WATSON PHARMACEUTICALS, INC. 10,537,755 Shares of Common Stock Underwriting Agreement
Exhibit 1.1
XXXXXX PHARMACEUTICALS, INC.
10,537,755 Shares of Common Stock
November 11, 2010
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Quiver Inc., a British Virgin Islands limited liability company and a stockholder (the
“Selling Stockholder”) of Xxxxxx Pharmaceuticals, Inc., a Nevada corporation (the “Company”),
proposes to sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for
whom you are acting as representative (the “Representative”), 10,537,755 shares of common stock,
par value $0.0033 per share, of the Company (the “Shares”). To the extent there are no additional
Underwriters listed on Schedule 1 hereto other than you, the term Representative as used herein
shall mean you, as Underwriter, and the term Underwriters shall mean either the singular or plural
as the context requires. The shares of common stock of the Company to be outstanding after giving
effect to the sale of the Shares are referred to herein as the “Stock”.
The Company and the Selling Stockholder hereby confirm their agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement (File No. 333-161404), including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became effective, including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration
statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each
prospectus included in such registration statement (and any amendments thereto) before
effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the
Securities Act and the prospectus included in the Registration Statement at the time of its
effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Shares. If the Company has filed
an abbreviated registration statement 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. Any reference in this Agreement to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act, as of the effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend”,
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by
reference therein. Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively with the pricing information set forth on Annex B, the “Pricing
Disclosure Package”): a Preliminary Prospectus dated November 10, 2010, and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex B hereto.
“Applicable Time” means 9:00 A.M., New York City time, on November 11, 2010.
(a) The Selling Stockholder agrees to sell the Shares to the several Underwriters as provided
in this Agreement, and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Selling Stockholder at a purchase price per share of $49.58 (the
“Purchase Price”) the number of Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the number of Shares to be sold by the Selling Stockholder by a fraction,
the numerator of which is the aggregate number of Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule 1 hereto and the denominator of which is
the aggregate number of Shares to be purchased by all the Underwriters from the Selling Stockholder
hereunder.
(b) The Selling Stockholder understands that the Underwriters intend to make a public offering
of the Shares as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Shares on the terms set forth in the
Prospectus. The Selling Stockholder acknowledges and agrees that the Underwriters may offer and
sell Shares to or through any affiliate of an Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by or on behalf of the Attorneys-in-Fact (as defined below) to the
Representative at the offices of Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10:00 A.M. New York City time on November 17, 2010, or at such other time or place
on the same or such other date, not later than the fifth business day thereafter, as the
Representative and the Attorneys-in-Fact, or any one of them, may agree upon in writing. The time
and date of such payment for the Shares is referred to herein as the “Closing Date.”
Payment for the Shares shall be made against delivery to the Representative for the respective
accounts of the several Underwriters of the Shares, with any transfer taxes payable in connection
with the sale of such Shares duly paid by the Selling Stockholder. Delivery of the Shares shall be
made through the facilities of The Depository Trust Company unless the Representative shall
otherwise instruct. The certificates for the Shares will be made available for inspection and
packaging by the Representative at the office of DTC or its designated custodian not later than
1:00 P.M., New York City time, on the business day prior to the Closing Date.
(d) Each of the Company and the Selling Stockholder acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the
Selling Stockholder with respect to the offering of Shares contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company, the Selling Stockholder or any other person.
Additionally, neither the Representative nor any
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other Underwriter is advising the Company, the Selling Stockholder or any other person as to
any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and
the Selling Stockholder shall consult with their own advisors concerning such matters and shall be
responsible for making their own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
or the Selling Stockholder with respect thereto. Any review by the Underwriters of the Company,
the transactions contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or
the Selling Stockholder.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter and the Selling Stockholder that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus
included in the Pricing Disclosure Package, at the time of filing thereof, complied in all
material respects with the Securities Act, and no Preliminary Prospectus, at the time of
filing thereof, contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representative expressly for use in
any Preliminary Prospectus, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 9(c)
hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use in such Pricing Disclosure Package,
it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 9(c) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not prepared,
used, authorized, approved or referred to and will not prepare, use, authorize, approve or
refer to any “written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Shares (each such
communication by the Company or its agents and representatives (other than a communication
referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i) any
document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act or (ii) the documents listed on Annex B hereto, each
electronic road show and any other written communications approved in writing in advance by
the Representative. Each such Issuer Free Writing Prospectus complied in all material
respects with the Securities Act, has been or will be (within the time period specified in
Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and,
when taken together with the Preliminary Prospectus filed prior to the first use of such
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Issuer Free Writing Prospectus, did not, and as of the Closing Date will not, contain
any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and warranty
with respect to any statements or omissions made in each such Issuer Free Writing Prospectus
or Preliminary Prospectus in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use in such Issuer Free Writing Prospectus or Preliminary
Prospectus, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 9(c) hereof.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405 of the Securities Act that has been
filed with the Commission not earlier than three years prior to the date hereof; and no
notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has
been received by the Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission, and no proceeding for that purpose or pursuant
to Section 8A of the Securities Act against the Company or related to the offering of the
Shares has been initiated or threatened by the Commission; as of the applicable effective
date of the Registration Statement and any post-effective amendment thereto, the
Registration Statement and any such post-effective amendment complied and will comply in all
material respects with the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of
the Prospectus and any amendment or supplement thereto and as of the Closing Date, the
Prospectus will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representative expressly for use in
the Registration Statement and the Prospectus and any amendment or supplement thereto, it
being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 9(c) hereof.
(e) Incorporated Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, when they were
filed with the Commission conformed in all material respects to the requirements of the
Exchange Act, and none of such documents contained any untrue statement of a material fact
or omitted to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any further documents
so filed and incorporated by reference in the Registration Statement, the Prospectus or the
Pricing Disclosure Package, when such documents are filed with the Commission, will conform
in all material respects to the requirements of the Exchange Act and 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.
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(i) The financial statements together with the related notes thereto of the
Company incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus present fairly, in all material respects, the
consolidated financial position of the Company and its subsidiaries as of and at
the dates indicated and the results of their operations and cash flows for the
periods specified. Such financial statements comply in all material respects as to
form with the accounting requirements of the Securities Act and 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, except
as may be expressly stated in the related notes thereto. The selected financial
data and the summary financial information of the Company included in the
Registration Statement, Pricing Disclosure Package and the Prospectus present
fairly the information shown therein and have been compiled on a basis consistent
with that of the Company’s audited financial statements included in the
Registration Statement, the Pricing Disclosure Package and the Prospectus. In
addition, the pro forma financial statements of the Company and its
subsidiaries and the related notes thereto included in the Registration Statement,
the Pricing Disclosure Package and the Prospectus present fairly, in all material
respects, the information shown therein, have been prepared in accordance with the
Commission’s rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and circumstances
referred to therein.
(ii) The audited consolidated financial statements together with the related
notes thereto of Xxxxx Xxxx Holdings Limited (“Xxxxx Xxxx”) included in the
Registration Statement, the Pricing Disclosure Package and the Prospectus present
fairly, in all material respects, the consolidated financial position of Xxxxx Xxxx
and its subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. The audited consolidated
financial statements and the condensed consolidated unaudited financial information
together with the related notes thereto of Xxxxx Xxxx attached to the letter
referred to in Section 8(f) present fairly, in all material respects, the
consolidated financial position of Xxxxx Xxxx and its subsidiaries as of and at the
dates indicated and the results of their operations and cash flows for the periods
specified. All such financial statements comply in all material respects as to form
with the applicable accounting requirements of the Securities Act and have been
prepared in conformity with International Financial Reporting Standards applied on
a consistent basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. No other financial statements of Xxxxx Xxxx
are required to be included in the Registration Statement or the Prospectus. The
selected financial data and the summary financial information of Xxxxx Xxxx
included in the Registration Statement, the Pricing Disclosure Package and the
Prospectus present fairly the information shown therein and have been compiled on a
basis consistent with that of Xxxxx Xxxx’x audited consolidated financial
statements included in the Registration Statement, the Pricing Disclosure Package
and the Prospectus.
(g) No Material Adverse Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, (i) there has not been any change in the
capital stock (other than the issuance of shares of Common Stock upon exercise of stock
options and warrants described as outstanding in, and the grant of options and awards under
existing equity incentive plans described in, the Registration Statement, the Pricing
Disclosure Package and the
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Prospectus), short-term debt or long-term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set aside for payment,
paid or made by the Company on any class of capital stock, or any material adverse change,
or any development that could reasonably be expected to result in a material adverse change
in the condition, financial or otherwise, or in the earnings, stockholders’ equity,
management, business, properties, results of operations or prospects of the Company and its
subsidiaries considered as one entity, whether or not arising from transactions in the
ordinary course of business; (ii) neither the Company nor any of its subsidiaries has
entered into any transaction or agreement (whether or not in the ordinary course of
business) that is material to the Company and its subsidiaries taken as a whole or incurred
any liability or obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business that is material to the Company and its
subsidiaries taken as a whole and that is either from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor disturbance or dispute or
any action, order or decree of any court or arbitrator or governmental or regulatory
authority, except in each case as otherwise disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(h) Incorporation and Good Standing of the Company and its Subsidiaries. Each of the
Company and its significant subsidiaries has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its incorporation
and has corporate power and authority to own or lease, as the case may be, and operate its
properties and to conduct its business as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus and, in the case of the Company, to enter into
and perform its obligations under this Agreement and each of the Company and each
significant subsidiary is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse Change (as defined below).
All of the issued and outstanding shares of capital stock of each subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable and are owned by the
Company, directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim. The Company does not have any subsidiary not
listed on Exhibit 21 to its Annual Report on Form 10-K for the year ended December 31, 2009,
which is required to be so listed. The subsidiaries listed in Schedule 2 to this Agreement
are the only significant subsidiaries of the Company.
As used herein, the term “Material Adverse Change” means any material adverse change,
or any development that could reasonably be expected to result in a material adverse change,
(x) in the condition, financial or otherwise, or in the earnings, stockholders’ equity,
management, business, properties, results of operations or prospects of the Company and its
subsidiaries considered as one entity, whether or not arising from transactions in the
ordinary course of business or (y) in the ability of the Company to perform its obligations
under, or to consummate the transactions contemplated by, this Agreement.
(i) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company (including the
Shares to be sold by the Selling Stockholder) have been duly and validly authorized and
issued and are fully paid and non-assessable and are not subject to any pre-emptive or
similar rights; except as described in or expressly contemplated by the Pricing Disclosure
Package and the Prospectus, there are no outstand-
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ing rights (including, without limitation, pre-emptive rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of capital stock or
other equity interest in the Company or any of its subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options; the capital stock of the
Company conforms in all material respects to the description thereof contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of each subsidiary owned,
directly or indirectly, by the Company have been duly and validly authorized and issued, are
fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’
qualifying shares and except as otherwise described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus,) and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security interest, restriction on
voting or transfer or any other claim of any third party.
(j) Stock Options. With respect to the stock options (the “Stock Options”) granted
pursuant to the stock-based compensation plans of the Company and its subsidiaries (the
“Company Stock Plans”), (i) each Stock Option intended to qualify as an “incentive stock
option” under Section 422 of the Code so qualifies, (ii) each grant of a Stock Option was
duly authorized no later than the date on which the grant of such Stock Option was by its
terms to be effective (the “Grant Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a duly constituted and
authorized committee thereof) and any required stockholder approval by the necessary number
of votes or written consents, and the award agreement governing such grant (if any) was duly
executed and delivered by each party thereto, (iii) each such grant was made in accordance
with the terms of the Company Stock Plans, the Exchange Act and all other applicable laws
and regulatory rules or requirements, including the rules of the New York Stock Exchange and
any other exchange on which Company securities are traded, and (iv) each such grant was
properly accounted for in accordance with GAAP in the financial statements (including the
related notes) of the Company and disclosed in the Company’s filings with the Commission in
accordance with the Exchange Act and all other applicable laws. The Company has not
knowingly granted, and there is no and has been no policy or practice of the Company of
granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options with,
the release or other public announcement of material information regarding the Company or
its subsidiaries or their results of operations or prospects.
(k) Due Authorization. The Company has full right, power and authority to execute and
deliver this Agreement and to perform its obligations hereunder; and all action required to
be taken for the due and proper authorization, execution and delivery by it of this
Agreement and the consummation by it of the transactions contemplated hereby has been duly
and validly taken.
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(m) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals
Required. None of the Company or any significant subsidiary is (i) in violation or in
default (or, with the giving of notice or lapse of time or both, would be in default)
(“Default”) under its charter, by laws or other organizational documents, (ii) in Default
under any indenture, mortgage, loan or credit agreement, deed of trust, note, contract,
franchise, lease or other agreement, obligation, condition, covenant or instrument to which
the Company or any of its subsidiaries is a party or by which it or any of them may be bound
or to which any of the property or assets of the Company or any of its subsidiaries is
subject (each, an “Existing Instrument”) or (iii) in violation
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of any statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its subsidiaries or any of its or their
properties, as applicable, except, with respect to clause (ii) and (iii) of this sentence
only, for such Defaults as would not, individually or in the aggregate, result in a Material
Adverse Change. The Company’s execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by the Registration Statement, the Pricing
Disclosure Package and by the Prospectus, (i) have been duly authorized by all necessary
action (corporate or otherwise) and will not result in any Default under the charter, by
laws or other organizational documents of the Company or any of its subsidiaries, (ii) will
not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event
(as defined below) under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its subsidiaries, pursuant
to, or require the consent of any other party to, any Existing Instrument, and (iii) will
not result in any violation of any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their properties, except, with
respect to clause (ii) of this sentence, for such conflict, breach, Defaults, Debt Repayment
Triggering Event (as defined below), lien, charge, encumbrance, consent or violation as
would not, individually or in the aggregate, result in a Material Adverse Change. No
consent, approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency is required for the Company’s
execution, delivery and performance of this Agreement or consummation of the transactions
contemplated hereby, by the Registration Statement, the Pricing Disclosure Package or by the
Prospectus, except such as have been obtained or made by the Company, and are in full force
and effect under the Securities Act, applicable state securities or blue sky laws. As used
herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or
with the giving of notice or lapse of time or both would give, the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such holder’s behalf)
issued by the Company or any of its subsidiaries the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company or any of
its subsidiaries, as the case may be.
(n) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement and
the consummation by the Company of the transactions contemplated by this Agreement, except
for the registration of the Shares under the Securities Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may be required under
applicable state securities laws in connection with the purchase and distribution of the
Shares by the Underwriters.
(o) No Material Adverse Actions or Proceedings. Except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no
legal or governmental actions, suits or proceedings pending or, to the best of the Company’s
knowledge, threatened (i) against or affecting the Company or any of its subsidiaries, (ii)
which has as the subject thereof any officer or director of, or property owned or leased by,
the Company or any of its subsidiaries or (iii) relating to environmental or discrimination
matters related to the Company or its subsidiaries, where any such action, suit or
proceeding, if determined adversely, could, individually or in the aggregate, result in a
Material Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement, the Registration Statement, the Pricing Disclosure Package
or the Prospectus. There are no statutes, regulations or contracts or other documents that
are required under the Securities Act to be filed as exhibits to the Registra-
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tion Statement, the Pricing Disclosure Package or the Prospectus that are not so filed
as exhibits to the Registration Statement or described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(p) Independent Accountants. PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, is an independent registered
public accounting firm with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities Act. KPMG, who have
audited certain financial statements of Xxxxx Xxxx and its subsidiaries, was an independent
auditor as of February 15, 2010 with respect to Xxxxx Xxxx and its subsidiaries under Rule
101 of the AICPA Code of Professional Conduct.
(q) Title to Real and Personal Property. The Company and its subsidiaries have good
and marketable title in fee simple (in the case of real property) to, or have valid and
marketable rights to lease or otherwise use, all items of real and personal property and
assets that are material to the respective businesses of the Company and its subsidiaries,
in each case free and clear of all liens, encumbrances, claims and defects and imperfections
of title except those that (i) do not materially interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries or (ii) could not reasonably be
expected, individually or in the aggregate, to result in a Material Adverse Change.
(r) Intellectual Property Rights. Except as set forth in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, to the Company’s knowledge, the Company
and its subsidiaries own or possess a valid right to use all patents, trademarks, service
marks, trade names, copyrights, patentable inventions, trade secret, know-how and other
intellectual property (collectively, the “Intellectual Property”) used by the Company or its
subsidiaries in, and material to, the conduct of the Company’s or its subsidiaries’ business
as now conducted or as proposed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus to be conducted, except where the failure to so own or have the
right to use such Intellectual Property would not, individually or in the aggregate, result
in a Material Adverse Change. Except as set forth in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there is no material infringement by third parties of
any of the Company’s or its subsidiaries’ Intellectual Property and there are no legal or
governmental actions, suits, proceedings or claims pending or, to the Company’s knowledge,
threatened, against the Company or any of its subsidiaries (i) challenging the Company’s or
any of its subsidiaries’ rights in or to any Intellectual Property, (ii) challenging the
validity or scope of any Intellectual Property owned by the Company or any of its
subsidiaries, or (iii) alleging that the operation of the Company’s or its subsidiaries’
business as now conducted infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of a third party and which infringement,
invalidity, inadequacy or violation would, individually or in the aggregate, result in a
Material Adverse Change, and the Company is unaware of any facts which would form a
reasonable basis for any such claim.
(s) No Undisclosed Relationships. No relationship, direct or indirect, exists between
or among the Company or any of its subsidiaries, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its subsidiaries, on
the other, that is required by the Securities Act to be described in the Registration
Statement and the Prospectus and that is not so described in such documents and in the
Pricing Disclosure Package.
-9-
(t) Investment Company Act. 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 Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be
required to register as an “investment company” or an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(u) Tax Law Compliance. The Company and its subsidiaries have filed all necessary
federal, state, local and foreign income and franchise tax returns in a timely manner and
have paid all taxes required to be paid by any of them and, if due and payable, any related
assessment, fine or penalty levied against any of them, except for any taxes, assessments,
fines or penalties as may be contested in good faith and by appropriate proceedings, except
to the extent a failure to make such filings or payments would not result in a Material
Adverse Change.
(v) All Necessary Permits, etc. The Company and each of its significant subsidiaries
possess such valid and current certificates, permits, licenses, approvals, consents and
other authorizations issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct their respective businesses, and none of the Company or any
of its significant subsidiaries has received any notice of proceedings relating to the
revocation or modification of, or non-compliance with, any such certificate, permit,
license, approval, consent or other authorization which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could result in a Material Adverse
Change.
(w) Labor Matters. Except as disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, no material dispute with the employees of the Company
or any of its subsidiaries exists, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers,
contractors or customers, that could, individually or in the aggregate, result in a Material
Adverse Change.
(x) Compliance with Environmental Laws. Except as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there has been no
storage, disposal, generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its subsidiaries (or, to the knowledge of the Company, any of their
respective predecessors in interest) at, upon or from any of the property now or previously
owned or leased by the Company or its subsidiaries, in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which would not, individually
or in the aggregate, result in Material Adverse Change; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by the
Company or any of its subsidiaries, or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have resulted in or would not be
reasonably likely to result in a Material Adverse Change; and the terms “hazardous wastes”,
“toxic wastes”, “hazardous substances” and “medical wastes” shall have the meanings
specified in any applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
-10-
(y) Compliance with ERISA. (i) Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
for which the Company or any member of its “Controlled Group” (defined as any organization
which is a member of a controlled group of corporations within the meaning of Section 414 of
the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each,
a “Plan”) has been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to, ERISA and
the Code, except for noncompliance that could not reasonably be expected to result in
material liability to the Company or its subsidiaries; (ii) no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with
respect to any Plan excluding transactions effected pursuant to a statutory or
administrative exemption that could reasonably be expected to result in a material liability
to the Company or its subsidiaries; (iii) for each Plan that is subject to the funding rules
of Section 412 of the Code or Section 302 of ERISA, the minimum funding standard of Section
412 of the Code or Section 302 of ERISA, as applicable, has been satisfied (without taking
into account any waiver thereof or extension of any amortization period) and is reasonably
expected to be satisfied in the future (without taking into account any waiver thereof or
extension of any amortization period); (iv) the fair market value of the assets of each Plan
exceeds the present value of all benefits accrued under such Plan (determined based on those
assumptions used to fund such Plan); (v) no “reportable event” (within the meaning of
Section 4043(c) of ERISA) has occurred or is reasonably expected to occur that either has
resulted, or could reasonably be expected to result, in material liability to the Company or
its subsidiaries; (vi) neither the Company nor any member of the Controlled Group has
incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC, in the ordinary course and without
default) in respect of a Plan (including a “multiemployer plan”, within the meaning of
Section 4001(a)(3) of ERISA); and (vii) there is no pending audit or investigation by the
Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty
Corporation or any other governmental agency or any foreign regulatory agency with respect
to any Plan that could reasonably be expected to result in material liability to the Company
or its subsidiaries. None of the following events has occurred or is reasonably likely to
occur: (x) a material increase in the aggregate amount of contributions required to be made
to all Plans by the Company or its subsidiaries in the current fiscal year of the Company
and its subsidiaries compared to the amount of such contributions made in the Company and
its subsidiaries’ most recently completed fiscal year; or (y) a material increase in the
Company and its subsidiaries’ “accumulated post-retirement benefit obligations” (within the
meaning of Statement of Financial Accounting Standards 106) compared to the amount of such
obligations in the Company and its subsidiaries’ most recently completed fiscal year.
(z) Disclosure Controls. The Company and its subsidiaries maintain an effective system
of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act)
that complies with the requirements of the Exchange Act and that has been designed to ensure
that information required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(aa) Accounting Controls. The Company and its subsidiaries maintain systems of
“internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange
Act) that
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comply with the requirements of the Exchange Act and have been designed by, or under
the supervision of, their respective principal executive and principal financial officers,
or persons performing similar functions, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles, including, but not
limited to, 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. Based on the Company’s most recent evaluation of
its internal controls over financial reporting pursuant to Rule 13a-15(c) of the Exchange
Act, except as disclosed in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, there are no material weaknesses in the Company’s internal controls. The
Company’s auditors and the Audit Committee of the Board of Directors of the Company have
been advised of: (i) all significant deficiencies and material weaknesses in the design or
operation of internal controls over financial reporting which have adversely affected or are
reasonably likely to adversely affect the Company’s ability to record, process, summarize
and report financial information; and (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s internal controls
over financial reporting.
(bb) Insurance. The Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including business interruption
insurance, which insurance is in amounts and insures against such losses and risks as are
adequate to protect the Company and its subsidiaries and their respective businesses; and
neither the Company nor any of its subsidiaries has (i) received notice from any insurer or
agent of such insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage at reasonable cost from similar insurers as may be
necessary to continue its business.
(cc) No Unlawful Contributions or Other Payments. None of the Company or any of its
subsidiaries is aware of, and to the knowledge of the Company, no director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is aware of, or has taken
any action, directly or indirectly, that would result in a violation by such persons of the
FCPA, including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA, and the Company, its subsidiaries
and affiliates of the Company have conducted their businesses in compliance with the FCPA
and have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
(dd) No Conflict with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance in all material respects
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with applicable financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries, with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(ee) No Conflict with OFAC Laws. None of the Company or any of its subsidiaries, nor,
to the knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds, to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(ff) No Restrictions on Subsidiaries. No subsidiary of the Company is currently
prohibited, directly or indirectly, under any agreement or other instrument to which it is a
party or is subject, from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such subsidiary’s
properties or assets to the Company or any other subsidiary of the Company.
(gg) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person (other than this Agreement) that
would give rise to a valid claim against the Company or any of its subsidiaries or any
Underwriter for a brokerage commission, finder’s fee or like payment in connection with the
offering and sale of the Shares.
(hh) No Registration Rights. No person has the right to require the Company or any of
its subsidiaries to register any securities for sale under the Securities Act by reason of
the filing of the Registration Statement with the Commission or, to the knowledge of the
Company, the sale of the Shares to be sold by the Selling Stockholder hereunder, other than
such rights that have been waived or satisfied.
(ii) No Stabilization. The Company has not taken, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Shares.
(jj) Business with Cuba. The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida, as amended) relating to doing
business with the Government of Cuba or with any person or affiliate located in Cuba.
(kk) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the
Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
-13-
(ll) Statistical and Market Data. Nothing has come to the attention of the Company
that has caused the Company to believe that the statistical and market-related data included
in the Registration Statement, the Pricing Disclosure Package and the Prospectus is not
based on or derived from sources that are reliable and accurate in all material respects.
(mm) Xxxxxxxx-Xxxxx Compliance. There is and has been no failure on the part of the
Company and any of the Company’s directors or officers, in their capacities as such, to
comply in all material respects with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 related to loans and Sections 302 and 906 related to certifications.
(nn) Status Under the Securities Act. At the time of filing the Registration Statement
and any post-effective amendment thereto, at the earliest time thereafter that the Company
or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)
under the Securities Act) of the Shares and at the date hereof, the Company was not and is
not an “ineligible issuer”, and is a well-known seasoned issuer, in each case as defined in
Rule 405 under the Securities Act. The Company has paid the registration fee for this
offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such fee within the
time period required by such rule (without giving effect to the proviso therein) and in any
event prior to the Closing Date.
4. Representations and Warranties of the Selling Stockholder. The Selling Stockholder
represents and warrants to each Underwriter and the Company that:
(a) Required Consents; Authority. All consents, approvals, authorizations and orders
necessary for the execution and delivery by the Selling Stockholder of this Agreement and
the Power of Attorney (the “Power of Attorney”) hereinafter referred to, and for the sale
and delivery of the Shares to be sold by the Selling Stockholder hereunder, have been
obtained; and the Selling Stockholder has full right, power and authority to enter into this
Agreement and the Power of Attorney to sell, assign, transfer and deliver the Shares to be
sold by the Selling Stockholder hereunder; and this Agreement and the Power of Attorney have
each been duly authorized, executed and delivered by the Selling Stockholder.
(b) No Conflicts. The execution, delivery and performance by the Selling Stockholder
of this Agreement and the Power of Attorney, the sale of the Shares to be sold by the
Selling Stockholder and the consummation by the Selling Stockholder of the transactions
contemplated herein or therein will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Selling Stockholder pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property or assets of the Selling
Stockholder is subject, (ii) result in any violation of the provisions of the charter or
by-laws or similar organizational documents of the Selling Stockholder or (iii) result in
the violation of any law or statute or any judgment, order, rule or regulation of any court
or arbitrator or governmental or regulatory agency.
(c) Title to Shares. The Selling Stockholder has good and valid title to the Shares to
be sold at the Closing Date by the Selling Stockholder hereunder, free and clear of all
liens, encumbrances, equities or adverse claims; the Selling Stockholder will have,
immediately prior to the Closing Date, good and valid title to the Shares to be sold at the
Closing Date by the Selling Stockholder, free and clear of all liens, encumbrances, equities
or adverse claims; and, upon deli-
-14-
very of the certificates in book-entry form representing such Shares and payment
therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or adverse claims, will pass to the several Underwriters.
(d) No Stabilization. The Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Shares.
(e) Pricing Disclosure Package. The Pricing Disclosure Package, at the Applicable Time
did not, and at the Closing Date, will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the Selling Stockholder’s representation under this Section 4(e) shall
only apply to any untrue statement of a material fact or omission to state a material fact
made in reliance upon and in conformity with any information relating to the Selling
Stockholder furnished to the Company in writing by the Selling Stockholder expressly for use
in the Pricing Disclosure Package (including any Pricing Disclosure Package that has
subsequently been amended).
(f) Issuer Free Writing Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Selling Stockholder (including its agents and
representatives, other than the Underwriters in their capacity as such) has not made, used,
prepared, authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any Issuer Free Writing Prospectus, other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on Annex B hereto, each electronic
road show and any other written communications approved in writing in advance by the Company
and the Representative.
(g) Registration Statement and Prospectus. As of the applicable effective date of the
Registration Statement and any post-effective amendment thereto, the Registration Statement
and any such post-effective amendment complied and will comply in all material respects with
the Securities Act, and did not and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and as of the date of the Prospectus and any
amendment or supplement thereto and as of the Closing Date the Prospectus will not contain
any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Selling Stockholder’s
representation under this Section 4(g) shall only apply to any untrue statement of a
material fact or omission to state a material fact made in reliance upon and in conformity
with any information relating to the Selling Stockholder furnished to the Company in writing
by the Selling Stockholder expressly for use in the Registration Statement or the Prospectus
(or any amendment or supplement thereto).
(h) Material Information. As of the date hereof and as of the Closing Date the sale of
the Shares by the Selling Stockholder is not and will not be prompted by any material
information concerning the Company which is not set forth in the Registration Statement, the
Pricing Disclosure Package or the Prospectus.
The Selling Stockholder represents and warrants that certificates in book-entry form
representing all of the Shares to be sold by the Selling Stockholder hereunder are held in
registered book-entry form with American Stock Transfer and Trust Company and are subject to a duly
executed transfer instruction
-15-
on behalf of the Selling Stockholder, and that the Selling Stockholder has duly executed and
delivered a Power of Attorney, in the form heretofore furnished to you, appointing each of Xxxxxxx
Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxxx as an Attorney-in-fact (each, an “Attorney-in-Fact” and together
the “Attorneys-in-Fact”) for the Selling Stockholder, with authority to execute and deliver this
Agreement on behalf of the Selling Stockholder, to determine the purchase price to be paid by the
Underwriters to the Selling Stockholder as provided herein, to authorize the delivery of the Shares
to be sold by the Selling Stockholder hereunder and otherwise to act on behalf of the Selling
Stockholder in connection with the transactions contemplated by this Agreement.
The Selling Stockholder specifically agrees that the Shares represented by the certificates in
book-entry form held in custody for the Selling Stockholder are subject to the interests of the
Underwriters hereunder, and that the arrangements made by the Selling Stockholder for such custody,
and the appointment by the Selling Stockholder of each of the Attorneys-in-Fact by the Power of
Attorney, are to that extent irrevocable. The Selling Stockholder specifically agrees that the
obligations of the Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling Stockholder, or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or the termination of such
estate or trust, or in the case of a partnership, corporation or similar organization, by the
dissolution of such partnership, corporation or organization, or by the occurrence of any other
event. If any individual Selling Stockholder or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be terminated, or if any such partnership,
corporation or similar organization should be dissolved, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates in book-entry form representing such
Shares shall be delivered by or on behalf of the Selling Stockholder in accordance with the terms
and conditions of this Agreement, and actions taken by the Attorneys-in-Fact, or any one of them,
pursuant to the Power of Attorney shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or not the Custodian or the
Attorneys-in-Fact shall have received notice of such death, incapacity, termination, dissolution or
other event.
5. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule
433 under the Securities Act; will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Shares; and will furnish copies of the Prospectus and each
Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters
in New York City prior to 10:00 A.M., New York City time, on the business day next
succeeding the date of this Agreement in such quantities as the Representative may
reasonably request. The Company will pay the registration fee for this offering within the
time period required by Rule 456(b)(1) under the Securities Act (without giving effect to
the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the
Representative, two signed copies of the Registration Statement as originally filed and each
amendment thereto, in each case including all exhibits and consents filed therewith; and
(ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally
filed and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery
Period (as defined below), as
-16-
many copies of the Prospectus (including all amendments and supplements thereto and
documents incorporated by reference therein and each Issuer Free Writing Prospectus) as the
Representative may reasonably request. As used herein, the term “Prospectus Delivery
Period” means such period of time after the first date of the public offering of the Shares
as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is
required by law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before making,
preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration Statement or
the Prospectus, whether before or after the time that the Registration Statement becomes
effective, the Company will furnish to the Representative and counsel for the Underwriters a
copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and
will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which the Representative
reasonably objects.
(d) Notice to the Representative. The Company will advise the Representative promptly,
and confirm such advice in writing, (i) when the Registration Statement has become
effective; (ii) when any amendment to the Registration Statement has been filed or becomes
effective; (iii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus
or any amendment to the Prospectus has been filed; (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to the Prospectus
or the receipt of any comments from the Commission relating to the Registration Statement or
any other request by the Commission for any additional information; (v) of the issuance by
the Commission of any order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus, any of the Pricing
Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any
event within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing
Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances
existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; (vii) of the receipt by the Company
of any notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and
(viii) of the receipt by the Company of any notice with respect to any suspension of the
qualification of the Shares for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use its best efforts to
prevent the issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus, any of the
Pricing Disclosure Package or the Prospectus or suspending any such qualification of the
Shares and, if any such order is issued, will obtain as soon as possible the withdrawal
thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event
shall occur or condition shall exist as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company
will immediately notify the Underwri-
-17-
ters thereof and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the Representative may
designate such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law and (2) if at any time prior to the Closing Date
(i) any event shall occur or condition shall exist as a result of which the Pricing
Disclosure Package as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances existing when the Pricing Disclosure Package is
delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the
Pricing Disclosure Package to comply with law, the Company will immediately notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with
the Commission (to the extent required) and furnish to the Underwriters and to such dealers
as the Representative may designate, such amendments or supplements to the Pricing
Disclosure Package as may be necessary so that the statements in the Pricing Disclosure
Package as so amended or supplemented will not, in the light of the circumstances existing
when the Pricing Disclosure Package is delivered to a purchaser, be misleading or so that
the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Company will use its reasonable best efforts to qualify
the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Representative shall reasonably request and will continue such qualifications in effect
so long as required for distribution of the Shares; 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.
(g) Earning Statement. The Company will make generally available to its security
holders and the Representative as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158)
of the Registration Statement.
(h) Clear Market. For a period of 60 days after the date of the Prospectus, the
Company will not (i) 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, or otherwise transfer or dispose of, directly or indirectly, or file with the
Commission a registration statement under the Securities Act relating to, any shares of
Stock or any securities convertible into or exercisable or exchangeable for Stock, or
publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or
(ii) enter into any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Stock or any such other securities, whether any
such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock
or such other securities, in cash or otherwise, without the prior written consent of the
Representative, other than the Shares to be sold hereunder and any shares of Stock of the
Company issued upon the exercise of options granted under Company Stock Plans.
Notwithstanding the foregoing, if (1) during the last 17 days of the 60-day restricted
period, the Company issues an earnings release or material news or a material event relating
to the Company occurs; or (2) prior to the expiration of the 60-day restricted period, the
Company announces that it will release earn-
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ings results during the 16-day period beginning on the last day of the 60-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.
(i) No Stabilization. The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Stock.
(j) Exchange Listing. The Company will use its reasonable best efforts to list the
Shares on the New York Stock Exchange (the “Exchange”).
(k) Reports. During the Prospectus Delivery Period, the Company will furnish to the
Representative, as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of any reports and
financial statements furnished to or filed with the Commission or any national securities
exchange or automatic quotation system; provided the Company will be deemed to have
furnished such reports and financial statements to the Representative to the extent they are
filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
(l) Record Retention. The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
(m) Waiver of Certain Restrictions. Solely to the extent that any such provisions
would have the effect of prohibiting or impairing the consummation of the transactions
contemplated by this Agreement, including without limitation the purchase, registration and
sale of the Shares, the Company hereby irrevocably waives any and all transfer restrictions,
restrictions on registration and similar restrictions contained in (i) that certain Share
Purchase Agreement by and among Xxxxx Xxxx Holdings Limited, the Company, certain
shareholders of Xxxxx Hoods Limited, and Xxxxxxx Xxxxxx Xxxxxxxxx, solely in his capacity as
the Shareholders’ Representative, dated as of June 16, 2009, as amended (the “Share Purchase
Agreement”) and (ii) that certain Shareholders Agreement by and among the Company and the
Selling Stockholder dated as of December 2, 2009 (the “Shareholders Agreement”), including
without limitation Section 6.12 of the Share Purchase Agreement and Section 4 of the
Shareholders Agreement. The Company acknowledges and agrees that upon the purchase thereof
by the Underwriters, the Shares shall be free from any and all transfer restrictions under
the Share Purchase Agreement and the Shareholders Agreement and that such Shares shall not
bear any Transfer Restriction Legend (as defined in the Share Purchase Agreement).
6. Further Agreements of the Selling Stockholder. The Selling Stockholder covenants
and agrees with each Underwriter that:
(a) Clear Market. Prior to or as of the date hereof, the Selling Stockholder shall
execute and deliver a “lock-up” agreement in the form attached hereto as Exhibit A.
(b) Tax Form. The Selling Stockholder will deliver to the Representative prior to or
at the Closing Date a properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by the Treasury Department regulations
in lieu thereof) in order to facilitate the Underwriters’ documentation of their compliance
with the
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reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 with respect to the transactions herein contemplated.
7. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for
use of, and will not use, authorize use of, refer to, or participate in the planning for use
of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and
not incorporated by reference into the Registration Statement and any press release issued
by the Company) other than (i) a free writing prospectus that contains no “issuer
information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included
(including through incorporation by reference) in the Preliminary Prospectus or a previously
filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on
Annex B or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic
road show), or (iii) any free writing prospectus prepared by such underwriter and approved
by the Company in advance in writing (each such free writing prospectus referred to in
clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Shares unless such terms have
previously been included in a free writing prospectus filed with the Commission;
provided that Underwriters may use a term sheet substantially in the form of Annex C
hereto without the consent of the Company; provided further that any
Underwriter using such term sheet shall notify the Company, and provide a copy of such term
sheet to the Company, prior to, or substantially concurrently with, the first use of such
term sheet.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
8. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Shares on the Closing Date as provided herein is subject to the performance by the
Company and the Selling Stockholder of their respective covenants and other obligations hereunder
and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant
to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before
or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus
shall have been timely filed with the Commission under the Securities Act (in the case of an
Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act)
and in accordance with Section 5(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the reasonable satisfaction of the
Representative.
(b) Representations and Warranties. The respective representations and warranties of
the Company and the Selling Stockholder contained herein shall be true and correct on the
date hereof and on and as of the Closing Date and the statements of the Company and its
officers and of the Selling Stockholder made in any certificates delivered pursuant to this
Agreement shall be true and correct on and as of the Closing Date.
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(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B)
the execution and delivery of this Agreement, if there are any debt securities or preferred
stock of or guaranteed by the Company or any of its subsidiaries that are rated by a
“nationally recognized statistical rating organization,” as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act, (i) no downgrading shall
have occurred in the rating accorded any such debt securities or preferred stock and (ii) no
such organization shall have publicly announced that it has under surveillance or review, or
has changed its outlook with respect to, its rating of any such debt securities or preferred
stock (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section
3(g) hereof shall have occurred or shall exist, which event or condition is not described in
the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the
Prospectus (excluding any amendment or supplement thereto) and the effect of which in the
judgment of the Representative makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Shares on the Closing Date on the terms and in the manner
contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(e) Officer’s Certificate and Selling Stockholder’s Certificate. The Representative
shall have received on and as of the Closing Date a certificate (1) of the chief financial
officer or chief accounting officer of the Company and one additional senior executive
officer of the Company who is satisfactory to the Representative (i) confirming that such
officers have carefully reviewed the Registration Statement, the Pricing Disclosure Package
and the Prospectus and, to the knowledge of such officers, the representations of the
Company set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming
that the other representations and warranties of the Company in this Agreement are true and
correct and that the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii)
to the effect set forth in paragraphs (a), (c) and (d) above and (2) of the Selling
Stockholder, in form and substance reasonably satisfactory to the Representative, (A)
confirming that the representations of the Selling Stockholder set forth in Sections 4(e),
4(f) and 4(g) hereof are true and correct and (B) confirming that the other representations
and warranties of the Selling Stockholder in this agreement are true and correct and that
the Selling Stockholder has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such Closing Date.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date each of
PricewaterhouseCoopers LLP and KPMG shall have furnished to the Representative, at the
request of the Company, letters, dated the respective dates of delivery thereof and
addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type customarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; provided, that the
letter delivered on the Closing Date shall use a “cut-off” date no more than three business
days prior to such Closing Date.
(g) Opinion and 10b-5 Statement of Counsel for the Company. Xxxxxx & Xxxxxxx LLP ,
counsel for the Company, Xxxxxxxxx Traurig, LLC, as Nevada counsel for the Company, and
Xxxxx X. Xxxxxx, Senior Vice President, General Counsel and Secretary of the Company, shall
have furnished to the Representative, at the request of the Company, their written opinion
and, in the case of Xxxxxx & Xxxxxxx LLP, 10b-5 statement, dated the Closing Date and ad-
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dressed to the Underwriters, in form and substance reasonably satisfactory to the
Representative, to the effect set forth in Annex X-0, X-0 or A-3 hereto, as the case may be.
(h) Opinion of Counsel for the Selling Stockholder. Wachtell, Lipton, Xxxxx & Xxxx, as
special New York counsel for the Selling Stockholder, shall have furnished to the
Representative, at the request of the Selling Stockholder, their written opinion, dated the
Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex A-4 hereto, and Xxxxxxx
Xxxxxxxxxx & Co, as British Virgin Islands counsel for the Selling Stockholder, shall have
furnished to the Representative, at the request of the Selling Stockholder, their written
opinion, dated the Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representative, to the effect set forth in Annex A-5 hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representative
shall have received on and as of the Closing Date an opinion and 10b-5 statement of Xxxxx
Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such documents
and information as they may reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Sale. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or
foreign governmental or regulatory authority that would, as of the Closing Date prevent the
sale of the Shares; and no injunction or order of any federal, state or foreign court shall
have been issued that would, as of the Closing Date prevent the sale of the Shares.
(k) Good Standing. The Representative shall have received on and as of the Closing
Date satisfactory evidence of the good standing of the Company and its significant
subsidiaries in their respective jurisdictions of organization and their good standing as
foreign entities in such other jurisdictions as the Representative may reasonably request,
in each case in writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(l) Exchange Listing. The Shares to be delivered on the Closing Date shall have been
approved for listing on the New York Stock Exchange.
(m) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of
Exhibit A hereto, between you and certain shareholders, officers and directors of the
Company, each of which is listed on Schedule 3 hereto, relating to sales and certain other
dispositions of shares of Stock or certain other securities, delivered to you on or before
the date hereof, shall be full force and effect on the Closing Date.
(n) Additional Documents. On or prior to the Closing Date the Company and the Selling
Stockholder shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
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(a) Indemnification of the Underwriters by the Company. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of 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, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing Disclosure Package that
has subsequently been amended), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in
subsection (c) below.
(b) Indemnification of the Underwriters by the Selling Stockholder. The Selling Stockholder
agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, in each case except insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Representative expressly for
use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any
Issuer Free Writing Prospectus or any Pricing Disclosure Package, it being understood and agreed
that the only such information furnished by any Underwriter consists of the information described
as such in subsection (c) below; provided, however, that (i) the Selling
Stockholder’s agreement to indemnify and hold harmless hereunder shall only apply insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to the Selling Stockholder furnished to the Company in writing by the Selling
Stockholder expressly for use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Pricing Disclosure Package
(including any Pricing Disclosure Package that has subsequently been amended) and (ii) the
aggregate amount of the Selling Stockholder’s liability pursuant to this Section 9(b) shall not
exceed the aggregate amount of gross proceeds received by the Selling Stockholder from the sale of
the Shares hereunder.
(c) Indemnification of the Company and the Selling Stockholder. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers
who signed the Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the Selling
Stockholder to the same extent as the indemnity set forth in paragraph (a) above, but only with
respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any
untrue statement or omission or alleged un-
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true statement or omission made in reliance upon and in conformity with any information
relating to such Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Pricing Disclosure Package, it being
understood and agreed upon that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each Underwriter: the
information appearing in the tenth and eleventh paragraphs under the caption “Underwriting”.
(d) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to the preceding paragraphs of this Section
9, such person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under the preceding paragraphs of this Section 9 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person otherwise than under the
preceding paragraphs of this Section 9. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the
Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who
shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person in such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interest between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such
fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of such Underwriter
shall be designated in writing by X.X. Xxxxxx Securities LLC, and any such separate firm for the
Company, its directors, its officers who signed the Registration Statement and any control persons
of the Company shall be designated in writing by the Company and any such separate firm for the
Selling Stockholder shall be designated in writing by the Attorneys-in-Fact or any one of them.
The Indemnifying Person 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 Person agrees to indemnify each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could
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have been a party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in
form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b) or (c) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder, on the one hand, and the Underwriters on the other, from the offering of the
Shares or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company and the Selling Stockholder, on the one hand, and the
Underwriters on the other, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Stockholder, on the one hand, and the
Underwriters on the other, shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Selling Stockholder from the sale of the
Shares and the total underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear
to the aggregate offering price of the Shares. The relative fault of the Company and the Selling
Stockholder, on the one hand, and the Underwriters on the other, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company and the Selling Stockholder or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) Limitation on Liability. The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Selling Stockholder or 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 paragraph (e) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (e) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 9, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter with respect to the offering of
the Shares 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 Underwriters’ obligations to contribute pursuant to this Section
9 are several in proportion to their respective purchase obligations hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
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10. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties.
11. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company and the Selling Stockholder, 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 any of the New York Stock Exchange, the American Stock
Exchange, the Nasdaq Stock Market, the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade; (ii) trading of any securities issued or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the
Closing Date on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure
Package and the Prospectus.
(a) If, on the Closing Date any Underwriter defaults on its obligation to purchase the Shares
that it has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Shares by other persons satisfactory to the Company and
the Selling Stockholder on the terms contained in this Agreement. If, within 36 hours after any
such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholder shall be entitled to a further period of
36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree to purchase the
Shares of a defaulting Underwriter, either the non-defaulting Underwriters or the Company and the
Selling Stockholder may postpone the Closing Date for up to five full business days in order to
effect any changes that in the opinion of counsel for the Company, counsel for the Selling
Stockholder or counsel for the Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Registration Statement and the Prospectus that effects any such
changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this
Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 12, purchases Shares that a defaulting Underwriter agreed but failed to
purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholder as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date does not exceed one-eleventh of the aggregate number of Shares to
be purchased on such date, then the Company and the Selling Stockholder shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares that such Underwriter
agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based on the
number of Shares that such Underwriter agreed to purchase on such date) of the Shares of such
defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholder as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date exceeds one-eleventh of the aggregate amount of Shares to be
purchased on such date, or if the Compa-
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ny and the Selling Stockholder shall not exercise the right described in paragraph (b) above,
then this Agreement shall terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this Section 12 shall be without
liability on the part of the Company and the Selling Stockholder, except that the Company will
continue to be liable for the payment of expenses as set forth in Section 13 hereof and except that
the provisions of Section 9 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Stockholder or any non-defaulting Underwriter for damages caused
by its default.
13. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing
and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s
counsel and independent accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of the Shares under
the state or foreign securities or blue sky laws of such jurisdictions as the Representative may
designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the
related fees and expenses of counsel for the Underwriters); (vi) the cost of preparing stock
certificates; (vii) the costs and charges of any transfer agent and any registrar; (viii) all
expenses and application fees incurred in connection with any filing with, and clearance of the
offering by, the Financial Industry Regulatory Authority; (ix) all expenses incurred by the Company
in connection with any “road show” presentation to potential investors; and (x) all expenses and
application fees related to the listing of the Shares on the New York Stock Exchange.
(b) If (i) this Agreement is terminated pursuant to Section 11, (ii) the Company or the
Selling Stockholder for any reason fail to tender the Shares for delivery to the Underwriters or
(iii) the Underwriters decline to purchase the Shares for any reason permitted under this
Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket costs and
expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters
in connection with this Agreement and the offering contemplated hereby.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 9 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
15. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Selling Stockholder and the Underwriters contained in
this Agreement or made by or on behalf of the Company, the Selling Stockholder or the Underwriters
pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery
of and payment for the Shares and
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shall remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company, the Selling Stockholder or the Underwriters.
16. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule
405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth
in Rule 1-02 of Regulation S-X under the Exchange Act.
17. Miscellaneous.
(a) Authority of X.X. Xxxxxx Securities LLC. Any action by the Underwriters hereunder may be
taken by X.X. Xxxxxx Securities LLC on behalf of the Underwriters, and any such action taken by
X.X. Xxxxxx Securities LLC shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative c/o X.X.
Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention: Equity Syndicate Desk. Notices to the Company shall be given to it at Xxxxxx & Xxxxxxx
LLP, 000 Xxxx Xxxxxx Xxxxx 00xx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, (fax: (000) 000-0000);
Attention: R. Xxxxx Xxxxx. Notices to the Selling Stockholder shall be given to the
Attorneys-in-Fact c/o Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, (fax: (000) 000-0000); Attention: Xxxxxx X. Xxxxxxxx.
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or
related to this Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such state.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[Signature pages follow]
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If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, XXXXXX PHARMACEUTICALS, INC. |
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By: | ||||
Name: | ||||
Title: | ||||
SELLING STOCKHOLDER |
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By: | ||||
Name: | ||||
Title: |
As Attorney-in-Fact acting on
behalf of the Selling
Stockholder.
behalf of the Selling
Stockholder.
[Signature page to the Underwriting Agreement]
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Accepted: November , 2010
X.X. XXXXXX SECURITIES LLC For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. |
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By | ||||
Authorized Signatory | ||||
[Signature page to the Underwriting Agreement]