to $ in connection with a merger or acquisition transaction;
provided prior to any issuance pursuant to clauses (b) or (d), the Company shall cause each
recipient of such shares or options to execute and deliver to you a “lock-up” agreement
substantially in the form of Exhibit C hereto.
Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted 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 180-day restricted period, the Company announces that
it will release earnings results during the 16-day period beginning on the last day of the 180-day
period, the restrictions imposed by this agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event. The Company shall promptly notify Xxxxxx Xxxxxxx & Co.
14
Incorporated of any earnings release, news or event that may give rise to an extension of the
initial 180-day restricted period.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter
within the meaning of Rule 405 under the Securities Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time
of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or supplement
thereto, or caused by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the
Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person
(the “indemnified party”) shall promptly notify the person against whom such indemnity may be
sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in
writing to the retention of such counsel or
15
(ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing
by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of
parties indemnified pursuant to Section 8(a), and by the
Company, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least
30 days prior to such settlement being entered into, and
(iii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
Section 8(a) or 8(b) is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand
from the offering of the Shares or (ii) if the allocation
provided by clause 8(d)(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 8(d)(i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering
of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering
Price of the Shares. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the
untrue or
16
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission. The Underwriters’ respective obligations to
contribute pursuant to this Section 8 are several in
proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in
Section 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, 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 8, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and
other statements of the Company contained in this Agreement
shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter, any
person controlling any Underwriter or any affiliate of any
Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
9. Termination. The Underwriters may terminate this
Agreement by notice given by you to the Company, if after the
execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange,
the NASDAQ Global Market, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade
(ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities
settlement, payment or clearance services in the United States
shall have occurred, (iv) any moratorium on commercial
banking activities shall have been declared by Federal or New
York State authorities or (v) there shall have occurred any
outbreak or escalation of hostilities, or any change in
financial markets or any calamity or crisis that, in your
judgment, is material and adverse and which, singly or together
with any other event specified in this clause (v), makes it, in
your judgment, impracticable or inadvisable to proceed with the
offer, sale or delivery of the
17
Shares on the terms and in the manner contemplated in the Time
of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This
Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse
to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which
such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions
that the number of Firm Shares set forth opposite their
respective names in Schedule I bears to the aggregate
number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you
may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall
the number of Shares that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such
number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and
the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of
Firm Shares to be purchased on such date, and arrangements
satisfactory to you and the Company for the purchase of such
Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the
Registration Statement, in the Time of Sale Prospectus, in the
Prospectus or in any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares
and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the
aggregate number of Additional Shares to be purchased on such
Option Closing Date, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation hereunder to
purchase the Additional Shares to be sold on such Option Closing
Date or (ii) purchase not less than the number of
Additional Shares that such non-defaulting Underwriters would
have been obligated to purchase in the absence of such default.
Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of
the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company
shall be unable to perform its obligations under this Agreement,
the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering
contemplated hereunder.
18
11. Entire Agreement. (a) This Agreement,
together with any contemporaneous written agreements and any
prior written agreements (to the extent not superseded by this
Agreement) that relate to the offering of the Shares, represents
the entire agreement between the Company and the Underwriters
with respect to the preparation of any preliminary prospectus,
the Time of Sale Prospectus, the Prospectus, the conduct of the
offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the
offering of the Shares: (i) the Underwriters have acted at
arms length, are not agents of, and owe no fiduciary duties to,
the Company or any other person, (ii) the Underwriters owe
the Company only those duties and obligations set forth in this
Agreement and prior written agreements (to the extent not
superseded by this Agreement), if any, and (iii) the
Underwriters may have interests that differ from those of the
Company. The Company waives to the full extent permitted by
applicable law any claims it may have against the Underwriters
arising from an alleged breach of fiduciary duty in connection
with the offering of the Shares.
12. Counterparts. This Agreement may be signed in
two or more counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto
were upon the same instrument.
13. Applicable Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the
State of New York.
14. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be
in writing and effective only upon receipt and if to the
Underwriters shall be delivered, mailed or sent to you in care
of Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with
a copy to the Legal Department and Xxxxxx & Xxxxxxx
LLP, 000 Xxxx Xxxxxx Xxxxx 00xx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx; and if to the
Company shall be delivered, mailed or sent to 0000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Chief Executive Officer with a copy to Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., 000
Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attention:
Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxx.
Very truly yours,
FLUIDIGM CORPORATION
| By: |
|
Name:
Title:
19
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
Leerink Swan LLC
Pacific Growth Equities, LLC
Acting severally on behalf of themselves
and the several Underwriters named
in Schedule I hereto.
and the several Underwriters named
in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
| By: |
|
Name:
Title:
20
SCHEDULE I
|
Number of Firm Shares To |
||||
| Underwriter | Be Purchased | |||
|
Xxxxxx Xxxxxxx & Co. Incorporated
|
||||
|
UBS Securities LLC
|
||||
|
Leerink Swan LLC
|
||||
|
Pacific Growth Equities, LLC
|
||||
|
Total:
|
||||
I-1
SCHEDULE II
Time of
Sale Prospectus
1. Preliminary Prospectus issued September 5, 2008.
II-1
SCHEDULE III
1. Xxxxx May, Trustee, Intervivos Trust Dated 5/14/91
2. Xxxxx, Xxxx
3. Xxx, Xxxxxxx
4. Xxxxxxx, Xxxxxxx
5. Xxxxxxxx/Xxxx Family Trust Dated 6/28/99
6. Xxxxxxxxx, Xxxx
7. Xxxxxx, Xxxx
8. Xxxxxx, Xxxxxxx
9. Xxx, Xxxxx
10. Xxxxxxxx, Xxxxxx X.
11. Xxxxxx, Xxxxxxx
00. Xxx, Xxx
00. Liau, Yish xxxx
14. Xxxxx, Xxxxxxx
15. Xxxxx, Xxxxxxx X.
16. Xxxxxx, Xxx
17. XxXxxxx, Lincoln
18. Xxxxx, Xxxxxxx X.
19. Xxx and Xxxxx Xxxxxxx Revocable Trust
20. Xxxxxx, Xxxx
21. Xxxxxx, Xxxxx
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EXHIBIT A
FORM OF
OPINION OF XXXXXX XXXXXXX XXXXXXXX & XXXXXX, P.C.
A-1
EXHIBIT A
FORM OF
OPINION OF XXXXXX XXXXXXX XXXXXXXX &
XXXXXX, P.C.
1. The Company is a corporation duly incorporated and
validly existing under, and by virtue of, the laws of the State
of Delaware, and is in good standing under such laws. The
Company has the corporate power and authority to own or lease
its properties and assets and to carry on its business as
described in the Time of Sale Prospectus. The Company is
qualified to do business and is in good standing as a foreign
corporation in the State of California.
2. The authorized capital stock of the Company conforms in
all material respects as to legal matters to the description
thereof contained in each of the Time of Sale Prospectus and the
Prospectus.
3. The shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and nonassessable.
4. The Shares have been duly authorized and, when issued
and delivered and paid for in accordance with the terms of the
Underwriting Agreement, will be validly issued, fully paid and
nonassessable, and the issuance of such Shares will not be
subject to any preemptive or similar rights arising from or
pursuant to the Certificate of Incorporation or Bylaws of the
Company, or to our knowledge, any other written agreement or
instrument to which the Company or any subsidiary of the Company
is a party, other than such rights as have been duly and
properly waived.
5. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
6. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the
Underwriting Agreement do not violate any provision of
(i) applicable U.S. federal or California state law,
rule or regulation known to us to be customarily applicable to
transactions of the nature contemplated by the Underwriting
Agreement; (ii) the Delaware General Corporation Law;
(iii) the Certificate of Incorporation or Bylaws;
(iv) any Reviewed Agreements; or (v) to our knowledge,
any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company. No consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the valid execution
and delivery of the Underwriting Agreement or the performance by
the Company of its obligations thereunder, or the offer, sale,
or issuance of the Shares, except such as have been obtained or
made under the Securities Act or the Securities Exchange Act of
1934, as amended.
7. The statements included in the Time of Sale Prospectus
and the Prospectus under the captions “Description Capital
Stock,” “Material U.S. Federal Income and Estate
Tax Consequences to
Non-U.S. Holders”
and “Underwriters” (to the extent of the description
of the Underwriting Agreement), in each case insofar as such
statements constitute summaries of legal matters, documents or
proceedings referred to therein, fairly summarize in all
material respects such legal matters, documents or proceedings.
8. We do not know of any (i) legal or governmental
proceeding; (ii) U.S. federal or California state
statute or regulation; or (iii) provision of the Delaware
General Corporation Law required to be described in the
Registration Statement or the Prospectus which is not described
in all material respects therein as required nor of any
contracts or documents of a character required to be filed with
the Registration Statement that are not filed as required.
9. The Company is not, and after giving effect to the
offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus will not be, an
“investment company” as such term is defined in the
Investment Company Act.
10. The Registration Statement was declared effective under
the Securities Act on September [ ], 2008, and
the Prospectus was filed with the Commission pursuant to
Rule 424(b) under the Securities Act on
September [ ], 2008. To our knowledge, no stop
order suspending the effectiveness of the Registration Statement
or any part thereof has been issued, and, to our knowledge, no
proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
EXHIBIT B
FORM OF
OPINION OF
XXXXXXXX
AND XXXXXXXX AND CREW LLP
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EXHIBIT B
FORM OF OPINION OF XXXXXXXX AND XXXXXXXX AND CREW LLP
Based upon
and subject to the foregoing, we are of the opinion that:
1. To
our knowledge, (a) the Company is the exclusive owner of all
right, title and interest in the Fluidigm Patent Rights and CIT is
the exclusive owner of all right, title and interest in the
Fluidigm/CIT Patent Rights, with the following exceptions: five
U.S. patents and seven U.S. patent applications, and
foreign equivalents thereof, are coassigned to the Company and the
Regents of the University of California (“UC”), and one
U.S. patent application and foreign equivalents are coassigned
to the Company, CIT, UC and Siemens Medical Solutions USA, Inc.;
(c) the patent applications within the Company Patent Rights are
valid and have been recorded in the U.S. Patent and Trademark
Office (assignments in three pending patent applications have not yet
been obtained or recorded); (e) the patent applications within
the Company Patent Rights are pending and being prosecuted so as to
avoid abandonment thereof.
2. Except
as noted in the Prospectus, to our knowledge, no actions, suits,
claims or proceedings have been asserted or threatened in writing
against the Company alleging that the operation of the Company’s
business conflicts with or infringes the patent rights of any third
party.
3. To
our knowledge, no court has issued any order, judgment, decree or
injunction restricting the operation of the Company’s business on
the basis of a conflict with or infringement of the patent rights of
any third party.
4. To
our knowledge, and without having conducted a freedom to operate
analysis, we are not aware of any third party patents that would be
infringed by the Company’s manufacture, use or sale of products
described in the Prospectus.
5. To
our knowledge, and without having done any investigation beyond
review of our files in the normal course of prosecution, we are
unaware of any facts that lead us to believe that any
U.S. patents in the Company Patent Rights were not prosecuted,
or any U.S. patent applications in the Company Patent Rights are
not being prosecuted, in compliance with the duty of disclosure under
37 C.F.R.§1.56.
B-1
EXHIBIT C
FORM OF
LOCK-UP
LETTER
C-1
Fluidigm Corporation
Lock-Up Agreement
_________, 2008
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
Leerink Swan LLC
Pacific Growth Equities, LLC
UBS Securities LLC
Leerink Swan LLC
Pacific Growth Equities, LLC
| c/o | Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 |
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) proposes
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Fluidigm Corporation, a
Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by
the several Underwriters named in Schedule I to the Underwriting Agreement, including Xxxxxx
Xxxxxxx (the “Underwriters”), of shares (the “Shares”) of the Common Stock, par value $0.001 per
share, of the Company (the “Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
transactions relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering, provided that no filing under Section
16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or
shall be voluntarily made in connection with subsequent sales of Common Stock or other securities
acquired in such open market transactions, (b) transfers of shares of Common Stock or any security
convertible into Common Stock as a
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bona fide gift, (c) distributions of shares of Common Stock or any security convertible into
Common Stock to limited partners, members or stockholders of the undersigned, (d) transfers of
shares of Common Stock or any security convertible into Common Stock by will or intestacy to the
undersigned’s immediate family or to a trust, the beneficiaries of which are the undersigned and a
member or members of the undersigned’s immediate family (for purposes of this agreement, “immediate
family” shall mean any relationship by blood, marriage or adoption, not more remote than first
cousin) or (e) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act
for the transfer of shares of Common Stock, provided that such plan does not provide for the
transfer of Common Stock during the restricted period; provided further, that in the case of any
transfer or distribution pursuant to clause (b) — (d), (i) each donee or distributee shall sign and
deliver a lock-up letter substantially in the form of this letter and (ii) no filing under Section
16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock,
shall be required or shall be voluntarily made during the restricted period referred to in the
foregoing sentence
In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx
on behalf of the Underwriters, it will not, during the period commencing on the date hereof and
ending 180 days after the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the
entry of stop transfer instructions with the Company’s transfer agent and registrar against the
transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing
restrictions.
If:
| (1) | during the last 17 days of the restricted 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 restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period; |
the restrictions imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the occurrence of the material
news or material event.
The undersigned shall not engage in any transaction that may be restricted by this agreement
during the 34-day period beginning on the last day of the initial restricted period unless the
undersigned requests and receives prior written
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confirmation from the Company or Xxxxxx Xxxxxxx that the restrictions imposed by this
agreement have expired.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this agreement. The undersigned understands that the Company and the
Underwriters are relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable and shall be
binding upon the undersigned’s heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriters.
This agreement will terminate and the undersigned will be released from all of its obligations
hereunder if (a) the closing of the Public Offering shall not have occurred on or before the one
year anniversary of the date of this agreement first set forth above, or (b) (i) if the Company
withdraws the registration statement registering the Shares or (ii) the Underwriting Agreement is
executed but is terminated prior to payment for and delivery of any Shares.
This agreement shall be governed by and construed in accordance with the laws of the State of
New York, without regard to the conflict of laws principles thereof.
| Very truly yours, (List names of all individuals and entities that hold shares of Fluidigm stock) (Signature) (Name of Authorized Signatory) (Address) |
||||
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[Signature Page to Fluidigm Lock-Up Agreement]
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