Shares ANCESTRY.COM INC. COMMON STOCK, $0.001 PAR VALUE UNDERWRITING AGREEMENT
Exhibit 1.1
Shares
XXXXXXXX.XXX INC.
COMMON STOCK, $0.001 PAR VALUE
UNDERWRITING AGREEMENT
, 2009
, 2009
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BMO Capital Markets Corp.
Xxxxxxxxx & Company, Inc.
Xxxxx Xxxxxxx & Co.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BMO Capital Markets Corp.
Xxxxxxxxx & Company, Inc.
Xxxxx Xxxxxxx & Co.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxx.xxx Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the
several Underwriters named in Schedule II hereto (the “Underwriters”), and certain stockholders of
the Company (the “Selling Stockholders”) named in Schedule I hereto severally propose to sell to
the several Underwriters, an aggregate of
shares of the common stock, $0.001 par
value per share, of the Company (the “Firm Shares”),
of which shares are to be issued
and sold by the Company and
shares are to be sold by the Selling Stockholders, each
Selling Stockholder selling the amount set forth opposite such Selling Stockholder’s name in
Schedule I hereto.
The Company also proposes to issue and sell to the several Underwriters not more than an
additional
shares of its common stock, $0.001 par value per share, (the “Additional
Shares”) if and to the extent that you, as managers of the offering, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted
to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the “Shares.” The shares of common stock, $0.001 par value per share,
of the Company to be outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the “Common Stock.” The Company and the Selling Stockholders are
hereinafter sometimes collectively referred to as the “Sellers.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, relating to the Shares. The registration statement
as amended at the time it becomes effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the
“Registration Statement”; the prospectus in the form first used to confirm sales of Shares (or in
the form first made available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Prospectus.” If the Company has filed an abbreviated
registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under
the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462 Registration Statement.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule
405 under the Securities Act, “Time of Sale Prospectus” means the most recent preliminary
prospectus together with the free writing prospectuses, if any, each identified in Schedule III
hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in
Rule 433(h)(5) under the Securities Act that has been made available without restriction to any
person. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time of
Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference
therein.
1. Representations and Warranties of the Company. The Company represents and warrants to and
agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the Company’s knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not as of the date of any such amendment or supplement contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and regulations of the
Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of
the Shares in connection with the offering when the Prospectus is not yet available to prospective
purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, (iv) each broadly available
road show, if any, when considered together with the Time of Sale Prospectus, does not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading
and (v) as of the applicable filing date, the Closing Date and the Option Closing Date (as defined
in Section 3), as the case may be, the Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties set
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forth in this paragraph do not apply to statements or omissions in the Registration Statement,
the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. The Company has made available a “bona fide electronic
road show”, as defined in Rule 433, in compliance with Rule 433(d)(8)(ii) (the “Bona Fide
Electronic Road Show”) such that no filing of any “road show” (as defined in Rule 433(h)) is
required in connection with the offering of the Shares. Except for the free writing prospectuses,
if any, identified in Schedule III hereto, and electronic road shows, if any, each furnished to you
before first use, the Company has not prepared, used or referred to, and will not, without your
prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the state of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Time of Sale Prospectus and the Prospectus
and is duly qualified to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated (or, if in a foreign
jurisdiction, enjoys the equivalent status under the laws of the jurisdiction of organization
outside of the United States) , is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Time of Sale Prospectus and the Prospectus
and is duly qualified to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued
equity interests of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
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indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company will conform on the Closing Date (as defined
in Section 5) as to legal matters to the description thereof contained in each of the Time of Sale
Prospectus and the Prospectus.
(h) The shares of Common Stock (including the Shares to be sold by the Selling Stockholders)
outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized
and are validly issued, fully paid and non-assessable.
(i) The Shares to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar
rights.
(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the
certificate of incorporation or bylaws of the Company, (iii) any agreement or other instrument
binding upon the Company or any of its subsidiaries, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary, except
in the case of clause (iii) above, where such contravention would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a whole, or a material
adverse effect on the power and ability of the Company to perform its obligations under this
Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus. No
consent, approval, authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under this Agreement,
except such as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares and except for any such consents, approvals,
authorizations, orders or qualifications, the absence of which would not, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole, or
a material adverse effect on the power and ability of the Company to perform its obligations under
this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus.
(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus and the Prospectus.
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(l) There are no legal or governmental proceedings pending or, to the Company’s knowledge,
threatened to which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and the Prospectus and
proceedings that would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or a material adverse effect on the power or ability of the Company to perform
its obligations under this Agreement or to consummate the transactions contemplated by the Time of
Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration
Statement or the Prospectus and are not so described; and there are no statutes, regulations,
transactions, contracts or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
(o) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
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(q) Except as described in the Time of Sale Prospectus and the Prospectus, there are no
contracts, agreements or understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the Securities Act with respect
to any securities of the Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(r) Neither the Company nor any of its subsidiaries, nor any director, officer, nor, to the
Company’s knowledge, any employee, agent or representative acting on behalf of the Company or of
any of its subsidiaries, has taken any action in furtherance of an offer, payment, promise to pay,
or authorization or approval of the payment or giving of money, property, gifts or anything else of
value, directly or indirectly, to any “government official” (including any officer or employee of a
government or government-owned or controlled entity or of a public international organization, or
any person acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office) to influence official action
or secure an improper advantage that would constitute a violation of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”); and the Company and
its subsidiaries have conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to promote and achieve compliance with the FCPA.
(s) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting
requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions
where the Company and its subsidiaries conduct business, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(t) (i) Neither the Company nor any of its subsidiaries (collectively, the “Entity”) or any
director, officer or, to the knowledge of the Company, employee, agent or representative acting on
behalf of the Entity, is an individual or entity (“Person”):
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United
Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s
Treasury
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(“HMT”), or other relevant sanctions authority (collectively, “Sanctions”),
nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Entity will not, directly or indirectly, use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or
other Person:
(A) to fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
(iii) For the past five (5) years, the Entity has not knowingly engaged in, is not now
knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in
any country or territory, that at the time of the dealing or transaction is or was the subject of
Sanctions.
(u) Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus and before the Closing Date
or the Option Closing Date, as the case may be, except as disclosed in the Time of Sale Prospectus
and the Prospectus, (i) the Company and its subsidiaries have not incurred any material liability
or obligation, direct or contingent, nor entered into any material transaction; (ii) the Company
has not purchased any of its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than ordinary and customary
dividends; and (iii) there has not been any material change in the capital stock, short-term debt
or long-term debt of the Company and its subsidiaries, except in each case as described in each of
the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(v) The Company and its subsidiaries do not own any real property. Subject to the security
interests described in the Registration Statement, Time of Sale Prospectus and Prospectus, the
Company and its subsidiaries have good and marketable title to all personal property owned by them
which is material to the business of the Company and its subsidiaries, in each case free and clear
of all liens, encumbrances and defects except such as are described in the Time of Sale Prospectus
and the Prospectus or such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under lease by the Company and its
subsidiaries are held by
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them under valid, subsisting and enforceable leases with such exceptions as are not material
and do not materially interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as described in the Time of Sale
Prospectus and the Prospectus.
(w) The Company and its subsidiaries own or possess, or can acquire on reasonable terms, the
material patents, patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names currently employed by them in connection
with the business now operated by them, and, except as described in the Time of Sale Prospectus and
the Prospectus, neither the Company nor any of its subsidiaries has received any notice of any
claim of infringement of or conflict with asserted rights of others with respect to any of the
foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(x) No material labor dispute with the employees of the Company or any of its subsidiaries
exists, except as described in the Time of Sale Prospectus and the Prospectus, or, to the knowledge
of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors
that could have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(y) The Company and its subsidiaries, taken as a whole, are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; the Company and its subsidiaries, taken as a
whole, has not been refused any insurance coverage sought or applied for; and the Company has no
reason to believe that it and its subsidiaries, taken as a whole, will not be able to renew their
existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole, except as described
in the Time of Sale Prospectus and the Prospectus.
(z) The Company and its subsidiaries, taken as a whole, possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign governmental or
regulatory authorities necessary to conduct their respective businesses, except as would have a
material adverse effect on the Company and its subsidiaries, taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material
adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the
Time of Sale Prospectus and the Prospectus.
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(aa) The Company and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as described in the Time of
Sale Prospectus and the Prospectus, since the end of the Company’s most recent audited fiscal year,
there has been (i) no material weakness in the Company’s internal control over financial reporting
(whether or not remediated) and (ii) no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(bb) Except as described in the Time of Sale Prospectus and the Prospectus, the Company has
not sold, issued or distributed any shares of Common Stock during the six-month period preceding
the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the
Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock option
plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(cc) Ernst & Young LLP, which has expressed its opinion with respect to the financial
statements of the Company filed with the Commission as a part of the Registration Statement and
included in each of the Time of Sale Prospectus and the Prospectus, is an independent registered
public accounting firm as required by the Securities Act.
(dd) The Company and its subsidiaries have established and maintain disclosure controls and
procedures (as defined in Rule 13a-15 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)). Such disclosure controls and procedures 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. The Company has no reason to believe that such disclosure controls and
procedures are not effective in timely alerting the Company’s principal executive officer and
principal financial officer to material information required to be included in the Company’s
periodic reports required under the Exchange Act.
(ee) The Company has taken all necessary actions to ensure that, upon the effectiveness of the
Registration Statement, it will be in compliance in all material respects with all provisions of
the Xxxxxxxx-Xxxxx Act of 2002, as amended (the “Xxxxxxxx-Xxxxx Act”) and all rules and regulations
promulgated thereunder or implementing the provisions thereof which the Company is required
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to comply with as of the effectiveness of the Registration Statement, and is actively taking
steps to ensure that it will be in compliance with other provisions of the Xxxxxxxx-Xxxxx Act which
will become applicable to the Company at all times after the effectiveness of the Registration
Statement.
(ff) The Company (i) has provided notice to each holder of a currently outstanding option
issued under any of the Company’s stock plans with outstanding options and any other similar option
granting agreement (collectively, the “Option Plans”) and each person who has acquired shares of
Common Stock pursuant to the exercise of any option granted under the Option Plans that none of
such options or shares may be sold or otherwise transferred or disposed of for a period of 180 days
after the date of the Prospectus and (ii) has imposed a stop-transfer instruction with the
Company’s transfer agent in order to enforce the foregoing lock-up provision imposed pursuant to
the Option Plans.
(gg) The Company (i) has provided notice to each stockholder who is a party to the
Registration Rights Agreement dated December 5, 2007 (the “Registration Rights Agreement”), that
pursuant to the terms of the Registration Rights Agreement, none of the shares of the Company’s
capital stock held by such stockholder may be sold or otherwise transferred or disposed of for a
period of 180 days after the date of the Prospectus and (ii) has imposed a stop-transfer
instruction with the Company’s transfer agent in order to enforce the foregoing lock-up provision
imposed pursuant to the Registration Rights Agreement.
(hh) The financial statements of the Company filed with the Commission as a part of the
Registration Statement and included in each of the Time of Sale Prospectus and the Prospectus
present fairly in all material respects the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the results of their operations and cash flows for the
periods specified. Such financial statements have been prepared in conformity with generally
accepted accounting principles as applied in the United States applied on a consistent basis
throughout the periods involved. The financial data set forth in the Prospectus under the captions
“Summary Consolidated Financial Data,” “Selected Consolidated Financial Data” and “Consolidated
Financial Information” present fairly in all material respects the information set forth therein on
a basis consistent with that of the audited financial statements contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
(ii) The statistical, industry-related and market-related data included in the Time of Sale
Prospectus and the Prospectus are based on or derived from sources which the Company reasonably and
in good faith believes are reliable and accurate, and such data agree with the sources from which
they are derived.
2. Representations and Warranties of the Selling Stockholders. Each Selling Stockholder,
severally and not jointly, represents and warrants to and agrees with each of the Underwriters
that:
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(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such
Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such
Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such
Selling Stockholder and , as Custodian, relating to the deposit of the Shares to be
sold by such Selling Stockholder (the “Custody Agreement”) and the Power of Attorney appointing
certain individuals as such Selling Stockholder’s attorneys-in-fact to the extent set forth
therein, relating to the transactions contemplated hereby and by the Registration Statement (the
“Power of Attorney”) will not contravene any provision of applicable law, or the certificate of
incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is a
corporation), or any agreement or other instrument binding upon such Selling Stockholder or any
judgment, order or decree of any governmental body, agency or court having jurisdiction over such
Selling Stockholder, and no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by such Selling Stockholder of its
obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling
Stockholder, except such as may be required by the securities or Blue Sky laws of any relevant
jurisdictions in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date will have, valid title to, or a
valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial
Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder free and clear of
all security interests, claims, liens, equities or other encumbrances and the legal right and
power, and all authorization and approval required by law, to enter into this Agreement, the
Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold
by such Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and
delivered by such Selling Stockholder and are valid and binding agreements of such Selling
Stockholder.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this
Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such
other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such
Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of
DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter
has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares),
(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the
UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement
in respect of such Shares and (C) no action based on
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any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be
asserted against the Underwriters with respect to such security entitlement; for purposes of this
representation, such Selling Stockholder may assume that when such payment, delivery and crediting
occur, (x) such Shares will have been registered in the name of Cede or another nominee designated
by DTC, in each case on the Company’s share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation”
within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the
several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) Such Selling Stockholder has not prepared, used or referred to, and will not, without your
prior consent, prepare, use or refer to, any free writing prospectus except for the free writing
prospectuses, if any, identified in Schedule III hereto, and electronic road shows, if any,
furnished to you before first use.
(g) Such Selling Stockholder is not prompted by any information concerning the Company or its
subsidiaries which is not set forth in the Time of Sale Prospectus or the Prospectus to sell its
Shares pursuant to this Agreement.
(h) (i) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares
in connection with the offering when the Prospectus is not yet available to prospective purchasers
and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (iii) each broadly available road show,
if any, when considered together with the Time of Sale Prospectus, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading and (iv) the
Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the representations and warranties set forth in this paragraph 2(h) are limited in
all respects to statements or omissions made in reliance upon information relating to such Selling
Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in
the Registration Statement, the Time of Sale Prospectus, a broadly available road show, the
Prospectus or any amendments or supplements thereto.
3. Agreements to Sell and Purchase. Each Seller, severally and not jointly, hereby agrees to
sell to the several Underwriters, and each Underwriter,
12
upon the basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase from such Seller at
$ a share (the “Purchase Price”) the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion to the number of
Firm Shares to be sold by such Seller as the number of Firm Shares set forth in Schedule II hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company/each Seller, severally and not jointly, agrees to sell to the
Underwriters the portion of the Additional Shares shown on Schedule II hereto, and the Underwriters
shall have the right to purchase, severally and not jointly, up to Additional
Shares at the Purchase Price. You may exercise this right on behalf of the Underwriters in whole
or from time to time in part by giving written notice not later than 30 days after the date of this
Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such Shares are to be purchased. Each purchase date must be
at least one business day after the written notice is given and may not be earlier than the closing
date for the Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 5 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Shares. On each day, if
any, that Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the same proportion to
the total number of Additional Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
Each Seller hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx,” and together with Xxxxxx
Xxxxxxx, the “Representatives”) on behalf of the Underwriters, it will not, during the period
ending 180 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, (2) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise, (3) publicly announce the intent to do any of the
foregoing, or (4) file any registration statement with the Commission relating to the offering of
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock.
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The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing, (c) the filing of a registration statement with the
Commission on Form S-8 relating to the offering of securities in accordance with the terms of a
plan in effect on the date hereof, (d) transactions by a Selling Stockholder relating to shares of
Common Stock or other securities acquired in open market transactions after the completion of the
offering of the Shares, provided that no filing under the Exchange Act (other than a filing on a
Form 5, Schedule 13D or Schedule 13G (or 13D/A or 13G/A) made after the expiration of the 180-day
restricted period) shall be required or shall be voluntarily made in connection with subsequent
sales of Common Stock or other securities acquired in such open market transactions, (e) transfers
by a Selling Stockholder of shares of Common Stock or any security convertible into Common Stock as
a bona fide gift, (f) transfers of shares of Common Stock or any security convertible into Common
Stock to any trust for the direct or indirect benefit of the undersigned or the immediate family of
the undersigned; or (g) distributions by a Selling Stockholder of shares of Common Stock or any
security convertible into Common Stock to affiliates of the Selling Stockholder, including limited
partners, members, or stockholders of the Selling Stockholder; provided that in the case of any
transfer or distribution pursuant to clause (e) through (g), (i) each donee or distributee shall
enter into a written agreement accepting the restrictions set forth in the preceding paragraph and
this paragraph as if it were a Selling Stockholder and (ii) no filing under the Exchange Act,
reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall
be voluntarily made in respect of the transfer or distribution during the 180-day restricted
period, (iii) each party (transferor, transferee, donor or donee) shall not be required by law
(including without limitation the disclosure requirements of the Exchange Act) to make, and shall
agree to not voluntarily make, any public announcement of the transfer or disposition (other than a
filing on a Form 5, Schedule 13D or Schedule 13G (or 13D/A or 13G/A) made after the expiration of
the 180-day restricted period) and (iv) the undersigned notifies the Representatives at least three
business days prior to the proposed transfer or disposition, or (f) the establishment of a trading
plan pursuant to Rule 10b5-1(c) under the Exchange Act for the transfer of shares of Common Stock,
provided that such plan does not provide for the transfer of Common Stock during the 180-day
restricted period. In addition, each Selling Stockholder, agrees that, without the prior written
consent of the Representatives on behalf of the Underwriters, it will not, during the period ending
180 days after the date of the Prospectus, make any demand for, or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible into or exercisable
or exchangeable for Common Stock. Each Selling Stockholder consents to the entry of stop transfer
instructions with the Company’s transfer agent and registrar against the transfer of any Shares
held by such Selling Stockholder except in compliance with the foregoing restrictions.
Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period the
Company issues an earnings release or material news or a
14
material event relating to the Company occurs; or (2) prior to the expiration of the 180-day
restricted period, the Company announces that it will release earnings results during the 16-day
period beginning on the last day of the 180-day period, the restrictions imposed by this agreement
shall continue to apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event. The Company shall
promptly notify the Representatives of any earnings release, news or event that may give rise to an
extension of the initial 180-day restricted period.
4. Terms of Public Offering. The Sellers are advised by you that the Underwriters propose to
make a public offering of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Sellers
are further advised by you that the Shares are to be offered to the
public initially at $___ a
share (the “Public Offering Price”) and to certain dealers selected by you at a price that
represents a concession not in excess of $___ a share under the Public Offering Price, and that
any Underwriter may allow, and such dealers may reallow, a
concession, not in excess of $___ a
share, to any Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by each Seller shall be made
to such Seller in Federal or other funds immediately available in New York City against delivery of
such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York
City time, on , 2009,1 or at such other time on the same or such other date,
not later than , 2009,2 as shall be designated in writing by you. The time and
date of such payment are hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall be made to each Seller in Federal or other funds
immediately available in New York City against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 3 or at such other time on the same or
on such other date, in any event not later than , 2009,3 as shall be designated
in writing by you.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you
1 | Insert date 3 business days or, in the event the offering is priced after 4:30 p.m. Eastern Time (and T+4 settlement is deemed to apply to secondary sales), 4 business days after the date of the Underwriting Agreement. | |
2 | Insert date 5 business days after the date inserted in accordance with footnote 20. | |
3 | Insert date 10 business days after the expiration of the green shoe option. |
15
on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with the transfer of the
Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
6. Conditions to the Underwriters’ Obligations. The obligations of the Sellers to sell the
Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for
the Shares on the Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than [ ] (New York City time) on the date hereof, no stop
order suspending the effectiveness of the Registration Statement or any part thereof has been
issued, and no proceedings for that purpose have been instituted or are pending or contemplated
under the Securities Act.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus and the Prospectus that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by the chief executive officer and chief financial officer of the Company, to the
effect set forth in Section 6(a)(i) above and to the effect that the representations and warranties
of the Company contained in this Agreement are true and correct as of the Closing Date, that the
Company has complied with all of the agreements and satisfied all of the conditions on its part to
be performed or satisfied hereunder on or before the Closing Date, and that there has not occurred
any material adverse change, or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or operations of the Company
16
and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and
the Prospectus.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx, Xxxx &
Xxxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect agreed by such
counsel and the Underwriters.
(d) The Underwriters shall have received on the Closing Date a letter from Xxxxxx, Xxxx &
Xxxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect agreed by such
counsel and the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of ,
counsel for the Selling Stockholders, dated the Closing Date, to the effect agreed by such counsel
and the Underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Underwriters, dated the Closing Date,
in the form and substance to be agreed upon by Xxxxxx Xxxxxxx and such counsel.
With respect to Section 6(d) above, Xxxxxx, Xxxx & Xxxxxxxx may state that their opinions and
beliefs are based upon their participation in the preparation of the Registration Statement, the
Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or verification, except as
specified.
The opinion and letter of Xxxxxx, Xxxx & Xxxxxxxx described in Sections 6(c) and 6(d) above
(and any opinions of counsel for any Selling Stockholder referred to in the immediately preceding
paragraph) shall be rendered to the Underwriters at the request of the Company or one or more of
the Selling Stockholders, as the case may be.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from Ernst & Young LLP, an independent registered public
accounting firm, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial and statistical information contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a
“cut-off date” not earlier than the date hereof.
17
(h) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you
and certain Stockholders, officers and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, delivered to you on or before
the date hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Shares.
7. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, six conformed copies of the Registration Statement
(including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 7(e) or 7(f) below, as many copies of the Time
of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which you reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter, the Company or the Selling
Stockholders being required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the
Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make
18
the statements therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the
information contained in the Registration Statement then on file, or if, in the opinion of counsel
for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to any dealer upon request, either amendments or supplements to
the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or
supplemented will not, in the light of the circumstances when delivered to a prospective purchaser,
be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to
which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request; provided that the Company shall not be
required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any
such jurisdiction if it is not otherwise so subject.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of
19
Section 11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
8. Expenses. Whether or not the transactions contemplated in this Agreement are consummated
or this Agreement is terminated, the Sellers agree to pay or cause to be paid all expenses incident
to the performance of their obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company’s counsel, the Company’s accountants and counsel for the
Selling Stockholders in connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus,
any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and
amendments and supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the
reasonable cost of printing or producing any Blue Sky or Legal Investment memorandum in connection
with the offer and sale of the Shares under state securities laws and all expenses in connection
with the qualification of the Shares for offer and sale under state securities laws as provided in
Section 7(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to
the Underwriters incurred in connection with the review and qualification of the offering of the
Shares by the Financial Industry Regulatory Authority (“FINRA”), (v) all fees and expenses in
connection with the preparation and filing of the registration statement on Form 8-A relating to
the Common Stock and all costs and expenses incident to listing the Shares on the NASDAQ Global
Select Market, (vi) the cost of printing certificates representing the Shares, (viii) the costs and
charges of any transfer agent, registrar or depositary, (ix) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the marketing
of the offering of the Shares, including, without limitation, expenses associated with the
preparation or dissemination of any electronic road show, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations with the prior approval of the Company, travel and lodging expenses of
the representatives and officers of the Company and any such consultants, and one-half of the cost
of any aircraft chartered in connection with the road show, (x) the document production charges and
expenses associated with printing this Agreement, and (xi) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in this Section,
Section 10 entitled “Indemnity and Contribution” and the last paragraph of Section 12 below, the
Underwriters will pay all of their costs and expenses, including fees and
20
disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect any agreement that the
Sellers may otherwise have for the allocation of such expenses among themselves.
9. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.
10. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any broadly available road show, any Company information that the Company has filed, or is required
to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or
supplement thereto, or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly for use therein.
(b) Each Selling Stockholder agrees, severally and not jointly, to indemnify and hold harmless
each Underwriter, each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any broadly available road show, any Company information that the Company has filed, or is
21
required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any
amendment or supplement thereto, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such Selling Stockholder furnished
in writing by or on behalf of such Selling Stockholder expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus or the Prospectus or any amendment or supplement thereto. The liability of each Selling
Stockholder under the indemnity agreement contained in this paragraph shall be limited to an amount
equal to the proceeds (net of underwriting discounts and concessions, but before deducting other
expenses) received by the Selling Stockholder from the sale of the Shares sold by such Selling
Stockholder under this Agreement.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Selling Stockholders, the directors of the Company, the officers of the Company who
sign the Registration Statement and each person, if any, who controls the Company or any Selling
Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment thereof, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined
in Rule 433(h) under the Securities Act, any broadly available road show, any Company information
that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act, or the Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the
Prospectus or any amendment or supplement thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 10(a), 10(b)
or 10(c), such person (the “indemnified party”) shall promptly notify the person against whom such
indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right to retain its own
counsel,
22
but the fees and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the
Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either such Section and (iii) the
fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling
Stockholders and all persons, if any, who control any Selling Stockholder within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as they are incurred.
In the case of any such separate firm for the Underwriters and such control persons and affiliates
of any Underwriters, such firm shall be designated in writing by the Representatives. In the case
of any such separate firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case of any such separate
firm for the Selling Stockholders and such control persons of any Selling Stockholders, such firm
shall be designated in writing by the persons named as attorneys-in-fact for the Selling
Stockholders under the Powers of Attorney. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement (x) includes an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding and (y) does not include a statement as
23
to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(e) To the extent the indemnification provided for in Section 10(a), 10(b) or 10(c) is
unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause 10(e)(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 10(e)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits received by the Sellers
on the one hand and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net proceeds from the
offering of the Shares (before deducting expenses) received by each Seller and the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Sellers or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Underwriters’ respective obligations to contribute pursuant to this Section 10 are several in
proportion to the respective number of Shares they have purchased hereunder, and not joint. The
liability of each Selling Stockholder under the contribution agreement contained in this paragraph
shall be limited to an amount equal to the proceeds (net of underwriting discounts and concessions,
but before deducting other expenses) received by the Selling Stockholder from the sale of the
Shares sold by such Selling Stockholder under this Agreement.
(f) The Sellers and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in Section 10(e). The amount
paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 10(e) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
24
in connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 10, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this Section 10 are not
exclusive and shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 10 and the
representations, warranties and other statements of the Company and the Selling Stockholders
contained in this Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter,
any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Stockholder
or any person controlling any Selling Stockholder, or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of the Shares.
11. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
either of the New York Stock Exchange or the NASDAQ Global Select Market, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or clearance services in the
United States shall have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (v) there shall have occurred any
outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the
Time of Sale Prospectus or the Prospectus. Notwithstanding anything in this Agreement to the
contrary, if this Agreement is terminated pursuant to clauses (i), (iii), (iv) and (v) of this
Section 11, then the obligation of the Company to reimburse the expenses of the Underwriters set
forth in clauses (iii) and (iv) of Section 8 are also terminated and of no further effect.
12. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
25
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 12 by an
amount in excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to you, the Company and the Selling Stockholders for the purchase of
such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or the Selling
Stockholders. In any such case either you or the relevant Sellers shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any
other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the
Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number
of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in
the absence of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of any Seller to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any Seller shall be unable to perform its
obligations under this Agreement, the Sellers will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
Notwithstanding anything in this Agreement to the
26
contrary, if the Agreement is terminated pursuant to this Section 12 for any reason other than
a failure, refusal or inability of any Seller described in this paragraph above, then any
obligations of the Company to reimburse the expenses of the Underwriters set forth in clauses (iii)
and (iv) of Section 8 of this Agreement are terminated and of no further effect.
13. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other, with respect to the
preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct
of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
14. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
15. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
17. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you in care of Xxxxxx
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate
Desk, with a copy to the Legal Department, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxx Xxxxxx Xxxx, Xxx Xxxx, XX 00000, Facsimile: (000) 000-0000, Attention: Syndicate Department,
with a copy to ECM Legal, Facsimile: (000) 000-0000, and to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX, 00000, Attention Xxxxxxx X. Xxxxx; if
to the Company shall be delivered, mailed or sent to Xxxxxxxx.xxx Inc., 000 Xxxx 0000 Xxxxx, Xxxxx,
Xxxx 00000, Attention Xxxxxxx Xxxxx, General Counsel, with a copy to Xxxxxx, Xxxx & Xxxxxxxx LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
27
Attention Xxxxxxx Xxxxxx, and if to the Selling Stockholders shall be delivered, mailed or
sent to [address].
Very truly yours, XXXXXXXX.XXX INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
28
The Selling Stockholders named in Schedule I hereto, acting severally |
||||
By: | ||||
Attorney-in Fact | ||||
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BMO Capital Markets Corp.
Xxxxxxxxx & Company, Inc.
Xxxxx Xxxxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BMO Capital Markets Corp.
Xxxxxxxxx & Company, Inc.
Xxxxx Xxxxxxx & Co.
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule II hereto
the several Underwriters named in
Schedule II hereto
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: | |||
Name: | |||
Title: | |||
29
SCHEDULE I
Number of Firm Shares | ||||
Selling Stockholder |
To Be Sold | |||
[NAMES OF SELLING STOCKHOLDERS] |
||||
Total: |
||||
I-1
SCHEDULE II
Number of Firm Shares | ||||
Underwriter |
To Be Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
||||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
||||
BMO Capital Markets Corp. |
||||
Xxxxxxxxx & Company, Inc. |
||||
Xxxxx Xxxxxxx & Co. |
||||
Total: |
||||
II-1
SCHEDULE III
Time of Sale Prospectus
1. | Preliminary Prospectus issued [date] | |
2. | [identify all free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act] | |
3. | [free writing prospectus containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a final term sheet] | |
4. | [orally communicated pricing information to be included on Schedule II if a final term sheet is not used] |
III-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
, 2009
Xxxxxx Xxxxxxx & Co. Incorporated |
||||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
||||
Xxxxxxxx & Company, Inc. |
||||
BMO Capital Markets Corp. |
||||
c/o Morgan Xxxxxxx & Co. Incorporated |
||||
0000 Xxxxxxxx |
||||
Xxx Xxxx, XX 00000 |
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx,” and together with
Xxxxxx Xxxxxxx, the “Representatives”) propose to enter into an Underwriting Agreement (the
“Underwriting Agreement”) with Xxxxxxxx.xxx Inc., a Delaware corporation (the “Company”), providing
for the public offering (the “Public Offering”) by the several Underwriters, including the
Representatives (the “Underwriters”), of shares (the “Shares”) of the common stock, $0.001 par
value per share, of the Company (the “Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of the Representatives on behalf of the Underwriters, it will not, during the
period commencing on the date set forth on the preliminary prospectus which is printed and
distributed to prospective investors and ending 180 days after the date of the final prospectus
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, (2) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise, or (3) publicly announce the intent to do any of the
foregoing; provided, however, that if the undersigned proposes to enter into a transaction
described in clause (1) or (2) above on or after the date hereof and before the date set forth on
the preliminary prospectus which is printed and distributed to prospective investors, the
undersigned shall notify the Representatives at least three business days prior to the proposed
transfer or disposition and each transferee or distributee shall sign and deliver a lock-up letter
substantially in the form of this letter. The foregoing sentence shall not apply to (a)
transactions relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering, provided that no filing under the
Securities Exchange Act of
1934, as amended (the “Exchange Act”) (other than a filing on a Form 5, Schedule 13D or
Schedule 13G (or 13D/A or 13G/A) made after the expiration of the restricted period referred to in
the foregoing sentence), shall be required or shall be voluntarily made in connection with
subsequent sales of Common Stock or other securities acquired in such open market transactions, (b)
transfers of shares of Common Stock or any security convertible into Common Stock as a bona fide
gift, (c) transfers of shares of Common Stock or any security convertible into Common Stock to any
trust for the direct or indirect benefit of the undersigned or the immediate family of the
undersigned; or (d) distributions of shares of Common Stock or any security convertible into Common
Stock to affiliates of the undersigned, including limited partners, members or stockholders of the
undersigned; provided that in the case of any transfer or distribution pursuant to clause (b), (c)
or (d), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the
form of this letter, (ii) no filing under the Exchange Act, reporting a reduction in beneficial
ownership of shares of Common Stock, shall be required or shall be voluntarily made during the
restricted period, and (iii) each party (transferor, transferee, donor or donee) shall not be
required by law (including without limitation the disclosure requirements of the Exchange Act) to
make, and shall agree to not voluntarily make, any public announcement of the transfer or
disposition (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or 13D/A or 13G/A) made
after the expiration of the restricted period), (e) the establishment of a trading plan pursuant to
Rule 10b5-1(c) under the Exchange Act for the transfer of shares of Common Stock, provided that
such plan does not provide for the transfer of Common Stock during the restricted period, or (f)
the sale of Shares to the Underwriters by the undersigned pursuant to the Underwriting Agreement.
In addition, the undersigned agrees that, without the prior written consent of the Representatives
on behalf of the Underwriters, it will not, during the period commencing on the date set forth on
the preliminary prospectus which is printed and distributed to prospective investors and ending 180
days after the date of the Prospectus, make any demand for or exercise any right with respect to,
the registration of any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company’s transfer agent and registrar against the transfer of the
undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.
If:
(1) during the last 17 days of the restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the restricted
period;
2
the restrictions imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the occurrence of the material
news or material event.
The undersigned shall not engage in any transaction that may be restricted by this agreement
during the 34-day period beginning on the last day of the initial restricted period unless the
undersigned requests and receives prior written confirmation from the Company or the
Representatives that the restrictions imposed by this agreement have expired.
The undersigned understands that the Company and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Public Offering. The undersigned further
understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriters.
It is understood that, if the Company notifies the Underwriters that it does not intend to
proceed with the public offering of the Shares, if the Underwriting Agreement does not become
effective by January 31, 2010, or if the Underwriting Agreement shall terminate or be terminated
prior to payment for and delivery of the Shares, the undersigned will be released from its
obligations under this Lock-Up Agreement.
Very truly yours, | ||
(Name) | ||
(Address) |
3