HORSEHEAD HOLDING CORP. Shares of Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION VERSION
HORSEHEAD HOLDING CORP.
Shares of Common Stock
Shares of Common Stock
September 10, 2009
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
as Representative of the several Underwriters
x/x Xxxxxx, Xxxxxxxx & Company Incorporated
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs or Madams:
as Representative of the several Underwriters
x/x Xxxxxx, Xxxxxxxx & Company Incorporated
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs or Madams:
Horsehead Holding Corp., a Delaware corporation (the “Company”) confirms its agreement
with each of the underwriters listed on Schedule I hereto (collectively, the
“Underwriters”), for whom Xxxxxx, Xxxxxxxx & Company Incorporated is acting as
representative (in such capacity, the “Representative”), with respect to (i) the sale by
the Company of 7,000,000 shares (the “Firm Shares”) of common stock, par value $0.01 per
share, of the Company (the “Common Stock”), and the purchase by the Underwriters, acting
severally and not jointly, of the respective number of shares of Common Stock set forth opposite
the names of the Underwriters in Schedule I hereto, and (ii) the grant of the option described in
Section 1(b) hereof to purchase all or any part of
1,050,000 additional shares of Common Stock to cover over-allotments (the “Option
Shares”), if any, from the Company to the Underwriters, acting severally and not jointly, in
the respective numbers of shares of Common Stock set forth opposite the names of each of the
Underwriters listed in Schedule I hereto. The Firm Shares to be purchased by the Underwriters and
all or any part of the Option Shares subject to the option described in Section 1(b) hereof are
hereinafter called, collectively, the “Shares.”
The Company understands that the Underwriters propose to make a public offering of the Shares
as soon as the Underwriters deem advisable after this Underwriting Agreement (the
“Agreement”) has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the “Commission”),
a registration statement on Form S-3 (No. 333-160625) including a related base prospectus, for the
registration of the Shares under the Securities Act of 1933, as amended (the “Securities
Act”), and the rules and regulations thereunder (the “Securities Act Regulations”).
The Company has prepared and filed such amendments to the registration statement and such
amendments or supplements to the related preliminary prospectus as may have been required to the
date hereof, and will file such additional
amendments or supplements as may hereafter be required. The registration statement has been
declared effective under the Securities Act by the Commission. The registration statement, as
amended at the time it was declared effective by the Commission (and, if the Company files a
post-effective amendment to such registration statement which
becomes effective prior to the Closing Time (as defined below), such registration statement as
so amended), and including any document incorporated by reference therein, and information included
in a prospectus then deemed to be a part of the registration statement pursuant to Rule 430B(e) of
the Securities Act Regulations or retroactively deemed to be part of the registration statement
pursuant to Rule 430B(f) of the Securities Act Regulations (the “430B Information”), and
information included in a prospectus then deemed to be part of the registration statement pursuant
to Rule 430C of the Securities Act Regulations (the “430C Information”) or otherwise, is
hereinafter called the “Registration Statement.” Any registration statement filed pursuant
to Rule 462(b) of the Securities Act Regulations is hereinafter called the “Rule 462(b)
Registration Statement,” and after such filing the term “Registration Statement” shall
include the 462(b) Registration Statement. Each prospectus included in the Registration Statement
before it was declared effective by the Commission under the Securities Act, including the form of
base prospectus, subject to completion, dated September 1, 2009, and the preliminary prospectus
supplement, subject to completion, dated September 8, 2009, as filed with the Commission by the
Company with the consent of the Underwriters pursuant to Rule 424(b) of the Securities Act
Regulations, is hereinafter called the “Preliminary Prospectus.” The term “Statutory
Prospectus” with reference to any particular time means the prospectus relating to the Shares
that is included in the Registration Statement immediately prior to that time, including all 430B
Information and all 430C Information with respect to the Registration Statement. For purposes of
the foregoing definition, 430B Information shall be considered to be included in the Statutory
Prospectus only as of the actual time that the form of prospectus (including a prospectus
supplement) is filed with the Commission pursuant to Rule 424(b) of the Securities Act Regulations
and not retroactively. The term “Final Prospectus” means the final prospectus supplement,
provided is it a Statutory Prospectus that discloses the public offering price, other 430B
Information and other final terms of the Shares and otherwise satisfies Section 10(a) of the
Securities Act.
The Commission has not issued any order preventing or suspending the use of any Preliminary
Prospectus.
The term “Disclosure Package” means (i) the Preliminary Prospectus, as most recently
amended or supplemented immediately prior to the Applicable Time (as defined herein), (ii) the
Issuer Free Writing Prospectuses (as defined below), if any, identified in Schedule II hereto, and
(iii) any other Free Writing Prospectus (as defined below) that the parties hereto shall hereafter
expressly agree to treat as part of the Disclosure Package.
The term “Issuer Free Writing Prospectus” means any issuer free writing prospectus, as
defined in Rule 433 of the Securities Act Regulations. The term “Free
Writing Prospectus” means any free writing prospectus, as defined in Rule 405 of the
Securities Act Regulations.
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The Company and the Underwriters agree as follows:
1. Sale and Purchase
(a) Firm Shares. Upon the basis of the warranties and representations and other terms and
conditions herein set forth, at the purchase price per share of Common Stock of $9.975, the Company
agrees to sell to the Underwriters the Firm Shares, and each Underwriter agrees, severally and not
jointly, to purchase from the Company the number of Firm Shares set forth in Schedule I opposite
such Underwriter’s name, plus any additional number of Firm Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 8 hereof, subject in each case,
to such adjustments among the Underwriters as the Representative in its sole discretion shall make
to eliminate any sales or purchases of fractional shares.
(b) Option Shares. In addition, upon the basis of the warranties and representations and other
terms and conditions herein set forth, at the purchase price per share of Common Stock set forth in
Section 1(a) above, the Company hereby grants an option to the Underwriters, acting severally and
not jointly, to purchase from the Company, all or any part of the Option Shares, plus any
additional number of Option Shares which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 8 hereof. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time within such 30-day period
(but in no event on more than two occasions) only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Firm Shares upon notice by the
Representative to the Company setting forth the aggregate number of Option Shares as to which the
several Underwriters are then exercising the option and the time and date of payment and delivery
for such Option Shares. Any such time and date of delivery (an “Option Closing Time”)
shall be determined by the Representative, but shall not be later than three (3) full business days
(or earlier, without the consent of the Company, than two (2) full business days) after the
exercise of such option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the Option Shares, the Company will sell that
number of Option Shares then being purchased and each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of Option Shares then being purchased
which the number of Firm Shares set forth in Schedule I opposite the name of such Underwriter bears
to the total number of Firm Shares, subject in each case to such adjustments among the Underwriters
as the Representative in its sole discretion shall make to eliminate any sales or purchases of
fractional shares.
2. Payment and Delivery
(a) Firm Shares. The Firm Shares to be purchased by each Underwriter hereunder, in definitive
form, and in such authorized denominations and registered in such names as the Representative may
request upon at least forty-eight (48) hours’ prior notice to the Company shall be delivered by or
on behalf of the Company to the Representative,
including, at the option of the Representative, through the facilities of The Depository
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Trust
Company (“DTC”) for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified to the Representative by the Company, upon at least forty-eight (48) hours’ prior
notice. The Company will cause the certificates, if any, representing the Firm Shares to be made
available for checking and packaging not later than 1:00 p.m. New York City time on the business
day prior to the Closing Time (as defined below) with respect thereto at the office of the
Representative, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, or at the office of DTC or its
designated custodian, as the case may be (the “Designated Office”). The time and date of
such delivery and payment shall be 9:30 a.m., New York City time, on the third (fourth, if the
determination of the purchase price of the Firm Shares occurs after 4:30 p.m., New York City time)
business day after the date hereof (unless another time and date shall be agreed to by the
Representative and the Company). The time and date at which such delivery and payment are actually
made is hereinafter called the “Closing Time.”
(b) Option Shares. Any Option Shares to be purchased by each Underwriter hereunder, in definitive
form, and in such authorized denominations and registered in such names as the Representative may
request upon at least forty-eight (48) hours’ prior notice to the Company shall be delivered by or
on behalf of the Company to the Representative, including, at the option of the Representative,
through the facilities of DTC for the account of such Underwriter, against payment by or on behalf
of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to
the account specified to the Representative by the Company, upon at least forty-eight (48) hours’
prior notice. The Company will cause the certificates, if any, representing the Option Shares to
be made available for checking and packaging at least twenty-four (24) hours prior to the Option
Closing Time with respect thereto at the Designated Office. The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on the date specified by the Representative in the
notice given by the Representative to the Company of the Underwriters’ election to purchase such
Option Shares or on such other time and date as the Company and the Representative may agree upon
in writing.
3. Representations and Warranties of the Company:
The Company represents and warrants to the Underwriters as of the date hereof that:
(a) the Registration Statement, as of its effective date and as of the date hereof and at the
time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the
Securities Act (whether by post-effective amendment, incorporated report or form of prospectus),
did not and does not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein not
misleading; the Final Prospectus, does not, on its date, as of the applicable filing date and will
not, at the Closing Time and on each Option Closing Time (if any), contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in light
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of the circumstances under which they were made, not
misleading, provided, however,
that this representation and warranty shall not apply to any statement in or omission from the
Registration Statement or the Final Prospectus made in reliance upon and in conformity with
information concerning the Underwriters and furnished to the Company in writing by or on behalf of
the Underwriters expressly for use therein (that information being limited to that described in the
last sentence of Section 9(d) hereof);
(b) as of 6:00 p.m. (Eastern time) on the date of this Agreement (the “Applicable
Time”), the Disclosure Package did not, and at the Closing Time and each Option Closing Time
(if any), the Disclosure Package will not, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading; as of its issue
date or the date of first use and at all subsequent times through the Applicable Time, each Issuer
Free Writing Prospectus, when considered together with the Disclosure Package as of the Applicable
Time, did not and, at the Closing Time and each Option Closing Time (if any), each such Issuer Free
Writing Prospectus, when considered together with the Disclosure Package, will not contain an
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading, provided, however, that this representation and warranty shall not
apply to any statement in or omission from the Disclosure Package made in reliance upon and in
conformity with information concerning the Underwriters furnished to the Company in writing by the
Underwriters expressly for use therein (that information being limited to that described in the
last sentence of Section 9(d) hereof);
(c) the Company is a corporation duly organized and validly existing and in good standing
under the laws of the State of Delaware, with requisite corporate power and authority to own, lease
or operate its properties and to conduct its business as described in each of the Registration
Statement, the Statutory Prospectus and the Disclosure Package and to execute and deliver this
Agreement, and to consummate the transactions contemplated herein (including the issuance, sale and
delivery of the Shares);
(d) each of Horsehead Corporation and Chestnut Ridge Railroad Corp. (together with the
Company, the “Company Group”), and Horsehead Zinc Recycling, LLC, is a corporation or
limited liability company duly organized and validly existing and in good standing under the laws
of its jurisdiction of incorporation or formation, with requisite corporate power and authority to
own, lease or operate its properties and to conduct its business as described in each of the
Registration Statement, the Statutory Prospectus and the Disclosure Package and to consummate the
transactions contemplated herein, as applicable;
(e) the Company had, at the date indicated and at the Closing Time, the duly authorized
capitalization set forth in both the Statutory Prospectus and the Disclosure Package under the
caption “Capitalization” after giving effect to the adjustments set forth therein; all of the
issued and outstanding shares of capital stock of the Company have been
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duly and validly authorized
and issued and are fully paid and non-assessable, and have not been issued in violation of or
subject to any preemptive right or other similar right of
stockholders arising by operation of law, under the certificate of incorporation or bylaws of
the Company, as amended, under any agreement to which the Company is a party or otherwise; all of
the outstanding shares of capital stock of the members of the Company Group are directly or
indirectly owned of record and beneficially by the Company; except as disclosed in or contemplated
by the Statutory Prospectus and the Disclosure Package, there are no outstanding (i) securities or
obligations of the Company or any other member of the Company Group convertible into or
exchangeable for any capital stock of the Company, (ii) warrants, rights or options to subscribe
for or purchase from the Company any such capital stock or any such convertible or exchangeable
securities or obligations or (iii) obligations of the Company or any member of the Company Group to
issue or sell any shares of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options;
(f) the Shares have been duly authorized for issuance, sale and delivery pursuant to this
Agreement and, when issued and delivered by the Company against payment therefor in accordance with
the terms of this Agreement, will be duly and validly issued and fully paid and nonassessable, free
and clear of any pledge, lien, encumbrance, security interest or other claim of any third party,
and the issuance, sale and delivery of the Shares by the Company are not subject to any preemptive
right, co-sale right, registration right, right of first refusal or other similar right of
stockholders arising by operation of law, under the certificate of incorporation or bylaws of the
Company, under any agreement to which the Company is a party or otherwise, other than as disclosed
in the Registration Statement, the Statutory Prospectus and the Disclosure Package;
(g) each member of the Company Group is duly qualified or licensed by, and is in good standing
in, each jurisdiction (i) in which it conducts its business, or (ii) in which it owns or leases
property or maintains an office, and in each case in which such qualification or licensing is
necessary and in which the failure, individually or in the aggregate, to be so qualified or
licensed could reasonably be expected to have a material adverse effect on the business, condition
(financial or otherwise), or results of operations of the Company Group taken as a whole (a
“Material Adverse Effect” or “Material Adverse Change”); except as disclosed in
both the Statutory Prospectus and the Disclosure Package, no member of the Company Group is
prohibited or restricted, directly or indirectly in any material respect, from paying dividends to
the Company, or from making any other distribution with respect to such member’s capital stock or
from repaying to the Company or any other member of the Company Group any amounts which may from
time to time become due under any loans or advances to such member of the Company Group from the
Company or such other member of the Company Group, or from transferring any such member’s property
or assets to the Company or to any other member of the Company Group;
(h) the Company and each other member of the Company Group is in compliance with all
applicable laws, rules, regulations, orders, decrees and judgments,
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including those relating to
transactions with affiliates, except as would not reasonably be expected to have a Material Adverse
Effect;
(i) each member of the Company Group has good and marketable title to all real and personal
property material to such member’s business and reflected as an asset owned by
them in the Registration Statement, the Statutory Prospectus and the Disclosure Package, in
each case free and clear of all liens, security interests, pledges, charges, encumbrances,
mortgages and defects, except as disclosed in the Registration Statement, the Statutory Prospectus
and the Disclosure Package or as could not reasonably be expected to have a Material Adverse
Effect; any real property or personal property that is held under lease by each member of the
Company Group and is material to such member’s business is held under a lease that is valid,
existing and enforceable by such member of the Company Group, with such exceptions as are disclosed
in the Registration Statement, the Statutory Prospectus and the Disclosure Package or as could not
reasonably be expected to have a Material Adverse Effect, and no member of the Company Group has
received any written notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company Group under any such lease or affecting or questioning the
rights of the Company to the continued possession of the leased premises under such lease, in each
case, which would reasonably be expected to have a Material Adverse Effect;
(j) each member of the Company Group owns or possesses such licenses or other adequate rights
to use all patents, trademarks, service marks, trade names, copyrights, software and design
licenses, trade secrets, manufacturing processes, other intangible property rights and know-how
(collectively “Intangibles”), as are necessary for it to conduct its business as described
in the Registration Statement, the Statutory Prospectus and the Disclosure Package, and no member
of the Company Group has received written notice of any infringement of or conflict with (and, upon
due inquiry, no member of the Company Group knows of any such infringement of or conflict with)
asserted rights of others with respect to any Intangibles which individually or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have
a Material Adverse Effect;
(k) each Issuer Free Writing Prospectus identified in Schedule II hereto, as of its issue date
and at all subsequent times through the completion of the public offer and sale of the Shares did
not, does not and will not include any information that conflicted, conflicts or will conflict with
the information contained in the Registration Statement;
(l) the Company is eligible to use Free Writing Prospectuses in connection with this offering
pursuant to Rules 164 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 Regulations has been,
or will be, filed with the Commission in accordance with the requirements of the Securities Act and
the Securities Act Regulations; and each Free Writing Prospectus that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act Regulations or that was prepared
by or on behalf of or used by the Company complies or will comply in all material respects with the
requirements of the Securities Act and the Securities Act Regulations;
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(m) except for the Issuer Free Writing Prospectuses identified in Schedule II hereto, and any
electronic road show relating to the public offering of shares contemplated herein, the Company has
not prepared, used or referred to, and will not, without the prior consent of the Representative,
prepare, use or refer to, any Free Writing Prospectus;
(n) the Preliminary Prospectus, the Statutory Prospectus and any Issuer Free Writing
Prospectuses (to the extent any such Issuer Free Writing Prospectus was required to be filed with
the Commission) delivered to the Underwriters for use in connection with the public offering of the
Shares contemplated herein have been and will be identical to the versions of such documents
transmitted to the Commission for filing via the Electronic Data Gathering Analysis and Retrieval
System (“XXXXX”), except to the extent permitted by Regulation S-T or Rule 424 of the
Securities Act Regulations;
(o) the Company filed the Registration Statement with the Commission before using any Issuer
Free Writing Prospectus; and each Issuer Free Writing Prospectus was preceded or accompanied by the
most recent Preliminary Prospectus satisfying the requirements of Section 10 under the Securities
Act, which Preliminary Prospectus included an estimated price range;
(p) except as otherwise disclosed in the Registration Statement, the Statutory Prospectus and
the Disclosure Package, no member of the Company Group has violated, or received notice of any
violation with respect to, any law, rule, regulation, order decree or judgment applicable to it and
its business, including those relating to transactions with affiliates, environmental, safety or
similar laws, federal or state laws relating to discrimination in the hiring, promotion or pay of
employees, federal or state wages and hours law, the Employee Retirement Income Security Act or the
rules and regulations promulgated thereunder, except for those violations that would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect;
(q) each of the Registration Statement and any Rule 462(b) Registration Statement has become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been issued under the
Securities Act and no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated or threatened by the Commission; and the Company has
complied to the Commission’s satisfaction with any request on the part of the Commission for
additional information;
(r) the Preliminary Prospectus when filed and the Registration Statement as of its effective
date and as of the date hereof complied, and the Final Prospectus and any further amendments or
supplements to the Registration Statement, the Preliminary Prospectus or the Final Prospectus will,
when they become effective or are filed with the Commission, as the case may be, comply, in all
material respects with the requirements of the Securities Act and the Securities Act Regulations;
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(s) no member of the Company Group is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would constitute a breach of, or default under)
its certificate of incorporation, bylaws, or other organizational documents, as amended
(collectively, the “Charter Documents”) or in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract, license, indenture,
mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which such
member of the Company Group is a party or by which any of them or their respective properties may
be bound or affected, except for such breaches or defaults which would not have a Material Adverse
Effect;
(t) the execution, delivery and performance by the Company of this Agreement, the issuance,
sale and delivery of the Shares by the Company, and the consummation by the Company of the
transactions contemplated hereby, and the compliance by each member of the Company Group with the
terms and provisions hereunder will not conflict with, or result in any breach of or constitute a
default under (nor constitute any event which with notice, lapse of time, or both would constitute
a breach of, or default under), (i) any provision of the Charter Documents of any member of the
Company Group, (ii) any provision of any contract, license, indenture, mortgage, deed of trust,
bank loan or credit agreement or other agreement or instrument to which any member of the Company
Group is a party or by which it or its respective properties may be bound or affected, or (iii) any
federal, state, local or foreign law, regulation or rule or any decree, judgment, permit or order
applicable to any member of the Company Group, except in the case of clauses (ii) or (iii) for such
conflicts, breaches or defaults which have been validly waived or would not reasonably be expected
to have a Material Adverse Effect or result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of any member of the Company Group, except for any
lien, charge, claim or encumbrance as would not reasonably be expected to have a Material Adverse
Effect;
(u) this Agreement has been duly authorized, executed and delivered by the Company and is a
legal, valid and binding agreement of the Company enforceable in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally, and by general principles of equity, and except to the extent that the
indemnification provisions hereof or thereof may be limited by federal or state securities laws and
public policy considerations in respect thereof;
(v) the Shares, when issued and delivered in accordance with the terms of this Agreement
against payment therefor as provided herein, will, and the terms of this Agreement which are
disclosed under the caption “Underwriting” do, conform in all material respects to the descriptions
thereof contained in the Registration Statement, the Statutory Prospectus and the Disclosure
Package;
(w) no approval, authorization, consent or order of or filing with any federal, state, local
or foreign governmental or regulatory commission, board, body, authority or
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agency is required in
connection with the execution, delivery and performance by the Company of this Agreement or the
consummation by the Company of the transactions contemplated hereby, or the issuance, sale and
delivery of the Shares as contemplated hereby, including from the Federal Energy Regulatory
Commission (“FERC”), other than (i) such as have been obtained or made, or will have been
obtained or made at the Closing Time or the relevant Option Closing Time, as the case may be, under
the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), (ii) such
approvals as have been obtained in connection with the approval of the listing of the Shares on the
NASDAQ Global Select Market (“Nasdaq”), (iii) any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the Shares are being offered by
the Underwriters and (iv) any approvals that may be required by the FERC in
connection with the status of any purchaser of Shares in this Offering as a “public utility”
or “holding company” as such terms are defined in the Federal Power Act;
(x) the Shares have been approved for listing on Nasdaq, subject to official notice of
issuance; the Company has taken all necessary actions to ensure that, as of the Closing Time or
within applicable grace periods thereafter, it will be in compliance in all material respects with
all applicable corporate governance requirements set forth in the Financial Industry Regulatory
Authority’s (the “FINRA”) Nasdaq Marketplace Rules (“Nasdaq Rules”) that are then
in effect;
(y) each member of the Company Group has all necessary licenses, permits, certificates,
authorizations, consents and approvals and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and has obtained all necessary licenses,
permits, certificates, authorizations, consents and approvals from other persons required in order
to conduct its respective business as described in the Registration Statement, the Statutory
Prospectus and the Disclosure Package, except to the extent that any failure to have any such
licenses, permits, certificates, authorizations, consents or approvals, to make any such filings or
to obtain any such licenses, permits, certificates, authorizations, consents or approvals would
not, individually or in the aggregate, have a Material Adverse Effect; no member of the Company
Group is in violation of, or in default under, any such license, permit, certificate,
authorization, consent or approval or any federal, state, local or foreign law, regulation or rule
or any decree, order or judgment applicable to such member of the Company Group, the effect of
which would reasonably be expected to have a Material Adverse Effect;
(z) each of the Registration Statement, the Prospectus and the Disclosure Package contain
accurate summaries of material contracts, agreements, instruments and other documents of the
Company that are required to be described in a prospectus included in the Registration Statement
(the “Material Contracts”);
(aa) other than as described in the Registration Statement, the Statutory Prospectus and the
Disclosure Package, there are no actions, suits, proceedings, inquiries, labor disputes or
investigations pending or, to the knowledge of any member of the
Company Group, threatened against
the Company or any other member of the Company
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Group, or any of their respective properties,
directors, officers or affiliates at law or in equity, or before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency that would
reasonably be expected to result in a judgment, decree, award or order having a Material Adverse
Effect;
(bb) other than the Underwriters, the Company has not authorized anyone to make any
representations regarding the offer and sale of the Shares, or regarding the Company in connection
therewith; neither the Company nor any other member of the Company Group has received notice of any
order or decree preventing the use of the Registration Statement, the Statutory Prospectus or the
Disclosure Package or any amendment or supplement thereto, and no proceeding for that purpose has
commenced or is pending or, to its knowledge, is contemplated;
(cc) subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Statutory Prospectus and the Disclosure Package, and except as may be
otherwise stated in such documents, there has not been (i) any event, circumstance or change that
has, or would reasonably be expected to have, a Material Adverse Effect, (ii) any transaction,
other than in the ordinary course of business, which is material to the Company Group taken as a
whole, contemplated or entered into by any member of the Company Group, (iii) any obligation,
contingent or otherwise, incurred by any member of the Company Group, other than in the ordinary
course of business, which is material to the Company Group taken as a whole, (iv) any dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital stock,
or any purchase by the Company of any of its outstanding capital stock, or (v) any material change
in the indebtedness, other than in the ordinary course of business, or of the capital stock of any
member of the Company Group;
(dd) neither the Company nor any other member of the Company Group is, nor upon the sale of
the Shares as contemplated herein and the application of the net proceeds therefrom as described in
the Registration Statement, the Statutory Prospectus and the Disclosure Package under the caption
“Use of Proceeds”, will be, an “investment company” or an entity “controlled” by an “investment
company” (as such terms are defined in the Investment Company Act of 1940, as amended);
(ee) (x) the Company has established and maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act), which (i) are designed to ensure that
material information relating to the Company, including its consolidated subsidiaries, is made
known to the Company’s principal executive officer and its principal financial officer by others
within those entities, particularly during the periods in which the periodic reports required under
the Exchange Act are being prepared, (ii) have been evaluated for effectiveness as of the end of
the last fiscal period covered by the Registration Statement, and (iii) to the Company’s knowledge,
are effective in all material respects to perform the functions for which they were established,
and (y) the Company is not aware of (a) any significant deficiency or material weakness in the
design or operation of its internal controls over financial reporting which are reasonably likely
to adversely affect the Company’s ability to record, process, summarize
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and report financial
information to management and the Board of Directors, or (b) any fraud, whether or not material,
that involves management or other employees who have a significant role in the Company’s internal
control over financial reporting. Since the most recent evaluation of the Company’s disclosure
controls and procedures described above, there have been no significant changes in internal control
over financial reporting or in other factors that could significantly affect internal control over
financial reporting;
(ff) the Company and each other member of the Company Group maintains 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 as applied in the United States 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;
(gg) the Company has not relied upon the Underwriters or legal counsel for the Underwriters
for any legal, tax or accounting advice in connection with the offering and sale of the Shares;
(hh) no member of the Company Group or any of their respective directors, officers,
representatives or affiliates have taken, directly or indirectly, any action intended, or which
might reasonably be expected, to cause or result, under the Securities Act, the Exchange Act or
otherwise, in, or which has constituted, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares;
(ii) each member of the Company Group carries, or is covered by, insurance (issued by insurers
of recognized financial responsibility to the best knowledge of the Company) in such amounts and
covering such risks as the Company reasonably believes is appropriate for the conduct of their
respective businesses and the value of the assets to be held by them upon the consummation of the
transactions contemplated by the Registration Statement, the Statutory Prospectus and the
Disclosure Package, all of which insurance is in full force and effect;
(jj) the consolidated financial statements of the Company and its subsidiaries, including the
notes thereto, included in the Registration Statement, the Statutory Prospectus and the Disclosure
Package fairly present in all material respects the financial condition of the Company Group, taken
as a whole, as of the respective dates thereof, and the results of their operations for the periods
then ended, correctly reflect and disclose all extraordinary items required by U.S. generally
accepted accounting principles to be disclosed therein, and have been prepared in conformity with
U.S. generally accepted accounting principles applied on a consistent basis and in accordance with
Regulation S-X promulgated by the Commission, except as otherwise noted therein and except, in the
case of unaudited financial statements, for the lack of footnote disclosure and the absence
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of
normal year-end accruals; no other financial statements are required to be included in the
Registration Statement, Statutory Prospectus or Disclosure Package;
(kk) except as would not have a Material Adverse Effect, the Company and each other member of
the Company Group is in compliance with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”); no “reportable event” (as defined in ERISA) has
occurred with respect to any “pension plan” (as defined in ERISA) for which the Company or any
other member of the Company Group would have any liability; the Company and each other member of
the Company Group has not incurred and does not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Section 412 or
4971 of the Code; and each “pension plan” for which the Company and each other member of the
Company Group would have any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of such
qualification;
(ll) Xxxxx Xxxxxxxx LLP, who has certified certain financial statements included in each of
the Registration Statement, the Statutory Prospectus and the Disclosure Package, whose reports with
respect to such financial statements included in the Registration Statement, the Statutory
Prospectus and the Disclosure Package are filed with the Commission as part of each of the
Registration Statement, the Statutory Prospectus and the Disclosure Package and who have delivered
the comfort letters referred to in Section 6(b) hereof, are independent certified public
accountants with respect to the Company as required by the Securities Act and the Securities Act
Regulations and are registered with the Public Company Accounting Oversight Board;
(mm) any certificate signed by any officer of the Company delivered to the Underwriters or to
counsel for the Underwriters as required by this Agreement shall be deemed a representation and
warranty by each member of the Company Group to the Underwriters as to the matters covered
thereby;
(nn) the Company has not distributed and will not distribute any offering material in
connection with the offer and sale of the Shares except for the Preliminary Prospectus, the
Statutory Prospectus, any Issuer Free Writing Prospectus or the Registration Statement;
(oo) the Company and, to the knowledge of the Company, the executive officers and directors of
the Company in their capacities as such, are in compliance in all material respects with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder
that are effective and applicable to the Company as of the date hereof;
(pp) except where such failure to file or pay an assessment or lien would not in the aggregate
reasonably be expected to have a Material Adverse Effect or where such
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matters are the result of a
pending bona fide dispute with taxing authorities, (i) each member of the Company Group has
accurately prepared and timely filed any and all federal, state, foreign and other tax returns that
are required to be filed by it, if any, and has paid or made provision for the payment of all
taxes, assessments, governmental or other similar charges, including without limitation, all sales
and use taxes and all taxes which such member of the Company Group is obligated to withhold from
amounts owing to employees, creditors and third parties, with respect to the periods covered by
such tax returns (whether or not such amounts are shown as due on any tax return), (ii) no
deficiency assessment with respect to a proposed adjustment of any member of the Company Group’s
federal, state, local or foreign taxes is pending or, to the best of the such member of the Company
Group’s knowledge, threatened; (iii) since the date of the most recent audited financial
statements, no member of the Company Group has incurred any liability for taxes other than in the
ordinary course of its business; and (iv) there is no tax lien, whether imposed by any federal,
state, foreign or other taxing authority, outstanding against the assets, properties or business of
any member of the Company Group; and
(qq) except as described in the Registration Statement, the Statutory Prospectus and the
Disclosure Package, or as would not in the aggregate reasonably be expected to have a Material
Adverse Effect, (i) no member of the Company Group is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively,
“Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental
Laws”), (ii) each member of the Company Group has all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or, to the knowledge of any member of the Company Group,
threatened, administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings relating to any
Environmental Law against any member of the Company Group, and (iv) to the knowledge of the members
of the Company Group, there are no events or circumstances that would reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting any member of the Company Group
relating to Hazardous Materials or any Environmental Laws.
4. Certain Covenants:
The Company hereby agrees with each Underwriter:
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(a) to furnish such information as may be required and otherwise to cooperate in qualifying
the Shares for offering and sale under, or establishing an exemption from such qualification under,
the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the
Representative may designate and to maintain such qualifications or exemptions in effect as long as
requested by the Representative for the distribution of the Shares, provided that the Company shall
not be required to qualify as a foreign corporation, to subject itself to taxation or to consent to
the service of process under the laws of any such jurisdiction (except service of process with
respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement to be declared effective before the offering
of the Shares may commence, the Company will endeavor to cause such post-effective amendment to
become effective as soon as reasonably practicable and will advise the Representative promptly and,
if requested by the Representative, will confirm such advice in writing, when such post-effective
amendment has become effective;
(c) to prepare the Final Prospectus in a form approved by the Representative and file such
Final Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later
than 10:00 a.m. (New York City time), on the business day following the date of this Agreement or
on such other day as the parties may mutually agree and to furnish promptly (and with respect to
the initial delivery of such Final Prospectus, not later than 10:00 a.m. (New York City time)) on
the second business day following the date of this Agreement or on such other day as the parties
may mutually agree, to the Underwriters copies of the Final Prospectus (or of the Final Prospectus
as amended or supplemented if the Company shall have made any amendments or supplements thereto
after the effective date of the Registration Statement) in such quantities and at such locations as
the Underwriters may reasonably request for the purposes contemplated by the Securities Act
Regulations, which Final Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the version transmitted to the Commission for filing via XXXXX,
except to the extent permitted by Regulation S-T;
(d) to advise the Representative promptly and (if requested by the Representative) to confirm
such advice in writing, when any post-effective amendment to the Registration Statement, if any,
becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representative and
counsel for the Underwriters and obtain the consent of the Representative prior to referring to,
using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the
Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II
hereto;
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(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission,
legending and record keeping, as applicable;
(g) to advise the Representative promptly, confirming such advice in writing, of (i) the
receipt of any comments from, or any request by, the Commission for amendments or supplements to
the Registration Statement, the Preliminary Prospectus, the Final Prospectus or any Issuer Free
Writing Prospectus, or for additional information with respect thereto, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of the Preliminary Prospectus, the Final Prospectus or any
Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes and, if the Commission or any other government agency or authority should
issue any such order, to make every reasonable effort to obtain the lifting or removal of such
order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act
concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under
Section 8A of the Securities Act in connection with the public offering of Shares contemplated
herein; to advise the Representative promptly of any proposal to amend or supplement the
Registration Statement, the Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing
Prospectus and to file no such amendment or supplement to which the Representative shall reasonably
object in writing;
(h) to furnish to the Underwriters for a period of three (3) years from the date of this
Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other
communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the
filing thereof, copies of all reports filed by the Company with the Commission, the FINRA or any
securities exchange and (iii) such other non-confidential information as the Underwriters may
reasonably request regarding the Company and its subsidiaries, provided however, that the Company
will not be required to furnish reports or other communications or information that is available on
XXXXX or other publicly available electronic means;
(i) to advise the Underwriters promptly of the happening of any event or development known to
the Company within the time during which a prospectus relating to the Shares (or in lieu thereof
the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be
delivered under the Securities Act Regulations which, in the judgment of the Company or in the
reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the
making of any change in the Final Prospectus or the Disclosure Package so that the Final Prospectus
or the Disclosure Package would not include 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, (ii) as a result of which
any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in
the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend
or supplement the Final Prospectus or the Disclosure
-16-
Package to comply with any law and, during
such time, to promptly prepare and furnish to the Representative copies of
the proposed amendment or supplement before filing any such amendment or supplement with the
Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to
dealers, copies in such quantities and at such locations as the Representative may from time to
time reasonably request of an appropriate amendment or supplement to the Final Prospectus or the
Disclosure Package so that the Final Prospectus or the Disclosure Package as so amended or
supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or,
in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the
Registration Statement, or so that the Final Prospectus or the Disclosure Package will comply with
the law;
(j) to file promptly with the Commission any amendment or supplement to the Registration
Statement, any Preliminary Prospectus, any Statutory Prospectus, or any Issuer Free Writing
Prospectus that may, in the judgment of the Company or in the reasonable opinion of the
Representative, be required by the Securities Act or requested by the Commission;
(k) prior to filing with the Commission any amendment or supplement to the Registration
Statement, any Preliminary Prospectus, any Statutory Prospectus or any Issuer Free Writing
Prospectus, to furnish a copy thereof to the Representative and counsel for the Underwriters and
not to file any such document to which the Representative reasonably objects in writing;
(l) to apply the net proceeds of the sale of the Shares in accordance with its statements
under the caption “Use of Proceeds” in the Final Prospectus and the Disclosure Package;
(m) to make generally available to its security holders and to deliver to the Representative
as soon as practicable, but in any event not later than the end of the fiscal quarter first
occurring after the first anniversary of the effective date of the Registration Statement an
earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form,
at the option of the Company, complying with the provisions of Rule 158 of the Securities Act
Regulations), covering a period of 12 months beginning after the effective date of the Registration
Statement;
(n) to use its best efforts to list and maintain the listing of the Shares on Nasdaq, to file
with the Nasdaq all documents and notices required by the Nasdaq of companies that have securities
that are traded on Nasdaq and to comply in all material respects with the applicable corporate
governance requirements set forth in the Nasdaq Rules in effect from time to time;
(o) the Company and any of the officers and directors of the Company in their capacities as
such will be in compliance in all material respects with the provisions of the
-17-
Xxxxxxxx-Xxxxx Act
of 2002 and the rules and regulations promulgated thereunder that are effective and applicable to
the Company;
(p) to engage and maintain, at its expense, a registrar and transfer agent for the Shares;
(q) to refrain, from the date hereof until 90 days after the date of the Final Prospectus,
without the prior written consent of the Representative, from, directly or indirectly, (i)
offering, pledging, selling, contracting to sell, selling any option or contract to purchase,
purchasing any option or contract to sell, granting any option for the sale of, or otherwise
disposing of or transferring (or entering into any transaction or device which is designed to, or
could be expected to, result in the disposition by the Company at any time in the future of), any
share of Common Stock or any securities convertible into or exercisable or exchangeable for Common
Stock, or filing any registration statement under the Securities Act with respect to any of the
foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise, or make any public
announcement of any intention to do any of the foregoing. The foregoing sentence shall not apply
to (A) the Shares to be sold hereunder, (B) issuances of options to purchase Common Stock, shares
of preferred stock or other equity-based awards pursuant to the Company’s benefit and equity
incentive plans described in each of the Registration Statement, the Final Prospectus and the
Disclosure Package, or (C) any shares of Common Stock issued by the Company upon the exercise of an
option outstanding on the date hereof and referred to in the Final Prospectus; provided, however,
that if (x) during the last 17 days of the 90-day period described in this Section 4(q), the
Company issues an earnings release or material news or a material event relating to the Company
occurs or (y) prior to the expiration of such 90-day period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the 90-day period,
the restrictions imposed by this Section 4(q) shall continue to apply until the expiration of the
18-day period beginning on the date of issuance of the earnings release or the occurrence of the
material news or material event. The Company will provide written notice to each executive officer
and director of the Company described in Section 4(s) of any event that would result in an
extension of the 90-day period pursuant to this Section 4(q) and agrees that any such notice
properly delivered will be deemed to have been given to, and received by, each such person
described in Section 4(s); provided further, that the Representative, in its sole discretion, may
release the common stock and other securities subject to the lock-up agreements described above in
whole or in part at any time with or without notice;
(r) not to, and to use its best efforts to cause its officers, directors and affiliates not
to, (i) take, directly or indirectly prior to termination of the underwriting syndicate
contemplated by this Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or which may cause or result in, or which might in the future reasonably
be expected to cause or result in, the stabilization or
-18-
manipulation of the price of any security
of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase
or pay anyone any compensation for soliciting purchases of the Shares or (iii) pay or agree to pay
to any person (other than the Underwriters) any compensation for soliciting any order to purchase
any other securities of the Company;
(s) to cause each executive officer and director of the Company to furnish to the
Representative, prior to the Applicable Time, a letter or letters, substantially in the form of
Exhibit B hereto;
(t) if, at any time during the 30-day period after the date of the Final Prospectus, any
rumor, publication or event relating to or affecting the Company shall occur as a result of which,
in the reasonable opinion of the Representative, the market price of the Common Stock has been or
is likely to be materially adversely affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Final Prospectus) and after notice from the
Representative advising the Company to the effect set forth above, consult with the Representative,
subject to applicable law, concerning the possible dissemination of a press release or other public
statement regarding such rumor, publication or event; and
(u) that the Company will comply with all of the provisions of any undertakings in the
Registration Statement.
5. Payment of Expenses:
(a) The Company agrees to pay all costs and expenses incident to the performance of its
obligations under this Agreement, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, including expenses, fees and taxes in connection with
(i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, any
Statutory Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements thereto,
the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment) and costs related to NetRoadshow, (ii) the preparation, issuance and
delivery of the Shares to the Underwriters, including any stock or other transfer taxes or duties
payable upon the sale of the Shares to the Underwriters, (iii) the printing of this Agreement and
any dealer agreements and furnishing of copies of each to the Underwriters and to dealers
(including costs of mailing and shipment), (iv) the qualification of the Shares for offering and
sale under state laws that the Company and the Representative have mutually agreed are appropriate
and the determination of their eligibility for investment under state law as aforesaid (including
the legal fees and filing fees and other disbursements of counsel for the Underwriters related to
such qualification), assuming that the Shares are approved for listing on Nasdaq and the printing
and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (v) filing for review of the public offering of the Shares by the FINRA, (vi) the
fees and expenses of any transfer agent or registrar for the Shares and miscellaneous expenses
referred to in the Registration Statement, (vii) the fees and
-19-
expenses incurred in connection with
the listing of the Shares on Nasdaq, (viii) the costs and expenses of the Company incurred in
connection with the marketing of the Shares, including all “out of pocket” expenses, roadshow costs
(regardless of the form in which the roadshow is conducted) and expenses, and expenses of Company
personnel, including but not limited to commercial or charter air travel, local hotel
accommodations and transportation, provided that the Company shall only be responsible for its pro
rata share (based on the number of passengers) of the cost of any aircraft chartered in connection
with the roadshow, (ix) all fees and disbursements of counsel and accountants for the Company,
and (x) the performance of the Company’s other obligations hereunder. Upon the request of the
Representative, the Company will provide funds in advance for filing fees.
(b) 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 or
their obligations under this Agreement, the Company also will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (such as printing, facsimile, courier service, direct computer expenses,
accommodations, travel and the fees and disbursements of Underwriters’ counsel) and any other
advisors, accountants, appraisers, etc. reasonably incurred by such Underwriters in connection with
this Agreement or the transactions contemplated herein.
6. Conditions of the Underwriters’ Obligations:
The obligations of the Underwriters hereunder to purchase Shares at the Closing Time or on
each Option Closing Time, as applicable, are subject to (i) the accuracy of the representations and
warranties on the part of the Company, on the date hereof and at the Closing Time and on each
Option Closing Time, as applicable, (ii) the performance by the Company of its obligations
hereunder and (iii) the satisfaction of the following further conditions at the Closing Time or on
each Option Closing Time, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time and on each Option
Closing Time an opinion of Xxxxxxxx & Xxxxx LLP, counsel for the Company, addressed to the
Underwriters and dated the Closing Time and each Option Closing Time and in form and substance
reasonably satisfactory to Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, in
substantially the form attached hereto as Exhibit C.
(b) On the date of this Agreement and at the Closing Time and each Option Closing Time (if
applicable), the Representative shall have received from Xxxxx Xxxxxxxx LLP letters dated the
respective dates of delivery thereof and addressed to the Representative, in form and substance
satisfactory to the Representative, containing statements and information of the type specified in
AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the
American Institute of Certified Public Accountants with respect to the financial statements,
including any pro forma financial statements, and certain financial information of the Company and
the
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other members of the Company Group included in the Registration Statement, any Statutory
Prospectus and the Disclosure Package, and such other matters customarily covered by comfort
letters issued in connection with registered public offerings; provided, that the letters delivered
at the Closing Time and each Option Closing Time (if applicable) shall use a “cut-off” date no more
than three (3) business days prior to such Closing Time or such Option Closing Time, as the case
may be.
In the event that the letters referred to above set forth any changes in indebtedness,
decreases in total assets or retained earnings or increases in borrowings, it shall be a
further condition to the obligations of the Underwriters that (A) such letters shall be
accompanied by a written explanation of the Company as to the significance thereof, unless the
Representative deems such explanation unnecessary, and (B) such changes, decreases or increases do
not, in the sole judgment of the Representative, make it impractical or inadvisable to proceed with
the purchase and delivery of the Shares as contemplated by the Registration Statement.
(c) The Representative shall have received at the Closing Time and on each Option Closing Time
the favorable opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel to the Underwriters, dated the
Closing Time or such Option Closing Time, addressed to the Representative and in form and substance
reasonably satisfactory to the Representative.
(d) No amendment or supplement to the Registration Statement, any Statutory Prospectus or any
document in the Disclosure Package shall have been filed to which the Underwriters shall have
reasonably objected in writing prior to its filing unless such objection has been withdrawn.
(e) Prior to the Closing Time and each Option Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment thereto or any order
preventing or suspending the use of any Statutory Prospectus or any document in the Disclosure
Package shall have been issued, and no proceedings for such purpose shall have been initiated or
threatened, by the Commission, and no suspension of the qualification of the Shares for offering or
sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such
purposes, has occurred, (ii) all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of the Representative, (iii) the
Registration Statement shall 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 not
misleading and (iv) any Statutory Prospectus and the Disclosure Package shall not contain an untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(f) All filings with the Commission required by Rule 424 under the Securities Act to have been
filed by the Closing Time shall have been made within the applicable time period prescribed for
such filing by such rule.
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(g) Between the time of execution of this Agreement and the Closing Time or the relevant
Option Closing Time there shall not have been any Material Adverse Effect, and no transaction which
is material and unfavorable to the Company shall have been entered into by the Company or any of
its subsidiaries, in each case, which in the Representative’s sole judgment, makes it impracticable
or inadvisable to proceed with the public offering of the Shares as contemplated by the
Registration Statement.
(h) The Shares shall have been approved for listing on Nasdaq.
(i) The FINRA shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(j) The Representative shall have received lock-up agreements as set forth in Section 4(s).
(k) The Company shall have delivered to the Underwriters a certificate, executed by the
Secretary of the Company and dated as of the Closing Time and each Option Closing Time (if any) as
to (i) the resolutions adopted by the Company’s board of directors in form and substance reasonably
acceptable to the Representative, (ii) the Company’s certificate of incorporation, as amended and
(iii) the Company’s bylaws, as amended, each as in effect at the Closing Time and each Option
Closing Time (if any).
(l) The Company will, at the Closing Time and on each Option Closing Time, deliver to the
Underwriters a certificate of its Chief Executive Officer and Chief Financial Officer, in form and
substance reasonably satisfactory to the Representative.
(m) The Company shall have furnished to the Underwriters such other documents and certificates
as to the accuracy and completeness of any statement in (i) the representations, warranties and
statements of the Company contained herein, (ii) the performance by the Company of its respective
covenants contained herein and therein, and (iii) the fulfillment of any conditions contained
herein or therein, as of the Closing Time or any Option Closing Time, as the Underwriters may
reasonably request.
7. Termination:
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Representative, at any time prior to the Closing Time or any Option
Closing Time, if (i) any of the conditions specified in Section 6 shall not have been fulfilled
when and as required by this Agreement to be fulfilled, (ii) there has been since the respective
dates as of which information is given in the Registration Statement, any Statutory Prospectus or
the Disclosure Package, any Material Adverse Effect, or any development involving a prospective
Material Adverse Effect, or material change in management of the Company or any Subsidiary, whether
or not arising in the ordinary course of business, (iii) there has been a material disruption in
the securities settlement, payment or clearance services in the United States, (iv) a banking
moratorium shall have been declared either by the United States or New York State authorities, (v)
there has occurred any material adverse change in the financial
-22-
markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Shares to be delivered on the Closing Time or Option
Closing Time, as the case may be, or to enforce contracts for the sale of the Shares, (vi) trading
in any securities of the Company has been suspended by the Commission or by Nasdaq, or if trading
generally on the New York Stock Exchange or in the Nasdaq over-the-counter market has been
suspended (including an automatic halt in trading pursuant to market-decline triggers, other than
those in which solely program trading is temporarily halted), or limitations on prices for trading
(other than limitations on
hours or numbers of days of trading) have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or FINRA or the over-the-counter market or by order
of the Commission or any other governmental authority, (vii) there has been any downgrade in the
rating of any of the Company’s debt securities or preferred stock by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act),
or (viii) any federal, state, local or foreign statute, regulation, rule or order of any court or
other governmental authority has been enacted, published, decreed or otherwise promulgated which,
in the reasonable opinion of the Representative, materially adversely affects or will materially
adversely affect the business or operations of the Company.
If the Representative elects to terminate this Agreement as provided in this Section 7, the
Company and the Underwriters shall be notified promptly by telephone, promptly confirmed by
facsimile.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement or if such sale is
not carried out because the Company shall be unable to comply in all material respects with any of
the terms of this Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5 and 9 hereof) and the Underwriters shall be
under no obligation or liability to the Company under this Agreement (except to the extent provided
in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters’ Commitments:
If any Underwriter shall default at the Closing Time or on any Option Closing Time in its
obligation to take up and pay for the Shares to be purchased by it under this Agreement on such
date, the Representative shall have the right, within 36 hours after such default, to make
arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Shares which such Underwriter shall have agreed but
failed to take up and pay for (the “Defaulted Shares”). Absent the completion of such
arrangements within such 36-hour period, (i) if the total number of Defaulted Shares does not
exceed 10% of the total number of Shares to be purchased on such date, each non-defaulting
Underwriter shall take up and pay for (in addition to the number of Shares which it is otherwise
obligated to purchase on such date
-23-
pursuant to this Agreement) the portion of the total number of
Shares agreed to be purchased by the defaulting Underwriter on such date in the proportion that its
underwriting obligations hereunder bears to the underwriting obligations of all non-defaulting
Underwriters; and (ii) if the total number of Defaulted Shares exceeds 10% of such total, the
Representative may terminate this Agreement by notice to the Company, without liability of any
party to any other party except that the provisions of Sections 5 and 9 hereof shall at all times
be effective and shall survive such termination.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Shares hereunder on such date
unless all of the Shares to be purchased on such date are purchased on such date by the
Underwriters (or by substituted Underwriters selected by
the Representative with the approval of the Company or selected by the Company with the
approval of the Representative).
If a new Underwriter or Underwriters are substituted for a defaulting Underwriter in
accordance with the foregoing provision, the Company or the non-defaulting Underwriters shall have
the right to postpone the Closing Time or the relevant Option Closing Time for a period not
exceeding five (5) business days in order that any necessary changes in the Registration Statement
and Final Prospectus and other documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 8 with the same effect as if such substituted
Underwriter had originally been named in this Agreement.
9. Indemnity and Contribution by the Company and the Underwriters:
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter and any person
who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and the respective directors, officers, employees and agents of each
Underwriter from and against any loss, expense, liability, damage or claim (including the
reasonable cost of investigation) which, jointly or severally, any such Underwriter or controlling
person may incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss,
expense, liability, damage or claim arises out of or is based upon (A) any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement (or any
amendment), any Issuer Free Writing Prospectus that the Company has filed or was required to file
with the Commission or otherwise retain, or the Final Prospectus (the term Final Prospectus for the
purpose of this Section 9 being deemed to include any Preliminary Prospectus and the Statutory
Prospectus as amended or supplemented by the Company), (B) any omission or alleged omission to
state a material fact required to be stated in any such Registration Statement, or necessary to
make the statements made therein not misleading, or (C) any omission or alleged omission from any
such Issuer Free Writing Prospectus or Final Prospectus of a material fact necessary to make the
statements made therein, in the light of the circumstances under which they were made, not
misleading; except insofar as any
-24-
such loss, expense, liability, damage or claim arises out of or
is based upon any untrue statement or alleged untrue statement or omission or alleged omission of a
material fact contained in and in conformity with information furnished in writing by the
Underwriters through the Representative to the Company expressly for use in such Registration
Statement, Final Prospectus or Issuer Free Writing Prospectus. The indemnity agreement set forth
in this Section 9(a) shall be in addition to any liability which the Company may otherwise have.
(b) If any action is brought against an Underwriter or any such officer, director or
controlling person in respect of which indemnity may be sought against the Company pursuant to
subsection (a) above, such Underwriter shall promptly notify the Company in writing of the
institution of such action, and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses; provided, however, that any failure or delay to so
notify the Company will not relieve the Company of any
obligation hereunder, except to the extent that its ability to defend is actually impaired by
such failure or delay. Such Underwriter or controlling person shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such officer, director or controlling person unless the employment
of such counsel shall have been authorized in writing by the Company in connection with the defense
of such action, or the Company shall not have employed counsel to have charge of the defense of
such action within a reasonable time or such indemnified party or parties shall have reasonably
concluded (based on the advice of counsel) that counsel selected by the Company has a conflict of
interest or there may be defenses available to it or them which are different from or additional to
those available to the Company (in which case the Company shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of which events such
fees and expenses shall be borne by the Company and paid as incurred (it being understood, however,
that the Company shall not be liable for the expenses of more than one separate firm of attorneys
for the Underwriters or controlling persons in any one action or series of related actions in the
same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified
parties who are parties to such action). Anything in this paragraph to the contrary
notwithstanding, the Company shall not be liable for any settlement of any such claim or action
effected without its consent.
(c) Each Underwriter agrees, severally and not jointly, to indemnify, defend and hold harmless
the Company, their respective directors, officers and any person who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against
any loss, expense, liability, damage or claim (including the reasonable cost of investigation)
which, jointly or severally, the Company or any such person may incur under the Securities Act, the
Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim arises out of
or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment), any Issuer Free Writing Prospectus that the
Company has filed or was required to file with the Commission, or the Final Prospectus, or any
Application, (B) any omission or alleged omission to state a material fact required
-25-
to be stated in
any such Registration Statement, or necessary to make the statements made therein not misleading,
or (C) any omission or alleged omission from any such Issuer Free Writing Prospectus or Final
Prospectus of a material fact necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading, but in each case only insofar as such
untrue statement or alleged untrue statement or omission or alleged omission was made in such
Registration Statement, Issuer Free Writing Prospectus or Final Prospectus in reliance upon and in
conformity with information furnished in writing by the Underwriters through the Representative to
the Company expressly for use therein. The statements set forth in the paragraphs identified by
“Electronic Delivery” and “Stabilization”, and the concession and reallowance figures appearing in
“Commissions and Expenses” under the section “Underwriting” in the Preliminary Prospectus, the
Disclosure Package and the Final Prospectus (to the extent such statements relate to the
Underwriters) constitute the only information furnished by or on behalf of any Underwriter through
the Representative to the Company for purposes of this Section 9.
(d) If any action is brought against the Company or any such person in respect of which
indemnity may be sought against any Underwriter pursuant to the foregoing paragraph, the Company or
such person shall promptly notify the Representative in writing of the institution of such action
and the Representative, on behalf of the Underwriters, shall assume the defense of such action,
including the employment of counsel and payment of expenses. The Company or such person shall have
the right to employ its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company or such person unless the employment of such counsel
shall have been authorized in writing by the Representative in connection with the defense of such
action or the Representative shall not have employed counsel to have charge of the defense of such
action within a reasonable time or such indemnified party or parties shall have reasonably
concluded (based on the advice of counsel) that there may be defenses available to it or them which
are different from or additional to those available to the Underwriters (in which case the
Representative shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses shall be borne by such
Underwriter and paid as incurred (it being understood, however, that the Underwriters shall not be
liable for the expenses of more than one separate firm of attorneys in any one action or series of
related actions in the same jurisdiction (other than local counsel in any such jurisdiction)
representing the indemnified parties who are parties to such action). Anything in this paragraph
to the contrary notwithstanding, no Underwriter shall be liable for any settlement of any such
claim or action effected without the written consent of the Representative.
(e) If the indemnification provided for in this Section 9 is unavailable or insufficient to
hold harmless an indemnified party under subsections (a), (b), (c) and (d) of this Section 9 in
respect of any losses, expenses, liabilities, damages or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses, expenses,
liabilities, damages or claims (i) in such
-26-
proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of the Shares or (ii) if
(but only 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 of the Underwriters in connection with the
statements or omissions which resulted in such losses, expenses, liabilities, damages or claims, as
well as any other relevant equitable considerations. The relative benefits received by the Company
and the Underwriters shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting expenses) received by
the Company bear to the underwriting discounts and commissions received by the Underwriters. The
relative fault of the Company and of the Underwriters shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission 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 amount paid or payable by a party as a result of the
losses, claims, damages and liabilities referred to above shall be deemed to include any legal or
other fees or
expenses reasonably incurred by such party in connection with investigating or defending any
claim or action.
(f) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in subsection (e)(i) and,
if applicable (ii), above. Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by such Underwriter. 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 pursuant to this Section 9 are several in proportion to
their respective underwriting commitments and not joint.
10. Survival:
The indemnity and contribution agreements contained in Section 9 and the covenants, warranties
and representations of the Company contained in Sections 3, 4 and 5 of this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of any Underwriter,
or any person who controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and the respective directors, officers, employees and agents of
each Underwriter or by or on behalf of the Company, its directors and officers or any person who
controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the sale and delivery of the
Shares. The Company and each Underwriter agree promptly to notify the others of the commencement
of any litigation or proceeding against it and, in the case of
-27-
the Company, against any of the
Company’s officers and directors, in connection with the sale and delivery of the Shares, or in
connection with the Registration Statement or Final Prospectus.
11. Duties:
Nothing in this Agreement shall be deemed to create a partnership, joint venture or agency
relationship between the parties. The Underwriters undertake to perform such duties and
obligations only as expressly set forth herein. Such duties and obligations of the Underwriters
with respect to the Shares shall be determined solely by the express provisions of this Agreement,
and the Underwriters shall not be liable except for the performance of such duties and obligations
or failure to perform such duties or obligations with respect to the Shares as are specifically set
forth in this Agreement. The Company acknowledges and agrees that: (i) the purchase and sale of
the Shares pursuant to this Agreement, including the determination of the public offering price of
the Shares and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the other hand, and the
Company are capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its respective affiliates, stockholders, creditors or
employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency
or fiduciary responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company on other matters); and (iv) the several Underwriters
and their respective affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company and that the several Underwriters have no
obligation to disclose any of such interests. The Company acknowledges that the Underwriters
disclaim any implied duties (including any fiduciary duty), covenants or obligations arising from
the Underwriters’ performance of the duties and obligations expressly set forth herein. The
Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Underwriters with respect to any breach or alleged breach of
agency or fiduciary duty.
12. Notices:
Except as otherwise herein provided, all statements, requests, notices and agreements shall be
in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if
delivered to Xxxxxx, Xxxxxxxx & Company Incorporated, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Syndicate Department, Fax: (000) 000-0000, with a copy to Xxxxxxx Xxxxxxx, Fax (000)
000-0000; if to the Company, shall be sufficient in all respects if delivered to the Company at the
offices of the Company at 0000 Xxxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
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13. Governing Law; Headings:
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this
Agreement have been inserted as a matter of convenience of reference and are not a part of this
Agreement.
14. Waiver of Jury Trial.
THE PARTIES EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS
TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER
AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS. The scope
of this waiver is intended to be all encompassing of any and all actions that may be filed in
any court and that relate to the subject matter of the transactions contemplated in this
Agreement, including, contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims. The Parties each acknowledge that this waiver is a material
inducement to enter into a business relationship and that they will continue to rely on the
waiver in their related future dealings. Each Party further represents and warrants that it
has reviewed this waiver with its legal counsel, and that each knowingly and voluntarily
waives its jury trial rights following consultation with legal counsel. NOTWITHSTANDING
ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING HERETO. In the event of an action, this Agreement may be filed as a written consent
to trial by a court.
15. Parties at Interest:
The Agreement herein set forth has been and is made solely for the benefit of the
Underwriters, the Company and the controlling persons, directors and officers referred to in
Sections 9 and 10 hereof, and their respective successors, assigns, executors and administrators.
No other person, partnership, association or corporation (including a purchaser, as such purchaser,
from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement.
16. Counterparts and Facsimile Signatures:
This Agreement may be signed by the parties in counterparts which together shall constitute
one and the same agreement among the parties. A facsimile signature shall constitute an original
signature for all purposes.
-29-
17. Amendments and Waivers:
Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
18. Successors
This Agreement shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties.
19. Severability:
In the event that any one or more of the provisions contained herein is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions hereof shall not be in any
way impaired or affected thereby, but only to the extent that giving effect to such provision and
the remaining provisions hereof is in accordance with the intent of the parties as reflected in the
Agreement.
20. Entire Agreement:
This Agreement constitutes the entire agreement and understanding of the parties hereto with
respect to the matters and transactions contemplated hereby and thereby, and this Agreement
supersedes all prior agreements and understandings whatsoever relating to such matters and
transactions.
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If the foregoing correctly sets forth the understanding among the Company and the
Underwriters, please so indicate in the space provided below for the purpose, whereupon this
Agreement shall constitute a binding agreement among the Company and the Underwriters.
| Very truly yours,
HORSEHEAD HOLDING CORP. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | President & CEO | |||
| Accepted and agreed to as of the date first above written: XXXXXX, XXXXXXXX & COMPANY INCORPORATED |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Director, Capital Markets | |||
For itself and as Representative of the other
Underwriters named on Schedule I hereto.
Underwriters named on Schedule I hereto.
[Signature page to Underwriting Agreement]
EXECUTION VERSION
Schedule I
| Number of Option | ||||||||
| Number of Firm | Shares to be | |||||||
| Underwriter | Shares to be Purchased | Purchased | ||||||
Xxxxxx, Xxxxxxxx & Company Incorporated |
4,200,000 | 630,000 | ||||||
Canaccord Xxxxx Inc. |
1,260,000 | 189,000 | ||||||
FBR Capital Markets & Co. |
770,000 | 115,500 | ||||||
Xxxxxxx Xxxxx & Associates, Inc. |
770,000 | 115,500 | ||||||
Total |
7,000,000 | 1,050,000 | ||||||
S-2
Schedule II
Issuer Free Writing Prospectuses
The Company’s roadshow as posted on xxxx://xxx.xxxxxxxxxxx.xxx on September 8, 2009.
S-3
EXECUTION VERSION
EXHIBIT A
FORM OF LOCK-UP LETTER
Exhibit B-1
EXHIBIT B
FORM OF ISSUER’S COUNSEL OPINION
Exhibit D-1
