Mobileye N.V. Ordinary Shares Form of Underwriting Agreement
Exhibit 1.1
Ordinary Shares
Form of Underwriting Agreement
_________________, 2014
Xxxxxxx, Xxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As representatives of the several Underwriters
named in Schedule I hereto,
Ladies and Gentlemen:
1. | Introductory |
(a) Company’s Offering. Mobileye N.V., a Dutch limited liability company (naamloze vennootschap) (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of [●] ordinary shares of the Company, nominal value €0.01 per share (“Ordinary Shares”), and the shareholders of the Company named in Schedule II hereto (the “Selling Shareholders”) propose, subject to the terms and conditions stated herein, to sell to the Underwriters an aggregate of [●] Ordinary Shares and, at the election of the Underwriters, up to [●] additional Ordinary Shares. The aggregate of [●] Ordinary Shares to be sold by the Company and the Selling Shareholders is herein called the “Firm Shares” and the aggregate of [●] additional Ordinary Shares to be sold by the Selling Shareholders at the election of the Underwriters is herein called the “Optional Shares”. The Firm Shares and the Optional Shares that the Underwriters elect to purchase pursuant to Section 4 hereof are herein collectively called the “Shares”.
2. | Representations and Warranties by the Company |
The Company represents and warrants to, and agrees with, each of the Underwriters that:
Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 7(a)(i) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the “Registration Statement”; the Preliminary Prospectus relating to the Shares that was included in the Registration Statement immediately prior to the Applicable Time (as defined below) is hereinafter called the “Pricing Prospectus”; the final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the “Prospectus”; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”);
(c) Absence of Material Untrue Statements in Pricing Disclosure Package, Issuer Free Writing Prospectuses or Section 5(d) Communications. For the purposes of this Agreement, the “Applicable Time” is ___:___ __m (Eastern time) on the date of this Agreement; and any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Act is hereinafter called a “Section 5(d) Communication”; and any Section 5(d) Communication that is a written communication within the meaning of Rule 405 under the Act is hereinafter called a “Section 5(d) Writing”; the Pricing Prospectus, as supplemented by the information listed on Schedule III(b) hereto, taken together (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading, in either case in the light of the circumstances under which such statements were made, or omitted; each Issuer Free Writing Prospectus listed on Schedule III(a) hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus; and each such Issuer Free Writing Prospectus and each Section 5(d) Writing listed on Schedule V hereto that has been approved by the Company, as supplemented by and taken together with the Pricing Disclosure Package, as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading, in either case in the light of the circumstances under which such statements were made or omitted, nor did any such Issuer Free Writing Prospectus or Section 5(d) Writing include any information that conflicted, or conflicts with the information then contained in the Registration Statement; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus or Section 5(d) Writing in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Xxxxxxx Xxxxx & Co. expressly for use therein or by a Selling Shareholder expressly for use therein;
(d) No Section 5(d) Communications. (i) The Company (A) has not alone engaged in any Section 5(d) Communication (other than Section 5(d) Communications with the consent of Xxxxxxx Sachs & Co.) with entities that are qualified institutional buyers within the meaning of Rule 144A under the Act or institutions that are accredited investors within the meaning of Rule 501 under the Act and (B) has not authorized anyone other than Xxxxxxx Xxxxx & Co. and Xxxxxx Xxxxxxx & Co. LLC to engage in Section 5(d) Communications; (ii) the Company reconfirms that Xxxxxxx Sachs & Co. and Xxxxxx Xxxxxxx & Co. LLC have each been authorized to act on its behalf in undertaking Section 5(d) Communications; and (iii) the Company has not distributed any written Section 5(d) Communications other than those listed on Schedule V hereto;
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(i) there are no rights of third parties to any of the Intellectual Property Rights owned by the Company or its subsidiaries, and there is no pending, or to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s or any subsidiary’s rights in or to its Intellectual Property Rights, or challenging the validity, enforceability or scope of any such Intellectual Property Rights, that would reasonably be likely to result in a material adverse effect on the current or future business, financial condition or results of operations of the Company and its subsidiaries (a “Material Adverse Effect”), and the Company is unaware of any facts which would form a reasonable basis for any such claim;
(ii) none of the Intellectual Property Rights used by the Company or its subsidiaries in their businesses has been obtained or is being used by the Company or its subsidiaries in violation of any contractual obligation or third party right that is binding on the Company or its subsidiaries, and there is no pending, or to the Company’s knowledge, threatened action, suit, proceeding or claim by any third party asserting that the Company or any subsidiary infringes, misappropriates or otherwise violates any Intellectual Property Rights or other proprietary rights of any third party that would reasonably be likely to result in a Material Adverse Effect;
(iii) the Company and its subsidiaries take reasonable measures to maintain and protect the Intellectual Property Rights necessary or material to the conduct of their businesses as now conducted by them or as proposed to be conducted in the Pricing Disclosure Package, including by requiring all
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employees, officers and consultants of and to the Company and its subsidiaries to sign agreements or otherwise agree to keep proprietary information of the Company and its subsidiaries in confidence and not to use it except on behalf of the Company, and requiring all third parties having access to material Intellectual Property Rights to sign confidentiality and non-use agreements or otherwise agree in writing to adequately maintain the confidentiality and not to use such Intellectual Property Rights; and
(iv) the Company and its subsidiaries have in all material respects complied with applicable laws pertaining to data privacy.
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consummation by the Company of the transactions contemplated by this Agreement, except for the registration under the Act of the Shares, registration of the Ordinary Shares as a class under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under U.S. state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters;
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(bb) Absence of “Investment Company” Status. The Company is not (and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof, will not be) an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended (“Investment Company Act”);
(cc) Absence of “Ineligible Issuer” Status. At the time of filing the Initial Registration Statement the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the Act;
(dd) Absence of “PFIC” Status. The Company believes that it was not a “passive foreign investment company” (“PFIC”) as defined in Section 1297 of the United States Internal Revenue Code of 1986, as amended, for its taxable year ended December 31, 2013 and, based on the Company’s current projected income, assets and activities, the Company does not expect to be classified as a PFIC for the taxable year ending December 31, 2014 or any foreseeable subsequent taxable year;
(ee) “Emerging Growth Company” Status. From the time of initial confidential submission of a registration statement relating to the Shares with the Commission (or, if earlier, the first date on which a Section 5(d) Communication was made) through the date hereof, the Company has been and is an “emerging growth company” as defined in Section 2(a)(19) of the Act (an “Emerging Growth Company”);
(ff) “Foreign Private Issuer” Status. The Company is a “foreign private issuer” within the meaning of Rule 405 under the Act;
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executive officer and principal financial officer, or under their supervision, 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; (ii) except as disclosed in the Pricing Prospectus, the Company’s internal control over financial reporting is effective and the Company is not aware of any material weaknesses in its internal control over financial reporting; (iii) since the date of the latest audited financial statements included in the Pricing Prospectus, there has been no change, significant deficiency or material weakness in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; (iv) the Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; (v) such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; (vi) disclosure controls and procedures are effective and are, or upon consummation of the offering of the Shares will be, overseen by the audit committee of the Company’s Board of Directors in accordance with applicable rules published under the Exchange Act; and (vii) upon and at all times after the initial filing of the Registration Statement with the Commission, the Company and its officers and directors, in their capacities as such, have been and will continue to be in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended;
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limitation, Cuba, Iran, North Korea, Sudan and Syria), and the Company will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or (ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions;
(qq) Listing. The Offered Securities have been approved for listing on the New York Stock Exchange (the “Exchange”), subject to notice of issuance;
(ss) Governing Law. The choice of the laws of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of The Netherlands and, subject to the provisions of EU Regulation No. 593/2008 relating to the law that is applicable to contractual obligations (“Rome I”), will be honored by courts in The Netherlands except as may be limited by general principles of equity. The Company has the power to submit, and pursuant to Section 20 of this Agreement, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York State and United States federal court sitting in The City of New York (each, a “New York Court”) and has validly and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in any such court; and the Company has the power to designate, appoint and empower, and pursuant to Section 20(c) of this Agreement, has legally, validly, effectively and irrevocably designated, appointed and empowered, an authorized agent for service of process in any action arising out of or relating to this Agreement, the Pricing Disclosure Package, the Prospectus, the Registration
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Statement, or the offering of the Shares in any New York Court and service of process effected on such authorized agent will be effective to notify the Company of any action under this Agreement;
(uu) Enforceability of Judgments. Except as otherwise disclosed in the Pricing Prospectus under the caption “Enforcement of Judgments”, any final judgment for a fixed or readily calculable sum of money rendered by a New York Court having jurisdiction under its own domestic laws in respect of any suit, action or proceeding against the Company based upon this Agreement and any instruments or agreements entered into for the consummation of the transactions contemplated herein and therein, provided that any such instruments or agreements contain a choice of New York law and venue, would be declared enforceable against the Company without re-examination or review of the merits of the cause of action in respect of which the original judgment was given or re-litigation of the matters adjudicated provided that such judgment has not been rendered in violation of elementary principles of fair trial and is not contrary to the public policy of the Netherlands. The Company is not aware of any reason why the enforcement in The Netherlands of such a New York Court judgment would be, as of the date hereof, contrary to public policy in The Netherlands;
3. | Representations and Warranties by Selling Shareholders |
Each of the Selling Shareholders severally represents and warrants to, and agrees with, each of the Underwriters and the Company as to itself that:
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authorization, order, registration or qualification of or with any court or governmental body or agency having jurisdiction over such Selling Shareholder or any of its subsidiaries or any property or assets of such Selling Shareholder is required for the performance by such Selling Shareholder of its obligations under this Agreement and, as applicable, the Power of Attorney and the Custody Agreement and the consummation by such Selling Shareholder of the transactions contemplated by this Agreement and, as applicable, the Power of Attorney and the Custody Agreement in connection with the Shares to be sold by such Selling Shareholder hereunder, except the registration under the Act of the Shares, registration of the Ordinary Shares under the Exchange Act, the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under U.S. state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, as to which such Selling Shareholder makes no representation;
(d) Lock-Up Agreement. On or prior to the date of the Pricing Prospectus, such Selling Shareholder has executed and delivered to the Underwriters an agreement substantially in the form of Annex IV hereto;
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Agreement”). Pursuant to the Custody Agreement (i) the Attorneys-in-Fact have deposited with the Custodian a non-notarial deed of transfer (the “Firm Shares Deed of Transfer”) among the Company, the Selling Shareholders and the Underwriters pursuant to which the Selling Shareholders transfer to the Underwriters those Firm Shares required to be sold by such Selling Shareholders to the Underwriters hereunder (requesting the Company to register such Firm Shares in the name of Cede & Co. as record owner upon such transfer), duly executed by the Company and one of the Attorneys-in-Fact on behalf of the Selling Shareholders and (ii) the Attorneys-in-Fact have deposited with the Custodian a stock power signed by one of the Attorneys-in-Fact on behalf of such Selling Shareholders (the “Firm Shares Stock Power”) (with Medallion Guarantee of such Attorney-in-Fact’s signature) relating to the transfer by such Selling Shareholders to the Underwriters of the Firm Shares required to be sold by such Selling Shareholders hereunder.
One of the Attorneys-in-Fact on behalf of such Selling Shareholder and ESOP Management and Trust Services Ltd., as paying agent (the “Paying Agent”), have each duly executed and delivered a Paying Agent Agreement in the form heretofore furnished to you (the “Paying Agent Agreement”). Pursuant to the Paying Agent Agreement, the Attorneys-in-Fact have appointed the Paying Agent to receive the proceeds from the sale of the Shares pursuant to the Underwriting Agreement and the Custody Agreement and to authorize and direct the Paying Agent to, among other things, (i) deposit such payment into the Account (as defined in the Paying Agent Agreement) of the Paying Agent, (ii) withhold and remit to the Company out of such proceeds the principal amount of the loan granted by the Company to such Selling Shareholder (together with any accrued and unpaid interest thereon) in connection with the exercise of options under any Company equity benefit plan and the issue thereupon of any Offered Shares, and (iii) following receipt of instructions from the Attorneys-in-Fact, or any of them acting alone, withhold and remit to the Israel Tax Authority any amounts as may be determined pursuant to the Paying Agent Agreement;
(k) Selling Shareholder Information. Any written information furnished to the Company by such Selling Shareholder expressly for use in the Registration Statement, Pricing Disclosure Package, Know Your Customer documents provided to the Underwriters or Prospectus is accurate and complete in all material respects.
4. | Sale and Purchase of Shares; Option |
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each of the Selling Shareholders, at a purchase price per share of $[●], the number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of the Selling Shareholders as set forth opposite their respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from the Company and all of the Selling Shareholders hereunder; and (ii) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, the Selling Shareholders, as and to the extent indicated in Schedule II hereto agree, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from each of the Selling Shareholders, at the purchase price per share set forth in clause (i) of this Section 4(a), that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction, the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder.
(b) Option. The Selling Shareholders, as and to the extent indicated in Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters the right to purchase at their election up to [●] Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm Shares, provided that the purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the Optional Shares. Any such election to purchase Optional Shares shall be made in proportion to the maximum number of Optional Shares to be sold by all Selling Shareholders as set forth in Schedule II hereto (with such adjustment to eliminate fractional shares as shall be determined by you). Any such election to purchase Optional Shares may be exercised only by written notice from you to the Company and the Attorneys-in-Fact, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery or, unless you and the Company and the Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
5. | Offering by Underwriters |
Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus.
6. | Delivery of Shares |
(a) The Shares to be purchased by each Underwriter hereunder shall be delivered by or on behalf of the Company and the Selling Shareholders to the Underwriters, and paid for by the Underwriters, in the manner hereinafter set forth, with any transfer taxes or otherwise similar taxes and duties payable in connection with the transfer of the Shares to the Underwriters to be duly paid by the Company or the Selling Shareholders, as applicable. The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time, on [●], 2014 or such other time and date as Xxxxxxx Xxxxx & Co., the Company and the Attorneys-in-Fact may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by Xxxxxxx, Sachs & Co. in each written notice given by Xxxxxxx, Xxxxx & Co. of the Underwriters’ election to purchase such Optional Shares, or such other time and date as Xxxxxxx, Sachs & Co., the Company and the Attorneys-in-Fact may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the “First Time of Delivery”, each such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the “Second Time of Delivery”, and each such time and date for delivery is herein called a “Time of Delivery”. At the First Time of Delivery (A) the Custodian will, against payment to the Custodian by or on behalf of the Underwriters of the purchase price payable by the Underwriters to the Selling Shareholders and the Company for the Firm Shares sold by the Selling Shareholders hereunder, by wire transfer of Federal (same day) funds to the account of the Custodian specified in the Custody Agreement (the “Custody Account”), and receipt of such payment by the Custodian in the Custody Account, (i) deliver the Firm Shares Deed of Transfer to the Underwriters and (ii) deliver the Firm Shares Stock Power to AST in its capacity of transfer agent of the Company’s Ordinary Shares (the “Transfer Agent”); (B) the Company will,
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against payment to the Company by or on behalf of the Underwriters of the purchase price payable by the Underwriters to the Company for the Firm Shares sold by the Company hereunder, by wire transfer of Federal (same day) funds to a United States bank account of the Company’s designated to you in writing prior to the First Time of Delivery, and receipt of such payment by the Company in such account, deliver to the Underwriters a non-notarial deed of issuance between the Underwriters and the Company pursuant to which the Company will issue to the Underwriters the Firm Shares required to be issued to the Underwriters hereunder (requesting the Company to register such Firm Shares in the name of Cede & Co. in the shareholders register of the Company); and (C) the Transfer Agent shall (i) register the Firm Shares in the name of Cede & Co. as record owner in the shareholders register of the Company and (ii) deliver the appropriate number of Firm Shares to each of the Underwriters through the facilities of the Depository Trust Company (“DTC”), for the account of such Underwriter.
(b) If the Underwriters exercise the option set forth in Section 4(b) hereof, the Attorneys-in-Fact will, not later than the second business day following the date of notice of exercise of such option, deposit with the Custodian under the Custody Agreement (a) a non-notarial deed of transfer (an “Optional Shares Deed of Transfer”) among the Company, the Selling Shareholders and the Underwriters pursuant to which the Selling Shareholders transfer to the Underwriters the Optional Shares then required to be transferred by each of them to the Underwriters hereunder (requesting the Company to register such Optional Shares in the name of Cede & Co. as record owner upon such transfer), duly executed by the Company and one of the Attorneys-in-Fact on behalf of the Selling Shareholders and (ii) a stock power signed by one of the Attorneys-in-Fact on behalf of the Selling Shareholders (an “Optional Shares Stock Power”) (with Medallion Guarantee of such Attorney-in-Fact’s signature) relating to the transfer by the Selling Shareholders to the Underwriters of the Optional Shares then required to be sold by the Selling Shareholders hereunder. At such Second Time of Delivery (A) the Custodian will, against payment to the Custodian by or on behalf of the Underwriters into the Custody Account of the purchase price payable by the Underwriters to the Selling Shareholders for the Optional Shares then being purchased by the Underwriters hereunder, by wire transfer of Federal (same day) funds, and receipt of such payment by the Custodian in the Custody Account, (i) deliver the relevant Optional Shares Deed of Transfer to the Underwriters and (ii) deliver the relevant Optional Shares Stock Power to the Transfer Agent; and (B) the Transfer Agent shall (i) register the Optional Shares then being purchased hereunder in the name of Cede & Co. as record owner in the shareholders register of the Company and (ii) deliver the appropriate number of Optional Shares to each of the Underwriters through the facilities of DTC, for the account of such Underwriter.
(c) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 10 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 10(s) hereof will be delivered at the offices of Underwriters’ counsel: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New York, New York 10036 (the “Closing Location”), and the Shares will be delivered at the office of DTC, all at each Time of Delivery. A meeting will be held at the Closing Location at 4:00 p.m., New York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto.
7. | Certain Agreements with the Company and the Selling Shareholders |
(a) The Company agrees with each of the Underwriters:
(i) Filing of Prospectus; Notifying Underwriters of Various Events. (i) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; (ii) to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; (iii) to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; (iv) to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by
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the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and (v) in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order;
(ii) Blue Sky Qualifications. Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such U.S. jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(iii) Furnishing the Prospectus; Amending or Supplementing the Prospectus. (i) Promptly on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and (ii) if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading, in either case in the light of the circumstances under which such statements were made or omitted when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus that will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(iv) Rule 158. To make generally available to its securityholders as soon as practicable, but in any event not later than twenty months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the Rules and Regulations (including, at the option of the Company, Rule 158);
(v) Restriction on Sale of Securities
(1) Lock-Up. During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus (the “Company Lock-Up Period”), not to (A) offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any securities of the Company that are substantially similar to the Shares, including but not limited to any options or warrants to purchase Shares or any securities that are convertible into or exchangeable for, or that represent the right to receive, Shares or any such substantially similar securities, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing or (B) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Shares or any such other securities, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Shares or such other securities, in cash or otherwise (other than the Shares to be sold hereunder or pursuant to employee equity option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of Xxxxxxx, Xxxxx & Co.;
(2) Announcement of Lock-Up Waiver. If Xxxxxxx, Sachs & Co., in its sole discretion, agrees to release or waive the restrictions in lock-up letters pursuant to Section 10(n)
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hereof for an officer or director of the Company, and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Annex III hereto through a major news service at least two business days before the effective date of the release or waiver;
(vi) Loss of Emerging Growth Company Status. To promptly notify you if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Shares within the meaning of the Act and (ii) completion of the Company Lock-Up Period;
(vii) Furnishing Other Reports and Communications. During a period of five years from the effective date of the Registration Statement, unless such information is publicly filed with the Commission and available on Xxxxx or available on the Company’s website, to furnish to you copies of all reports or other communications (financial or other) furnished to shareholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission);
(viii) Use of Proceeds. To use the net proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(ix) Listing of Shares for Trade. To use its best efforts to list for trading, subject to official notice of issuance, the Shares on the Exchange;
(x) Filing Periodic Reports. To file with the Commission such information on Form 20-F and Form 6-K as may be required under the Exchange Act for so long as any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares;
(xi) Additional Filings. If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 3a(c) of the Commission’s Informal and Other Procedures (16 CFR 202.3a); and
(xii) Trademarks and Logo. Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, service marks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares (the “Logo License”); provided, however, that the Logo License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred;
(b) Each of the Selling Shareholders severally agrees with each of the Underwriters:
(i) Withholding. The Underwriters shall be entitled to deduct and withhold from any portion of the proceeds payable to any Selling Shareholder such amounts that the Underwriters determine at their sole discretion are required to be deducted or withheld therefrom under any provision of any applicable law; provided, however, that for Israeli tax purposes, if any Selling Shareholder provides the Underwriters, in advance, with a Valid Certificate, the Underwriters shall not make any Israeli deductions or withholdings, or shall make such deduction or withholding at a reduced rate, as the case may be, in accordance with the provisions of such Valid Certificate. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes as having been paid to the Selling Shareholder.
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If the Underwriters do deduct or withhold any such amounts, they shall provide documentary confirmation thereof to the Selling Shareholder. For the purposes of this Section, a “Valid Certificate” means a certificate or a ruling issued by the Israeli Tax Authority which is sufficient to enable the Underwriters to conclude in their sole discretion that no withholding (or reduced withholding) of Israeli tax is required with respect to such Selling Shareholder.
Notwithstanding anything in this agreement to the contrary, any payment that might be subject to Israeli tax withholding will be transferred to the recipient through the Paying Agent, as defined in the Custody Agreement, and the tax withholding mechanism (or exemption from such withholding duty) shall be in the manner specified in the Custody Agreement.
8. | Free Writing Prospectus. |
(b) No Company’s Section 5(d) Communications Without Prior Consent. The Company represents and agrees that (i) it has not engaged in, or authorized any other person to engage in, any Section 5(d) Communications, other than Section 5(d) Communications with the prior consent of Xxxxxxx, Sachs & Co. with entities that are qualified institutional buyers as defined in Rule 144A under the Act or institutions that are accredited investors as defined in Rule 501(a) under the Act; and (ii) it has not distributed, or authorized any other person to distribute, any Section 5(d) Writings, other than those distributed with the prior consent of Xxxxxxx, Xxxxx & Co. that are listed on Schedule V hereto; and the Company reconfirms that the Underwriters have been authorized to act on its behalf in engaging in Section 5(d) Communications;
(c) No Underwriters’ Section 5(d) Communications Other than to Qualified Institutional Buyers. Each Underwriter represents and agrees that any Section 5(d) Communications undertaken by it were with entities that are qualified institutional buyers as defined in Rule 144A under the Act or institutions that are accredited investors as defined in Rule 501(a) under the Act;
17 |
9. | Costs and Expenses |
The Company and each of the Selling Shareholders covenant and agree with one another and with the several Underwriters that:
(a) Costs and Expenses Borne by Company and Selling Shareholders. The Company and such Selling Shareholders, jointly and severally (as allocated amongst themselves pursuant to the Custody Agreement), will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Shares under the Act and all other expenses in connection with the preparation, printing, reproduction and filing of the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under U.S. state securities laws as provided in Section 7(a)(ii) hereof; (iii) all fees and expenses in connection with listing the Shares on the Exchange; (iv) the filing fees incident to, and the fees and disbursements of counsel for the Underwriters up to a maximum amount not to exceed $50,000 in connection with, any required review by FINRA of the terms of the sale of the Shares; (v) the cost and expenses of the Company and the Selling Shareholders relating to investor presentations or any “road show” undertaken in connection with marketing of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics; (vi) the fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and Xxxxxx Xxxxxxx & Co. LLC. in its capacity as the QIU; and (vii) except as provided by Section 9(d), all taxes or duties arising on the issue of any Shares by the Company. The cost of any aircraft chartered in connection with the road show shall be borne one-half by the Company and the Selling Shareholders (as allocated amongst themselves pursuant to the Custody Agreement) and one-half by the Underwriters.
(d) Reimbursement of Share Transfer Tax. In connection with clause (c)(iii) above, Xxxxxxx, Sachs & Co. agrees to pay New York State share transfer tax, and the Selling Shareholders, jointly and severally, agree to reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs if such tax payment is not rebated on the day of payment and for any portion of such tax payment not rebated; provided, however, that Xxxxxxx, Sachs & Co. shall exercise reasonable efforts to seek a rebate of the New York State share transfer tax. It is understood, however, that, except as otherwise provided in the Custody Agreement, the Company shall bear, and the Selling Shareholders shall not be required to pay or to reimburse the Company for, the cost of any other matters not directly relating to the sale and purchase of the Shares pursuant to this Agreement, and that, except as provided in this Section 9, and Section 11 and 14 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, share transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make.
10. | Conditions to Underwriters’ Obligations |
The obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Selling Shareholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Shareholders shall have performed all of its and their obligations hereunder theretofore to be performed, and the following additional conditions:
18 |
(h) Opinions of Counsel for the Selling Shareholders. Xxxxxxxx & Xxxxxxxx LLP, counsel for the Selling Shareholders, shall have furnished to you their written opinion (a form of each such opinion is attached as Annex II(e) hereto), dated such Time of Delivery;
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otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the share capital or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ equity, results of operations or intellectual property of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus;
(r) No Objection by FINRA. FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares;
(s) Other Documentation. The Company shall have furnished to you such other opinions, certificates, letters and documents that you shall have reasonably requested; and
(t) Know Your Customer Documents. The Selling Shareholders shall have furnished or caused to be furnished to you at such Time of Delivery the “Know Your Customer” information contained in Exhibit A to the Power of Attorney.
20 |
11. | Indemnification |
21 |
Free Writing Prospectus or Section 5(d) Writing, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein; and will reimburse the Company and each Selling Shareholder for any legal or other expenses reasonably incurred by the Company or such Selling Shareholder in connection with investigating or defending any such action or claim as such expenses are incurred.
(i) Each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Shareholders on the one hand and the Underwriters on the other from the offering of the Shares.
(ii) If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Shareholders on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations.
(iii) The relative benefits received by the Company and the Selling Shareholders, on the one hand, and the Underwriters, on the other, shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the Selling Shareholders bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The Company and the Selling
22 |
Shareholders and the Underwriters agree that Xxxxxx Xxxxxxx & Co. LLC will not receive any additional benefits hereunder for serving as the QIU in connection with the offering and sale of the Securities.
(iv) The relative fault 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 or the Selling Shareholders, on the one hand, or the Underwriters, on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(v) The Company, each of the Selling Shareholders and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e).
(vi) The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which 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 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint.
12. | Default of Underwriters |
23 |
above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company and the Selling Shareholders shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
13. | Survival of Certain Representations and Obligations |
The respective indemnities, agreements, representations, warranties and other statements of the Company, the Selling Shareholders and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any of the Selling Shareholders, or any officer or director or controlling person of the Company, or any controlling person of any Selling Shareholder, and shall survive delivery of and payment for the Shares.
14. | Consequences of Termination |
If this Agreement shall be terminated pursuant to Section 12 hereof, neither the Company nor the Selling Shareholders shall then be under any liability to any Underwriter except as provided in Sections 9 and 11 hereof; but, if for any other reason any Shares are not delivered by or on behalf of the Company and the Selling Shareholders as provided herein, the Company and each of the Selling Shareholders pro rata (based on the number of Shares to be sold by the Company and such Selling Shareholder hereunder) will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling Shareholders shall then be under no further liability to any Underwriter except as provided in Sections 9 and 11 hereof.
15. | Representatives; Certain Information; Notices |
24 |
16. | No Third Party Rights |
This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Selling Shareholders and, to the extent provided in Sections 11 and 13 hereof, the officers and directors of the Company and each person who controls the Company, any Selling Shareholder or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
17. | Time of the Essence |
Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
18. | Absence of Fiduciary Relationship |
The Company and the Selling Shareholders acknowledge and agree that (i) the purchase and sale of the Shares pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Selling Shareholders, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or any Selling shareholder, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company or any Selling Shareholder with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any Selling Shareholder on other matters) or any other obligation to the Company or any Selling Shareholder except the obligations expressly set forth in this Agreement and (iv) the Company and each Selling Shareholder has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company and each Selling Shareholder agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or any Selling Shareholder, in connection with such transaction or the process leading thereto.
19. | Entire Agreement |
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Selling Shareholders and the Underwriters, or any of them, with respect to the subject matter hereof.
20. | Governing Law; Jurisdiction; Company’s Agent for Service of Process |
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21. | Waiver of Jury Trial |
The Company, each Selling Shareholder and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
22. | Execution in Counterparts |
This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
26 |
23. | Mandatory Disclosure of Information |
Notwithstanding anything herein to the contrary, the Company and the Selling Shareholders are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company and the Selling Shareholders relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
[Signature Page Follows]
* * *
27 |
If the foregoing is in accordance with your understanding, please sign and return to us one for the Company and each of you plus one for each counsel and the Custodian counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Company and each of the Selling Shareholders. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company and the Selling Shareholders for examination, upon request, but without warranty on your part as to the authority of the signers thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling Shareholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and binding Power of Attorney that authorizes such Attorney-in-Fact to take such action.
Very truly yours, | ||
Mobileye N.V. | ||
By: | ||
Name: | ||
Title: | ||
Selling Shareholders identified in Schedule II | ||
By: | ||
As Attorney-in-Fact acting on behalf of each of the Selling Shareholders named in Schedule II to this Agreement |
28 |
Accepted as of the date hereof
Xxxxxxx, Xxxxx & Co. | ||
By: | ||
Name: | ||
Title: | ||
Xxxxxx Xxxxxxx & Co. LLC | ||
By: | ||
Name: | ||
Title: | ||
On behalf of each of the Underwriters
29 |
SCHEDULE I | |||||
Number
of Optional |
|||||
Shares to be | |||||
Total Number of | Purchased if | ||||
Firm Shares | Maximum Option | ||||
Underwriter | to be Purchased | Exercised |
|||
Xxxxxxx, Sachs & Co. | |||||
Xxxxxx Xxxxxxx & Co. LLC. | |||||
Deutsche Bank Securities Inc. | |||||
Barclays Capital Inc. | |||||
Citigroup Global Capital Markets Inc. | |||||
Xxxxx Fargo Securities, LLC | |||||
Xxxxxx X. Xxxxx & Co. Incorporated | |||||
Xxxxxxx Xxxxx & Company, L.L.C. | |||||
Xxxxxxx Xxxxx & Associates, Inc. | |||||
Total |
SCHEDULE II | ||||
Number
of Optional | ||||
Shares to be | ||||
Total Number of | Sold if | |||
Firm Shares | Maximum Option | |||
to be Sold |
Exercised | |||
The Company. | ||||
The Selling Shareholder(s): | ||||
[Name and Address of Selling Shareholder] | ||||
[Name and Address of Selling Shareholder] | ||||
Total |
ATTORNEYS-IN-FACT FOR SELLING SHAREHOLDERS
Xxx Xxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxxxx
(each acting individually)
SCHEDULE III
(a) | Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package |
[None]
(b) | Information other than the Pricing Prospectus that comprise the Pricing Disclosure Package |
The initial public offering price per share for the Shares is $[●].
The number of Shares purchased by the Underwriters is [●].
SCHEDULE IV
List of Directors, Director Nominees and Executive Officers Subject to Lock-Up:
Name of Individual or Entity | Address | |
Xxxxx Xxxxxxx | ||
Xxx Xxxxxx | ||
Xxxx Xxxxxxxxx | ||
Xxxx Xxxxx | ||
Xxxxxxxx Xxxxxxxx | ||
Xxxxx Xxxxx | ||
Itay Gat | ||
Xxx Xxxxxx | ||
Xxxx Xxxxxx | ||
Xxxxx Xxxx Xxxxxxxxxx | ||
Tomaso X. Xxxxxx | ||
Xxxxxx Xxxxxxx |
SCHEDULE V
Testing-The-Waters Communications distributed by the Company:
Testing-The-Waters Presentation, dated June 9, 2014
Testing-The-Waters Presentation, dated July 10, 2014
ANNEX I
FORM OF COMFORT LETTER
ANNEX I(a)
FORM OF COMFORT LETTER TO BE DELIVERED
SIMULTANEOUS WITH EXECUTION OF THIS AGREEMENT
ANNEX I(b)
FORM OF COMFORT LETTER TO BE DELIVERED
AT EACH TIME OF DELIVERY
ANNEX I(c)
FORM OF CFO CERTIFICATE
ANNEX II(a)
FORM OF OPINION OF
ISRAELI COUNSEL FOR THE COMPANY
ANNEX II(b)
FORM OF OPINION OF
U.S. COUNSEL FOR THE COMPANY
ANNEX II(c)
FORM OF OPINION OF
DUTCH COUNSEL FOR THE COMPANY
ANNEX II(d)
FORM OF OPINION OF
IP COUNSEL FOR THE COMPANY
ANNEX II(e)
FORM OF OPINION OF
COUNSEL FOR THE SELLING SHAREHOLDERS
ANNEX III
FORM OF PRESS RELEASE
[Date]
Mobileye N.V. announced today that Xxxxxxx, Xxxxx & Co., the lead book-running manager in the recent public sale of ordinary shares in the Company, is [waiving] [releasing] a lock-up restriction with respect to ordinary shares of the Company held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on , 20 , and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
ANNEX IV
FORM OF LOCK-UP AGREEMENT FOR
DIRECTORS, EXECUTIVE OFFICERS AND SHAREHOLDERS
__________________, 2014
Xxxxxxx, Sachs & Co.
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: | Mobileye N.V. - Lock-Up Agreement |
Ladies and Gentlemen:
The Undersigned understands that you, as representatives (the “Representatives”), propose to enter into an underwriting agreement (the “Underwriting Agreement”) on behalf of the several underwriters named in Schedule I to such agreement (collectively, the “Underwriters”) with Mobileye N.V., a Dutch public company with limited liability (naamloze vennootschap) (the “Company”), and the selling shareholders named in Schedule II to the such agreement, providing for a public offering (the “Offering”) of ordinary shares of the Company (the “Shares”) pursuant to a Registration Statement on Form F-1 to be filed with the Securities and Exchange Commission (the “SEC”).
In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Undersigned agrees that, during the period specified in the following paragraph (the “Lock-Up Period”), the Undersigned will not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any ordinary shares of the Company, or any options or warrants to purchase any ordinary shares of the Company, or any securities convertible into, exchangeable for or that represent the right to receive ordinary shares of the Company, whether now owned or hereinafter acquired, owned directly by the Undersigned (including holding as a custodian) or with respect to which the Undersigned has beneficial ownership within the rules and regulations of the SEC (collectively the “Undersigned’s Shares”). The foregoing restriction is expressly agreed to preclude the Undersigned from (1) engaging in any hedging or other transaction that is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned’s Shares even if such Undersigned’s Shares would be disposed of by someone other than the Undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option, swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership) with respect to any of the Undersigned’s Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Undersigned’s Shares, whether any such transaction is to be settled by delivery of the Undersigned’s Shares or other securities, in cash or otherwise; (2) making any demand for or exercising any right or causing to be filed a registration statement, including any amendments thereto, with respect to the registration of any of the Undersigned’s Shares, and (3) except as otherwise set forth herein, publicly disclosing the intention to do any of the foregoing at any time during the Lock-Up Period .
The Shareholder Lock-Up Period will commence on the date of this Lock-Up Agreement and continue for 180 days after the date set forth on the final prospectus used to sell the Shares (the “Public Offering Date”) in the Offering.
IV-1 |
If the Undersigned is an officer or director of the Company, (i) Xxxxxxx, Xxxxx & Co. agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of the Undersigned’s Shares, Xxxxxxx, Sachs & Co. will notify the Company of the impending release or waiver, and (ii) the Company agrees to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by Xxxxxxx, Xxxxx & Co. hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.
Notwithstanding the foregoing, the Undersigned may transfer the Undersigned’s Shares (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the Undersigned or the immediate family of the Undersigned, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) with the prior written consent of Xxxxxxx, Sachs & Co. on behalf of the Underwriters, (iv) pursuant to the Underwriting Agreement, (v) acquired in the Offering or in open market transactions on or after the Public Offering Date or (vi) pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Shares involving a change of control of the Company, provided in the case of this clause (vi) that in the event the tender offer, merger, consolidation or other similar transaction is not completed, the Undersigned’s Shares shall remain subject to the restrictions contained in this Lock-Up Agreement. For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. In addition, notwithstanding the foregoing, if the Undersigned is a corporation, partnership, limited liability company, trust or other business entity, the Undersigned may transfer the Undersigned’s Shares (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the Undersigned, or to any investment fund or other entity controlled or managed by the Undersigned or affiliates of the Undersigned, or (B) as part of a distribution, transfer or disposition without consideration by the Undersigned to its stockholders, partners, members, beneficiaries or other equity holders [(including, for the avoidance of doubt, by any entity controlled by the Undersigned to its affiliate Xxxxxxx Xxxxx International, provided that Xxxxxxx Sachs International shall be bound by the terms of this Lock-Up Agreement upon such transfer)]; provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such of the Undersigned’s Shares subject to the provisions of this Agreement and there shall be no further transfer of such Undersigned’s Shares except in accordance with this Lock-Up Agreement, and provided further that any such transfer shall not involve a disposition for value. The Undersigned now has, and, except as contemplated by clauses (i) through (vi) above, for the duration of this Lock-Up Agreement will have, good and marketable title to the Undersigned’s Shares, free and clear of all liens, encumbrances, and claims whatsoever. The Undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Undersigned’s Shares except in compliance with the foregoing restrictions.
In the event that, during the Lock-Up Period, the Representatives waive any prohibition set forth in this Lock-Up Agreement or any similar agreement on the transfer of Shares, or any securities convertible into or exercisable for Shares, held by (a) any person or entity that beneficially owns 1% or more of the outstanding Shares or (b) any director or officer of the Company, the Representatives shall be deemed to have also waived the prohibitions set forth in this Lock-Up Agreement that would otherwise have applied to the Undersigned with respect to the same percentage of the Undersigned’s Shares as the relative percentage of aggregate shares held by such party receiving the waiver that are subject to such waiver. The provisions of this paragraph will not apply: (1) unless and until each of the Representatives have waived such prohibitions with respect to more than 1%, in the aggregate, of outstanding Shares, or (2) to a transfer made pursuant to the first sentence (other than clause (iii) thereof) or the third sentence of the preceding paragraph; provided, that the Undersigned shall only be released to the extent and in the same manner that the party receiving such waiver is released (for the
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avoidance of doubt and by way of example, if the waiver or release is granted to effect a secondary offering of Shares, the Undersigned shall only be permitted to register, offer or sell its Shares in a secondary offering). In the event that, as a result of this paragraph, any of the Undersigned’s Shares are released from the restrictions imposed by this Lock-Up Agreement, the Company shall use its commercially reasonable efforts to notify the Undersigned within three business days after the Company has been advised by the Representatives of such release that the same percentage of Shares held by the Undersigned has been released; provided, that the failure to give such notice shall not give rise to any claim or liability against the Company, the Representatives or the Underwriters.
Notwithstanding anything herein to the contrary, the Representatives and their affiliates (other than the Undersigned, if applicable) may engage in brokerage, investment advisory, financial advisory, anti-raid advisory, merger advisory, financing, asset management, trading, market making, arbitrage, principal investing and other similar activities conducted in the ordinary course of their affiliates’ business.
Notwithstanding anything herein to the contrary, nothing shall preclude the Undersigned from (i) making any reports or posting the holdings of the undersigned’s portfolio companies on the undersigned’s website consistent with its past practices, (ii) making a Schedule 13G filing or (iii) making a filing on a Form 5 made after the expiration of the Lock-Up Period referred to above.
The Undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Offering. The Undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the Undersigned’s heirs, legal representatives, successors, and assigns.
This Lock-Up agreement shall cease to be applicable, and shall be of no further force or effect, (i) if the Underwriting Agreement is not signed on or prior to December 31, 2014, (ii) if the Underwriting Agreement after execution thereof is terminated in accordance with its terms, (iii) if the First Time of Delivery (as such term is defined in the Underwriting Agreement) does not occur within ten business days after the execution of the Underwriting Agreement or (iv) if the Company after the date hereof but prior to the execution of the Underwriting Agreement abandons the Offer or withdraws the Registration Statement, and in either case notifies the Representatives of the same in writing.
Very truly yours, | |
Exact Name | |
Signature | |
Title (if shareholder is other than a natural person) |
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