Exhibit 1.1
EXECUTION COPY
3,609,000 Shares
Color Kinetics Incorporated
Common Stock
($0.001 Par Value)
EQUITY UNDERWRITING AGREEMENT
November 9, 2006
Deutsche Bank Securities Inc.
CIBC World Markets Corp.
ThinkEquity Partners LLC
Canaccord Xxxxx Inc.
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Color Kinetics Incorporated, a Delaware corporation (the "Company"), and
certain stockholders of the Company (collectively the "Selling Stockholders" and
when referenced without Cree, Inc., the "Affiliated Selling Stockholders")
propose to sell to the several underwriters (the "Underwriters") named in
Schedule I hereto for whom you are acting as representatives (the
"Representatives") an aggregate of 3,609,000 shares (the "Firm Shares") of the
Company's common stock, $0.001 par value (the "Common Stock"), of which
2,000,000 shares will be sold by the Company and 1,609,000 shares will be sold
by the Selling Stockholders. The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their names in
Schedule I hereto, and the respective amounts to be sold by the Selling
Stockholders are set forth opposite their names in Schedule II hereto. The
Company and the Selling Stockholders are sometimes referred to herein
collectively as the "Sellers." Certain of the Selling Stockholders also propose
to sell at the Underwriters' option an aggregate of up to 541,350 additional
shares of the Company's Common Stock (the "Option Shares") as set forth below.
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As the Representatives, you have advised the Company and the Selling
Stockholders (a) that you are authorized to enter into this Agreement on behalf
of the several Underwriters, and (b) that the several Underwriters are willing,
acting severally and not jointly, to purchase the numbers of Firm Shares set
forth opposite their respective names in Schedule I, plus their pro rata portion
of the Option Shares if you elect to exercise the over-allotment option in whole
or in part for the accounts of the several Underwriters. The Firm Shares and the
Option Shares (to the extent the aforementioned option is exercised) are herein
collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS.
(a) The Company represents and warrants to each of the Underwriters as
follows:
(i) A registration statement on Form S-3 (File No. 333-138002)
with respect to the Shares has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission. The Company and the transactions contemplated by this Agreement meet
the requirements and comply with the conditions for the use of Form S-3. Copies
of such registration statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the Rules and Regulations)
contained therein and the exhibits, financial statements and schedules, as
finally amended and revised, have heretofore been delivered by the Company to
you. Such registration statement, together with any registration statement filed
by the Company pursuant to Rule 462(b) under the Act, is herein referred to as
the "Registration Statement," which shall be deemed to include all information
omitted therefrom in reliance upon Rules 430A, 430B or 430C under the Act and
contained in the Prospectus referred to below, has become effective under the
Act and no post-effective amendment to the Registration Statement has been filed
as of the date of this Agreement. "Prospectus" means the final form of
prospectus filed with the Commission after the date hereof pursuant to and
within the time limits described in Rule 424(b) under the Act. Each preliminary
prospectus included in the Registration Statement prior to the time it becomes
effective and each form of prospectus that is not the Prospectus and that is
filed with the Commission pursuant to and within the time limits described in
Rule 424(b) under the Act is herein referred to as a "Preliminary Prospectus."
Any reference herein to the Registration Statement, any Preliminary Prospectus
or to the Prospectus or to any amendment or supplement to any of the foregoing
documents shall be deemed to refer to and include any documents incorporated by
reference therein, and, in the case of any reference herein to any Preliminary
Prospectus or to the Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments thereto,
filed by the Company with the Commission after the date of filing of the
Prospectus under Rule 424(b) under the Act, and prior to the termination of the
offering of the Shares by the Underwriters.
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(ii) As of the Applicable Time (as defined below) and as of the
Closing Date or the Option Closing Date, as the case may be, neither (i) the
General Use Free Writing Prospectus(es) (as defined below) issued at or prior to
the Applicable Time and the Statutory Prospectus (as defined below) and the
information included on Schedule IV, all considered together (collectively, the
"General Disclosure Package"), nor (ii) any individual Limited Use Free Writing
Prospectus (as defined below), when considered together with the General
Disclosure Package, included or will include any untrue statement of a material
fact or omitted or will 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 Company makes no
representations or warranties as to information contained in or omitted from any
Preliminary Prospectus, the Statutory Prospectus or any Issuer Free Writing
Prospectus, in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives, specifically for use therein, it being understood and agreed
that the only such information is that described in Section 13 herein. As used
in this subsection and elsewhere in this Agreement:
"Applicable Time" means 8 a.m. (New York time) on November 10, 2006 or such
other time as agreed to by the Company and the Representatives.
"Statutory Prospectus" as of any time means the Preliminary Prospectus
relating to the Shares that is included in the Registration Statement or filed
with the Commission pursuant to Rule 424(b) immediately prior to that time,
including any document incorporated by reference therein.
"Issuer Free Writing Prospectus" means any "issuer free writing
prospectus," as defined in Rule 433 under the Act, relating to the Shares in the
form filed or required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company's records pursuant to Rule 433(g)
under the Act.
"General Use Free Writing Prospectus" means any Issuer Free Writing
Prospectus that is identified on Schedule V to this Agreement.
"Limited Use Free Writing Prospectus" means any Issuer Free Writing
Prospectus that is not a General Use Free Writing Prospectus.
(iii) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement, the General Disclosure
Package and the Prospectus. Each of the subsidiaries of the Company as listed in
Exhibit 21.1 to the Company's Annual Report on Form 10-K for the year ended
December 31, 2005 (collectively, the "Subsidiaries") has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to own or
lease its properties and conduct its business as described in
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the Registration Statement, the General Disclosure Package and the Prospectus.
The Subsidiaries are the only subsidiaries, direct or indirect, of the Company.
The Company and each of the Subsidiaries are duly qualified to transact business
in all jurisdictions in which the conduct of their business requires such
qualification, except for such failures to be so qualified as could not
reasonably be expected to have a Material Adverse Effect. The outstanding shares
of capital stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the Company
or another Subsidiary free and clear of all liens, encumbrances and equities and
claims; and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in the Subsidiaries are
outstanding.
(iv) The outstanding shares of Common Stock of the Company,
including all shares to be sold by the Selling Stockholders, have been duly
authorized and are, or, in the case of any such shares to be issued to any such
Selling Stockholder upon the exercise of any warrant or stock option, at the
time of such sale by the Selling Stockholder will be, validly issued and are
fully paid and non-assessable; the Shares to be issued and sold by the Company
have been duly authorized and when issued and paid for as contemplated herein
will be validly issued, fully paid and non-assessable; and no preemptive rights
of stockholders exist with respect to any of the Shares or the issue and sale
thereof. Neither the filing of the Registration Statement nor the offering or
sale of the Shares as contemplated by this Agreement gives rise to any rights,
other than those which have been waived or satisfied, for or relating to the
registration of any shares of Common Stock.
(v) The information set forth under the caption "Capitalization"
in the Registration Statement and the Prospectus (and any similar section or
information contained in the General Disclosure Package) is true and correct.
All of the Shares conform to the description thereof contained in the
Registration Statement, the General Disclosure Package and the Prospectus. The
form of certificates for the Shares conforms to the corporate law of the
jurisdiction of the Company's incorporation and to any requirements of the
Company's organizational documents. Subsequent to the respective dates as of
which information is given in the Registration Statement, the General Disclosure
Package and the Prospectus, except as otherwise specifically stated therein or
in this Agreement, the Company has not: (i) issued any securities, other than
upon the exercise, in accordance with their terms, of warrants or options to
purchase Common Stock or other rights to purchase Common Stock that were
outstanding at or before the date hereof, or incurred any liability or
obligation, direct or contingent, for borrowed money; or (ii) declared or paid
any dividend or made any other distribution on or in respect to its capital
stock.
(vi) The Commission has not issued an order preventing or
suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus relating to the proposed offering of the Shares,
and no proceeding for that purpose or pursuant to Section 8A of the Act has been
instituted or, to the Company's knowledge, threatened by the Commission. The
Registration Statement contains, and the Prospectus and any amendments or
supplements thereto will contain, all statements which are required to be stated
therein by, and will conform to, the requirements of the Act and the Rules and
Regulations. The documents incorporated, or to be
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incorporated, by reference in the Prospectus, at the time filed with the
Commission conformed or will conform, in all respects to the requirements of the
Securities Exchange Act of 1934 ("Exchange Act") or the Act, as applicable, and
the rules and regulations of the Commission thereunder. The Registration
Statement and any amendment thereto do not contain, and will not contain, any
untrue statement of a material fact and do not omit, and will not omit, to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue statement
of a material fact; and do not omit, and will not 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 Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus, or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter
through the Representatives, specifically for use therein, it being understood
and agreed that the only such information is that described in Section 13
herein.
(vii) Each Issuer Free Writing Prospectus, as of its issue date
and at all subsequent times through the completion of the public offer and sale
of the Shares or until any earlier date that the Company notified or notifies
the Representatives, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document incorporated by
reference therein that has not been superseded or modified.
(viii) The Company has not, directly or indirectly, distributed
and will not distribute any offering material in connection with the offering
and sale of the Shares other than any Preliminary Prospectus, the Prospectus and
other materials, if any, permitted under the Act and consistent with Section
4(a)(ii) below. The Company will file with the Commission all Issuer Free
Writing Prospectuses required to be filed in the time required under Rule 433(d)
under the Act. The Company has satisfied or will satisfy the conditions in Rule
433 under the Act to avoid a requirement to file with the Commission any
electronic road show.
(ix) (i) At the time of filing the Registration Statement and
(ii) as of the date hereof (with such date being used as the determination date
for purposes of this clause (ii)), the Company was not and is not an "ineligible
issuer" (as defined in Rule 405 under the Act, without taking into account any
determination by the Commission pursuant to Rule 405 under the Act that it is
not necessary that the Company be considered an ineligible issuer), including,
without limitation, for purposes of Rules 164 and 433 under the Act with respect
to the offering of the Shares as contemplated by the Registration Statement.
(x) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules, incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus, present fairly the financial position and the results of operations
and cash flows of the Company and the consolidated Subsidiaries, at the
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indicated dates and for the indicated periods. Such financial statements and
related schedules have been prepared in accordance with generally accepted
principles of accounting in the United States ("GAAP"), consistently applied
throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made. The summary and selected consolidated financial and statistical data
included in the Registration Statement, the General Disclosure Package and the
Prospectus presents fairly the information shown therein and such data has been
compiled on a basis consistent with the financial statements incorporated by
reference therein and the books and records of the Company. The Company and the
Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations or any "variable
interest entities" within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus. There are no financial statements
(historical or pro forma) that are required to be included in the Registration
Statement, the General Disclosure Package or the Prospectus that are not
included as required.
(xi) Deloitte & Touche LLP, who have certified certain of the
financial statements filed with the Commission and incorporated by reference in
the Registration Statement, the General Disclosure Package and the Prospectus,
is an independent registered public accounting firm with respect to the Company
and the Subsidiaries within the meaning of the Act and the applicable Rules and
Regulations and the Public Company Accounting Oversight Board (United States)
(the "PCAOB").
(xii) Except as disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, neither the Company nor any of
the Subsidiaries is aware of (i) any material weakness in its internal control
over financial reporting or (ii) any change in internal control over financial
reporting that has materially affected, or is reasonably likely to materially
affect, the Company's internal control over financial reporting.
(xiii) Solely to the extent that the Xxxxxxxx-Xxxxx Act of 2002,
as amended, and the rules and regulations promulgated by the Commission and the
Nasdaq Global Market thereunder (the "Xxxxxxxx-Xxxxx Act") has been applicable
to the Company, there is and has been no failure on the part of the Company to
comply in all material respects with any provision of the Xxxxxxxx-Xxxxx Act.
The Company has taken all necessary actions to ensure that it is in compliance
in all material respects with all provisions of the Xxxxxxxx-Xxxxx Act that are
in effect and with which the Company is required to comply.
(xiv) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or any of the
Subsidiaries before any court or administrative agency or otherwise which if
determined adversely to the Company or any of the Subsidiaries would either (i)
have, individually or in the aggregate, a material adverse effect on the
earnings, business, management, properties, assets, rights, operations or
condition (financial or otherwise) or prospects of the Company and of the
Subsidiaries taken as a whole or (ii) prevent the consummation of the
transactions contemplated hereby (the occurrence of any such effect or any
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such prevention described in the foregoing clauses (i) and (ii) being referred
to as a "Material Adverse Effect"), except as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus.
(xv) The Company and the Subsidiaries have good and marketable
title to all of the personal property owned by them and reflected in the
consolidated financial statements hereinabove described or described in the
Registration Statement, the General Disclosure Package and the Prospectus,
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
those reflected in such financial statements or described in the Registration
Statement, the General Disclosure Package and the Prospectus or which do not
materially affect the value or interfere with the use thereof. The Company and
the Subsidiaries occupy their leased properties under valid and binding leases
conforming in all material respects to the description thereof set forth in the
Registration Statement, the General Disclosure Package and the Prospectus, with
such exceptions as do not materially interfere with the use by the Company or
the Subsidiaries thereof.
(xvi) The Company and the Subsidiaries have filed all Federal,
State, local and foreign tax returns which have been required to be filed,
subject to any permitted extensions, and have paid all taxes indicated by such
returns and all assessments received by them or any of them to the extent that
such taxes have become due and are not being contested in good faith and for
which an adequate reserve for accrual has been established in accordance with
GAAP. All tax liabilities have been adequately provided for in the financial
statements of the Company, and the Company does not know of any actual or
proposed additional material tax assessments.
(xvii) Since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the
Prospectus, as each may be amended or supplemented, there has not been any
material adverse change or any development involving a prospective material
adverse change in or affecting the earnings, business, management, properties,
assets, rights, operations or condition (financial or otherwise), or prospects
of the Company and the Subsidiaries taken as a whole, whether or not occurring
in the ordinary course of business, and there has not been any material
transaction entered into or any material transaction that is probable of being
entered into by the Company or the Subsidiaries, other than transactions in the
ordinary course of business and changes and transactions described in the
Registration Statement, the General Disclosure Package and the Prospectus, as
each may be amended or supplemented. The Company and the Subsidiaries have no
material contingent obligations which are not disclosed in the Company's
financial statements which are incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus.
(xviii) Neither the Company nor any of the Subsidiaries is or
with the giving of notice or lapse of time or both, will be, (i) in violation of
its certificate of incorporation, by-laws, certificate of formation, limited
liability agreement, partnership agreement or other organizational documents or
(ii) in violation of or in default under any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party or by which
it, or any of its properties, is bound and, solely with respect to this clause
(ii), which violation or default would have a Material Adverse
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Effect. The execution and delivery of this Agreement and the consummation of the
transactions herein contemplated and the fulfillment of the terms hereof will
not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary or any of their respective properties is
bound, or of the certificate of incorporation or by-laws of the Company or any
law, order, rule or regulation judgment, order, writ or decree applicable to the
Company or any Subsidiary of any court or of any government, regulatory body or
administrative agency or other governmental body having jurisdiction over the
Company or any Subsidiary or any of their respective properties.
(xix) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement has been duly and validly
authorized by all necessary corporate action on the part of the Company, and
this Agreement has been duly executed and delivered by the Company.
(xx) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the Commission,
the National Association of Securities Dealers, Inc. (the "NASD") or such
additional steps as may be necessary to qualify the Shares for public offering
by the Underwriters under state securities or Blue Sky laws) has been obtained
or made and is in full force and effect.
(xxi) The Company and each of the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities which are
necessary to the conduct of their businesses; the Company and the Subsidiaries
each own or possess the right to use all patents, patent rights, trademarks,
trade names, service marks, service names, copyrights, license rights, know-how
(including trade secrets and other unpatented and unpatentable proprietary or
confidential information, systems or procedures) and other intellectual property
rights ("Intellectual Property") necessary to carry on their business in all
material respects; neither the Company nor any of the Subsidiaries has infringed
any Intellectual Property of any other person or entity, which infringement the
Company believes could reasonably be expected to have a Material Adverse Effect.
The Company has taken all reasonable steps necessary to secure interests in such
Intellectual Property from its contractors. There are no outstanding options,
licenses or agreements of any kind relating to the Intellectual Property of the
Company that are required to be described in the Registration Statement, the
General Disclosure Package and the Prospectus and are not described in all
material respects. The Company is not a party to or bound by any options,
licenses or agreements with respect to the Intellectual Property of any other
person or entity that are required to be set forth in the Prospectus and are not
described in all material respects. None of the technology employed by the
Company has been obtained or is being used by the Company in violation of any
contractual obligation binding on the Company or, to the knowledge of the
Company, on any of its officers, directors or employees or otherwise in
violation of the rights of any persons; except as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus, the Company has
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not received any written or oral communications alleging that the Company has
violated, infringed or conflicted with, or, by conducting its business as set
forth in the Registration Statement, the General Disclosure Package and the
Prospectus, would violate, infringe or conflict with, any of the Intellectual
Property of any other person or entity that the Company believes could
reasonably be expected to have a Material Adverse Effect.
(xxii) Neither the Company, nor to the Company's knowledge, any
of its affiliates, has taken or may take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of the
Shares. The Company acknowledges that the Underwriters may engage in passive
market making transactions in the Shares on the Nasdaq Global Market in
accordance with Regulation M under the Exchange Act.
(xxiii) Neither the Company nor any Subsidiary is or, after
giving effect to the offering and sale of the Shares contemplated hereunder and
the application of the net proceeds from such sale as described in the
Registration Statement, General Disclosure Package and the Prospectus, will be
an "investment company" within the meaning of such term under the Investment
Company Act of 1940 as amended (the "1940 Act"), and the rules and regulations
of the Commission thereunder.
(xxiv) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxv) The Company has established and maintains "disclosure
controls and procedures" (as defined in Rules 13a-14(c) and 15d-14(c) under the
Exchange Act); the Company's "disclosure controls and procedures" are reasonably
designed to ensure that all information (both financial and non-financial)
required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the rules and regulations of the Exchange Act, and
that all such information is accumulated and communicated to the Company's
management as appropriate to allow timely decisions regarding required
disclosure and to make the certifications of the Chief Executive Officer and
Chief Financial Officer of the Company required under the Exchange Act with
respect to such reports.
(xxvi) The statistical, industry-related and market-related data
included in the Registration Statement, the General Disclosure Package and the
Prospectus are based on or derived
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from sources which the Company reasonably and in good faith believes are
reliable and accurate, and such data agree with the sources from which they are
derived.
(xxvii) The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial
record-keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, applicable money laundering
statutes and applicable rules and regulations thereunder (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 or its subsidiaries with respect to the Money Laundering Laws is
pending or, to the Company's knowledge, threatened.
(xxviii) Neither the Company nor, to the Company's knowledge, any
director, officer, agent, employee or affiliate of the Company 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.
(xxix) The Company and each of the Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as are reasonable
for the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses.
(xxx) The Company and each Subsidiary is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company and each Subsidiary would have any liability; the
Company and each Subsidiary has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company or any Subsidiary would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
(xxxi) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's officers,
directors or 5% or greater securityholders, except as set forth in the
Registration Statement.
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(xxxii) Neither the Company nor any of the Subsidiaries is in
violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim would, individually or
in the aggregate, have a Material Adverse Effect; and the Company is not aware
of any pending investigation which could reasonably be expected to lead to such
a claim.
(xxxiii) The Shares have been approved for listing subject to
notice of issuance on the Nasdaq Global Market.
(xxxiv) There are no relationships or related-party transactions
involving the Company or any of the Subsidiaries or any other person required to
be described in the Prospectus which have not been described as required.
(xxxv) Neither the Company nor any of the Subsidiaries has made
any contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law which violation is
required to be disclosed in the Prospectus.
(xxxvi) None of the information on (or hyperlinked from) the
Company's website at xxx.xxxxxxxxxxxxx.xxx includes or constitutes a "free
writing prospectus" as defined in Rule 405 under the Act and the Company does
not maintain or support any website other than xxx.xxxxxxxxxxxxx.xxx.
(xxxvii) No Subsidiary of the Company is currently prohibited,
directly or indirectly, 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 property or assets to the Company or any
other Subsidiary of the Company.
(xxxviii) Neither the Company nor any of its Subsidiaries nor, to
the Company's knowledge, any 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
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (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 its affiliates
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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.
(b) Each of the Selling Stockholders, including Cree, Inc. ("Cree")
and the Affiliated Selling Stockholders except as specifically set forth below,
severally represents and warrants to each of the Underwriters as follows:
(i) Such Selling Stockholder now has and at the Closing Date and
the Option Closing Date, as the case may be (as such dates are hereinafter
defined) will have (1) good and marketable title to the Firm Shares and the
Option Shares, if any, to be sold by such Selling Stockholder, free and clear of
any liens, encumbrances, equities and claims, and (2) full right, power and
authority to effect the sale and delivery of such Firm Shares and Option Shares;
and upon the delivery of, against payment for, such Firm Shares and Option
Shares pursuant to this Agreement, the Underwriters will acquire good and
marketable title thereto, free and clear of any liens, encumbrances, equities
and claims.
(ii) Such Selling Stockholder has full right, power and authority
to execute and deliver this Agreement, the Power of Attorney and the Custodian
Agreement referred to below and to perform its obligations under such
Agreements. This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder. Each of the Power of Attorney and the
Custodian Agreement has been duly authorized, executed and delivered by or on
behalf of such Selling Stockholder and is a valid and binding agreement of such
Selling Stockholder, enforceable against such Selling Stockholder in accordance
with its terms. The execution and delivery of this Agreement and the
consummation by such Selling Stockholder of the transactions herein contemplated
and the fulfillment by such Selling Stockholder of the terms hereof will not
require any consent, approval, authorization, or other order of any court,
regulatory body, administrative agency or other governmental body (except as may
be required under the Act, state securities laws or Blue Sky laws) and will not
result in a breach of any of the terms and provisions of, or constitute a
default under, organizational documents of such Selling Stockholder, if not an
individual, or any indenture, mortgage, deed of trust or other agreement or
instrument to which such Selling Stockholder is a party, or of any order, rule
or regulation applicable to such Selling Stockholder of any court or of any
regulatory body or administrative agency or other governmental body having
jurisdiction, except to the extent such contravention, breach or default would
not be material to such Selling Stockholder or prevent the consummation of the
transactions contemplated hereby.
(iii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to, or which has constituted, or
which might reasonably be expected to cause or result in the stabilization or
manipulation of the price of the Common Stock of the Company and, other than as
permitted by the Act, the Selling Stockholder will not distribute any prospectus
or other offering material in connection with the offering of the Shares.
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(iv) Without having undertaken to determine independently the
accuracy or completeness of either the representations and warranties of the
Company contained herein or the information contained in the Registration
Statement, the General Disclosure Package and the Prospectus, such Affiliated
Selling Stockholder has no reason to believe that the representations and
warranties of the Company contained in this Section 1 are not true and correct,
is familiar with the Registration Statement, the General Disclosure Package and
the Prospectus and has no knowledge that any of them contains an untrue
statement of a material fact or omits 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; and the sale of the Firm Shares and the
Option Shares by such Affiliated Selling Stockholder pursuant hereto is not
prompted by any information concerning the Company or any of the Subsidiaries
which is not set forth in the Registration Statement, the General Disclosure
Package and the Prospectus or the documents incorporated by reference therein.
The information pertaining to such Selling Stockholder under the caption
"Selling Stockholders" in the Registration Statement and the Prospectus (and any
similar section or information contained in the General Disclosure Package) is
complete and accurate in all material respects.
(v) No consent, approval or waiver is required under any
instrument or agreement to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound or under which he, she or it is entitled to
any right or benefit, in connection with the offering, sale or purchase by the
Underwriters of any of the Shares which may be sold by such Selling Stockholder
under this Agreement or the consummation by such Selling Stockholder of any of
the other transactions contemplated hereby.
(vi) There are no affiliations or associations between any member
of the NASD and such Selling Stockholder or any affiliate of such Selling
Stockholder, except as set forth in the Registration Statement.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Sellers
agree to sell to the Underwriters and each Underwriter agrees, severally and not
jointly, to purchase, at a price of $17.955 per share, the number of Firm Shares
set forth opposite the name of each Underwriter in Schedule I hereof, subject to
adjustments in accordance with Section 9 hereof. The number of Firm Shares to be
purchased by each Underwriter from each Seller shall be as nearly as practicable
in the same proportion to the total number of Firm Shares being sold by each
Seller as the number of Firm Shares being purchased by each Underwriter bears to
the total number of Firm Shares to be sold hereunder. The obligations of the
Company and of each of the Selling Stockholders shall be several and not joint.
(b) Certificates in negotiable form for the total number of the Shares
to be sold hereunder by the Selling Stockholders have been placed in custody
with the Company as custodian (the "Custodian") pursuant to the Custody
Agreement (the "Custodian Agreement") executed by
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each Selling Stockholder for delivery of all Firm Shares and any Option Shares
to be sold hereunder by the Selling Stockholders. Each of the Selling
Stockholders specifically agrees that the Firm Shares and any Option Shares
represented by the certificates held in custody for the Selling Stockholders
under the Custodian Agreement are subject to the interests of the Underwriters
hereunder, that the arrangements made by the Selling Stockholders for such
custody are to that extent irrevocable, and that the obligations of the Selling
Stockholders hereunder shall not be terminable by any act or deed of the Selling
Stockholders (or by any other person, firm or corporation including the Company,
the Custodian or the Underwriters) or by operation of law (including the death
of an individual Selling Stockholder or the dissolution of a corporate Selling
Stockholder) or by the occurrence of any other event or events, except as set
forth in the Custodian Agreement. If any such event should occur prior to the
delivery to the Underwriters of the Firm Shares or the Option Shares hereunder,
certificates for the Firm Shares or the Options Shares, as the case may be,
shall be delivered by the Custodian in accordance with the terms and conditions
of this Agreement as if such event has not occurred. The Custodian is authorized
to receive and acknowledge receipt of the proceeds of sale of the Shares held by
it against delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be made in
Federal (same day) funds to an account designated by the Company for the shares
to be sold by it and to an account designated by the Custodian for the shares to
be sold by the Selling Stockholders, in each case against delivery of
certificates therefor to the Representatives for the several accounts of the
Underwriters. Such payment and delivery are to be made through the facilities of
The Depository Trust Company at 10:00 a.m., New York time, on the third business
day after the date of this Agreement or at such other time and date not later
than five business days thereafter as you and the Company shall agree upon, such
time and date being herein referred to as the "Closing Date." (As used herein,
"business day" means a day on which the New York Stock Exchange is open for
trading and on which banks in New York are open for business and not permitted
by law or executive order to be closed.)
(d) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Selling Stockholders listed on Schedule III hereto hereby grant an option to the
several Underwriters to purchase the Option Shares at the price per share as set
forth in the first paragraph of this Section 2. The maximum number of Option
Shares to be sold by the Selling Stockholders is set forth opposite their
respective names on Schedule III hereto. The option granted hereby may be
exercised in whole or in part by giving written notice (i) at any time before
the Closing Date and (ii) at any time, from time to time thereafter within 30
days after the date of this Agreement, by you, as Representatives of the several
Underwriters, to the Company, the Attorney-in-Fact, and the Custodian setting
forth the number of Option Shares as to which the several Underwriters are
exercising the option and the time and date at which such certificates are to be
delivered. If the option granted hereby is exercised in part, the respective
number of Option Shares to be sold by each of the Selling Stockholders listed in
Schedule III hereto shall be allocated between them in the order of priority set
forth on Schedule III hereto. The time and date at which certificates for Option
Shares are to be delivered shall be determined by the Representatives but shall
not be earlier than three nor later than 10 full business days after the
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exercise of such option, nor in any event prior to the Closing Date (such time
and date being herein referred to as the "Option Closing Date"). If the date of
exercise of the option is three or more days before the Closing Date, the notice
of exercise shall set the Closing Date as the Option Closing Date. The number of
Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the number of
Firm Shares being purchased by such Underwriter bears to the total number of
Firm Shares, adjusted by you in such manner as to avoid fractional shares. The
option with respect to the Option Shares granted hereunder may be exercised only
to cover over-allotments in the sale of the Firm Shares by the Underwriters.
You, as Representatives of the several Underwriters, may cancel such option at
any time prior to its expiration by giving written notice of such cancellation
to the Company and the Attorney-in-Fact. To the extent, if any, that the option
is exercised, payment for the Option Shares shall be made on the Option Closing
Date in Federal (same day) funds drawn to the order of the Company for the
Option Shares to be sold by it and to the order of "Color Kinetics Incorporated,
as Custodian" for the Option Shares to be sold by the Selling Stockholders
against delivery of certificates therefor through the facilities of The
Depository Trust Company, New York, New York.
(e) If on the Closing Date or Option Closing Date, as the case may be,
any Selling Stockholder fails to sell the Firm Shares or Option Shares which
such Selling Stockholder has agreed to sell on such date as set forth in
Schedule II hereto, the Company agrees that it will sell or arrange for the sale
of that number of shares of Common Stock to the Underwriters which represents
Firm Shares or the Option Shares which such Selling Stockholder has failed to so
sell, as set forth in Schedule II hereto, or such lesser number as may be
requested by the Representatives.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representatives deem it advisable to
do so. The Firm Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Representatives may from
time to time thereafter change the public offering price and other selling
terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
(a) The Company covenants and agrees with the several Underwriters
that:
(i) The Company will (A) prepare and timely file with the
Commission under Rule 424(b) under the Act a Prospectus in a form approved by
the Representatives containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rules 430A, 430B or
430C under the Act, (B) not file any amendment to the Registration
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Statement or distribute an amendment or supplement to the General Disclosure
Package or the Prospectus or document incorporated by reference therein of which
the Representatives shall not previously have been advised and furnished with a
copy or to which the Representatives shall have reasonably objected in writing
or which is not in compliance with the Rules and Regulations and (C) file on a
timely basis all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission subsequent to the date
of the Prospectus and prior to the termination of the offering of the Shares by
the Underwriters.
(ii) The Company will (i) not make any offer relating to the
Shares that would constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a "free writing prospectus" (as defined in Rule 405 under
the Act) required to be filed by the Company with the Commission under Rule 433
under the Act unless the Representatives approve its use in writing prior to
first use (each, a "Permitted Free Writing Prospectus"); provided that the prior
written consent of the Representatives shall be deemed to have been given in
respect of the Issuer Free Writing Prospectuses included in Schedule V hereto,
(ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the
Act applicable to any Issuer Free Writing Prospectus, including the requirements
relating to timely filing with the Commission, legending and record keeping and
(iv) not take any action that would result in an Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d) under the Act
a free writing prospectus prepared by or on behalf of such Underwriter that such
Underwriter otherwise would not have been required to file thereunder. The
Company will satisfy the conditions in Rule 433 under the Act to avoid a
requirement to file with the Commission any electronic road show.
(iii) Intentionally omitted.
(iv) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment thereto shall
have become effective, (B) of receipt of any comments from the Commission, (C)
of any request of the Commission for amendment of the Registration Statement or
for supplement to the General Disclosure Package or the Prospectus or for any
additional information, and (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus, or of the institution of any proceedings
for that purpose or pursuant to Section 8A of the Act. The Company will use its
best efforts to prevent the issuance of any such order and to obtain as soon as
possible the lifting thereof, if issued.
(v) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as the Representatives may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided 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 where it is not now so
qualified or required to file such a consent. The
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Company will, from time to time, prepare and file such statements, reports, and
other documents, as are or may be required to continue such qualifications in
effect for so long a period as the Representatives may reasonably request for
distribution of the Shares.
(vi) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary Prospectus
as the Representatives may reasonably request. The Company will deliver to, or
upon the order of, the Representatives, from time to time, as many copies of any
Issuer Free Writing Prospectus as the Representatives may reasonably request.
The Company will deliver to, or upon the order of, the Representatives during
the period when delivery of a Prospectus (or, in lieu thereof, the notice
referred to under Rule 173(a) under the Act) (the "Prospectus Delivery Period")
is required under the Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Representatives may reasonably
request. The Company will deliver to the Representatives at or before the
Closing Date, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will deliver to
the Representatives such number of copies of the Registration Statement
(including such number of copies of the exhibits filed therewith that may
reasonably be requested), including documents incorporated by reference therein,
and of all amendments thereto, as the Representatives may reasonably request.
(vii) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus (or, in lieu thereof, the notice referred to under
Rule 173(a) under the Act) is required by law to be delivered by an Underwriter
or dealer, any event shall occur as a result of which, in the judgment of the
Company or in the reasonable opinion of the Underwriters, it becomes necessary
to amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any time to
amend or supplement the Prospectus to comply with any law, the Company promptly
will either (i) prepare and file with the Commission an appropriate amendment to
the Registration Statement or supplement to the Prospectus or (ii) prepare and
file with the Commission an appropriate filing under the Exchange Act which
shall be incorporated by reference in the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will comply with the
law.
(viii) If the General Disclosure Package is being used to solicit
offers to buy the Shares at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances, not
misleading, or to make the statements therein not conflict with the information
contained in the Registration Statement then on file, or if it is necessary at
any time to amend or supplement the General Disclosure Package to comply with
any law, the Company promptly will either (i) prepare, file with the Commission
(if
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required) and furnish to the Underwriters an appropriate amendment or supplement
to the General Disclosure Package or (ii) prepare and file with the Commission
an appropriate filing under the Exchange Act which shall be incorporated by
reference in the General Disclosure Package so that the General Disclosure
Package as so amended or supplemented will not, in the light of the
circumstances, be misleading or conflict with the Registration Statement then on
file, or so that the General Disclosure Package will comply with law.
(ix) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 under the Act and will advise you in
writing when such statement has been so made available.
(x) Prior to the Closing Date, the Company will furnish to the
Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement, the General Disclosure
Package and the Prospectus.
(xi) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other securities convertible into or
exchangeable or exercisable for shares of Common Stock or derivative of Common
Stock, or agreement for such, (other than (i) the shares of Common Stock to be
sold hereunder, (ii) shares of Common Stock issued pursuant to outstanding
options, warrants or other rights under employee stock option or stock purchase
plans existing on the date of this Agreement, (iii) any options to purchase
shares of Common Stock granted under employee stock option or stock purchase
plans or warrants to purchase shares of Common Stock existing on the date of
this Agreement, and any shares of Common Stock issued by the Company upon
exercise of such options or warrants (it being understood that the shares of
Common Stock issued by the Company to the holders in (ii) or (iii) shall remain
subject to lock-up agreements that otherwise govern such shares of Common Stock)
will be made for a period of 90 days after the date of the Prospectus (the
"Initial Lock-Up Period"), directly or indirectly, by the Company otherwise than
hereunder or with the prior written consent of the Representatives.
Notwithstanding the foregoing, if (1) during the last 17 days of the Initial
Lock-Up Period, (A) the Company releases earnings results, or (B) the Company
discloses, through a press release or the filing of a Current Report on Form
8-K, the occurrence of a material event relating to the Company, or (2) prior to
the expiration of the Initial Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period following the last day of the
Initial Lock-Up Period, then in each case the restrictions imposed by this
Agreement shall continue to apply until the expiration of the 18-day period
beginning on the date of the release of the earnings results or the announcement
of material news or of a material event relating to the Company, as the case may
be, unless Deutsche Bank Securities Inc. waives, in writing, such extension.
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(xii) The Company will use its best efforts to list the Shares,
subject to notice of issuance, on the Nasdaq Global Market.
(xiii) The Company has caused each officer and director and
specific stockholders of the Company to furnish to you, on or prior to the date
of this agreement, a letter or letters, substantially in the form attached
hereto as Exhibit A (the "Lockup Agreement").
(xiv) The Company shall apply the net proceeds of its sale of the
Shares as set forth in the Registration Statement, General Disclosure Package
and the Prospectus and shall file such reports, if any, with the Commission with
respect to the sale of the Shares and the application of the proceeds therefrom
as may be required in accordance with Rule 463 under the Act.
(xv) The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Shares in such a manner as would
require the Company or any of the Subsidiaries to register as an investment
company under the 0000 Xxx.
(xvi) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Common Stock.
(xvii) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
(b) Each of the Selling Stockholders covenants and agrees with the
several Underwriters that:
(i) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other capital stock of the Company or
other securities convertible, exchangeable or exercisable for Common Stock or
derivative of Common Stock owned by the Selling Stockholder or request for the
registration of the offer or sale of any of the foregoing (or as to which the
Selling Stockholder has the right to direct the disposition of) will be made
during the Initial Lock-Up Period, directly or indirectly, by such Selling
Stockholder otherwise than hereunder or with the prior written consent of the
Representatives. Notwithstanding the foregoing, if (1) during the last 17 days
of the Initial Lock-Up Period, (A) the Company releases earnings results, or (B)
the Company discloses, through a press release or the filing of a Current Report
on Form 8-K, the occurrence of a material event relating to the Company, or (2)
prior to the expiration of the Initial Lock-Up Period, the Company announces
that it will release earnings results during the 16-day period following the
last day of the Initial Lock-Up Period, then in each case the restrictions
imposed by this Agreement shall continue to apply until the expiration of the
18-day period beginning on the date of the release of the earnings results or
the announcement of material news or of a material event relating to the
Company, as the case may be, unless the Representatives waive, in writing, such
extension.
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(ii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with
respect to the transactions herein contemplated, such Selling Stockholder agrees
to deliver to you prior to or at the Closing Date a properly completed and
executed United States Treasury Department Form W-8 or W-9 (or other applicable
form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company.
(iv) Such Selling Stockholder agrees that it will not prepare or
have prepared on its behalf or use or refer to, any "free writing prospectus"
(as defined in Rule 405 under the Act), and agrees that it will not distribute
any written materials in connection with the offer or sale of the Shares.
(v) During the Prospectus Delivery Period, such Selling
Stockholder will advise the Representatives promptly, and will confirm such
advice in writing to the Representatives, of any change in the information
relating to such Selling Stockholder in the Registration Statement, the
Prospectus or any document comprising the General Disclosure Package.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Sellers under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and disbursements of counsel for the Company and the
Selling Stockholders; any roadshow expenses; the cost of printing and delivering
to, or as requested by, the Underwriters copies of the Registration Statement,
Preliminary Prospectuses, the Issuer Free Writing Prospectuses, the Prospectus,
this Agreement, the Listing Application, the Blue Sky Survey and any supplements
or amendments thereto; the filing fees of the Commission; the filing fees and
expenses (including legal fees and disbursements) incident to securing any
required review by the NASD of the terms of the sale of the Shares; the Listing
Fee of the Nasdaq Global Market; the costs and expenses (including without
limitation any damages or other amounts payable in connection with legal or
contractual liability) associated with the reforming of any contracts for sale
of the Shares made by the Underwriters caused by a breach of the representation
in Section 1((a)(ii)); and the expenses, including the fees and disbursements of
counsel for the Underwriters, incurred in connection with the qualification of
the Shares under State securities or Blue Sky laws, not to exceed, in the
aggregate, $2,500. Any transfer taxes imposed on the sale of the Shares to the
several Underwriters will be paid by the Sellers pro rata. The Sellers shall
not, however, be required to pay for any of the Underwriter's expenses (other
than those related to qualification under NASD regulation and State securities
or Blue Sky laws) except that, if this Agreement shall not be consummated
because the conditions in Section 6 hereof are not satisfied, or
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because this Agreement is terminated by the Representatives pursuant to Section
11 hereof, or by reason of any failure, refusal or inability on the part of the
Company or the Selling Stockholders to perform any undertaking or satisfy any
condition of this Agreement or to comply with any of the terms hereof on their
part to be performed, unless such failure, refusal or inability is due primarily
to the default or omission of any Underwriter, the Company shall reimburse the
several Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but the Company and the Selling Stockholders shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the Firm
Shares on the Closing Date and the Option Shares, if any, on the Option Closing
Date are subject to the accuracy, as of the Applicable Time, the Closing Date or
the Option Closing Date, as the case may be, of the representations and
warranties of the Company and the Selling Stockholders contained herein, and to
the performance by the Company and the Selling Stockholders of their covenants
and obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and the Prospectus and each Issuer Free
Writing Prospectus required to be filed shall have been filed as required by
Rules 424, 430A, 430B, 430C or 433 under the Act, as applicable, within the time
period prescribed by, and in compliance with, the Rules and Regulations, and any
request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representatives and complied with to its reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended from time
to time, shall have been issued and no proceedings for that purpose or pursuant
to Section 8A under the Act shall have been taken or, to the knowledge of the
Company or the Selling Stockholders, shall be contemplated or threatened by the
Commission and no injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Xxxxx Xxxx LLP, counsel
for the Company and the Affiliated Selling Stockholders, dated the Closing Date
or the Option Closing Date, as the case may be, addressed to the Underwriters
(and stating that it may be relied upon by counsel to the Underwriters) to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement, the General
Disclosure Package and the Prospectus; Color Kinetics Security Corporation
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(the "Principal Subsidiary") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of The Commonwealth of
Massachusetts, with corporate power and authority to own or lease its properties
and conduct its business as described in the Registration Statement, the General
Disclosure Package and the Prospectus; the Company is duly qualified to transact
business in The Commonwealth of Massachusetts and each other jurisdiction set
forth on Exhibit A to such opinion; and the outstanding shares of capital stock
of the Principal Subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable and are owned of record by the Company; and, to
the best of such counsel's knowledge, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert
any obligations into any shares of capital stock or of ownership interests in
the Principal Subsidiary are outstanding.
(ii) The Company has authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the Registration Statement and
the Prospectus (and any similar section or information contained in the General
Disclosure Package); the outstanding shares of the Company's Common Stock,
including the Shares to be sold by the Selling Stockholders, have been, or, in
the case of any such shares to be issued to any Selling Stockholder upon the
exercise of any warrant or stock option, at the time of such sale by the Selling
Stockholder will be duly authorized and validly issued and are fully paid and
non-assessable; all of the Shares conform to the description thereof contained
in the Registration Statement, the General Disclosure Package and the
Prospectus; the certificates for the Shares, assuming they are in the form
heretofore filed with the Commission, are in due and proper form; the shares of
Common Stock, including the Option Shares, if any, to be sold by the Company
pursuant to this Agreement have been duly authorized and will be validly issued,
fully paid and non-assessable when issued and paid for as contemplated by this
Agreement; and no preemptive rights of stockholders exist with respect to any of
the Shares or the issue or sale thereof.
(iii) Except as described in or contemplated by the Registration
Statement, the General Disclosure Package and the Prospectus, to such counsel's
knowledge, there are no outstanding securities of the Company convertible or
exchangeable into or evidencing the right to purchase or subscribe for any
shares of capital stock of the Company and there are no outstanding or
authorized options, warrants or rights of any character obligating the Company
to issue any shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or subscribe for any
shares of such stock; and except as described in the Registration Statement, the
General Disclosure Package and the Prospectus, no holder of any securities of
the Company or any other person has the right, contractual or otherwise, which
has not been satisfied or effectively waived, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of, any of the
Shares or the right to have any Common Shares or other securities of the Company
included in the Registration Statement or the right, as a result of the filing
of the Registration Statement, to require registration under the Act of any
shares of Common Stock or other securities of the Company.
(iv) The Registration Statement has become effective under the
Act and, to the best of the knowledge of such counsel, no stop order proceedings
with respect thereto and no
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proceeding for that purpose or pursuant to Section 8A of the Act have been
instituted or are pending or threatened under the Act.
(v) The Registration Statement, the Prospectus and each amendment
or supplement thereto and documents incorporated by reference therein comply as
to form in all material respects with the requirements of the Act or the
Exchange Act, as applicable and the applicable rules and regulations thereunder
(except that such counsel need express no opinion as to the financial statements
and related schedules included or incorporated by reference therein). The
conditions for the use of Form S-3, set forth in the General Instructions
thereto, have been satisfied.
(vi) The statements under the caption "Description of Capital
Stock" in the Prospectus, insofar as such statements constitute a summary of
documents referred to therein or matters of law, fairly summarize in all
material respects the information called for with respect to such documents and
matters.
(vii) Such counsel does not know of any contracts or documents
required to be filed as exhibits to or incorporated by reference in the
Registration Statement or described in the Registration Statement, the General
Disclosure Package or the Prospectus which are not so filed, incorporated by
reference or described as required, and such contracts and documents as are
summarized in the Registration Statement, the General Disclosure Package or the
Prospectus are fairly summarized in all material respects.
(viii) Such counsel knows of no material legal or governmental
proceedings pending or threatened against the Company or any of the Subsidiaries
except as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus.
(ix) The execution and delivery of this Agreement and the
consummation of the transactions contemplated herein do not and will not
conflict with or violate any of the terms or provisions of the charter or
by-laws of the Company, or conflict with or result in a breach of, or default
under, any of the terms or provisions of any indenture, mortgage, deed of trust
or other agreement or instrument filed by the Company as an exhibit to any
annual, quarterly or current report incorporated by reference in the Prospectus.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions herein contemplated
(except such as have been made or previously obtained under the Act, and other
than as may be required by the NASD or as required by State securities and Blue
Sky laws, as to which such counsel need express no opinion) except such as have
been obtained or made, specifying the same.
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(xii) The Company is not, and will not become, as a result of the
consummation of the transactions contemplated by this Agreement, and application
of the net proceeds therefrom as described in the Prospectus, required to
register as an investment company under the 1940 Act.
(xiii) Any required filing of each Issuer Free Writing Prospectus
pursuant to Rule 433 under the Act has been made within the time period required
by Rule 433(d) under the Act.
(xiii) This Agreement has been duly authorized, executed and
delivered on behalf of the Selling Stockholders.
(xiv) Each Selling Stockholder has full legal right, power and
authority, and any approval required by law (except such as have been made or
previously obtained under the Act, and other than as required by State
securities and Blue Sky laws as to which such counsel need express no opinion),
to sell, assign, transfer and deliver the portion of the Shares to be sold by
such Selling Stockholder.
(xv) The Custodian Agreement and the Power of Attorney executed
and delivered by each Selling Stockholder is valid and binding and enforceable
against such Selling Stockholder in accordance with their respective terms.
(xvi) Assuming that payment for and delivery of the Shares to be
sold by each Selling Stockholder have been made as provided herein, and assuming
that at the time of such sale the Underwriters do not have notice of any adverse
claim to such Shares, within the meaning of Article 8 of the Uniform Commercial
Code, the Underwriters will have acquired good and marketable title to the
Shares being sold by each Selling Stockholder on the Closing Date, and the
Option Closing Date, as the case may be, free and clear of any adverse claim, as
defined in Article 8 of the Uniform Commercial Code.
(xvii) No consent, approval or waiver is required under any
instrument or agreement known to such counsel to which such Selling Stockholder
is a party or by which such Selling Stockholder is bound or under which it is
entitled to any right or benefit in connection with the offering, sale or
purchase by the Underwriters of any of the Shares which may be sold by such
Selling Stockholder under this Agreement or the consummation by such Selling
Stockholder of any of the other transactions contemplated hereby.
In rendering such opinion Xxxxx Xxxx LLP may rely as to matters
governed by the laws of states other than Massachusetts or Federal laws on local
counsel in such jurisdictions and as to the matters set forth in subparagraphs
(xiii) through (xvii) on the opinions of other counsel representing the
respective Selling Stockholders, provided that in each case Xxxxx Xxxx LLP shall
state that they believe that they and the Underwriters are justified in relying
on such other counsel.
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In addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that (i) the Registration Statement, at the time it
became effective under the Act (including the information deemed to be a part of
the Registration Statement at the time it became effective pursuant to Rules
430A, 430B or 430C under the Act) and as of the Closing Date or the Option
Closing Date, as the case may be, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
General Disclosure Package, as of the Applicable Time, contained an 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 and (iii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations and as
of the Closing Date or the Option Closing Date, as the case may be, contained or
contains an untrue statement of a material fact or omitted or omits 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 (except that such
counsel need express no view as to financial statements and schedules and other
financial data therein). With respect to such statement, Xxxxx Xxxx LLP may
state that their belief is based upon the procedures set forth therein, but is
without independent check and verification.
(c) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Smith, Anderson, Blount,
Dorsett, Xxxxxxxx & Xxxxxxxx LLP, counsel for Cree, Inc., dated the Closing Date
or the Option Closing Date, as the case may be, addressed to the Underwriters
(and stating that it may be relied upon by counsel to the Underwriters) to the
effect that:
(i) This Agreement has been duly authorized by, and executed and
delivered on behalf of, Cree.
(ii) Cree has full legal right, power and authority, and any
approval required by law (except such as have been made or previously obtained
under the Act, and other than as required by State securities and Blue Sky laws
as to which such counsel need express no opinion), to sell, assign, transfer and
deliver the portion of the Shares to be sold by Cree.
(iii) The Custodian Agreement and the Power of Attorney executed
and delivered by Cree are valid and binding and enforceable against Cree in
accordance with their respective terms.
(iv) Assuming that payment for and delivery of the Shares to be
sold by Cree has been made as provided herein, and assuming that at the time of
such sale the Underwriters do not have "notice of any adverse claim" (within the
meaning of Article 8 of the Uniform Commercial Code) to such Shares, the
Underwriters will have acquired good and marketable title to the Shares being
sold by Cree on the Closing Date, and the Option Closing Date, as the case may
be, free and clear of any adverse claim, as defined in Article 8 of the Uniform
Commercial Code.
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(v) No consent, approval or waiver is required under any
instrument or agreement known to counsel for Cree to which Cree is a party or by
which Cree is bound or under which it is entitled to any right or benefit in
connection with the offering, sale or purchase by the Underwriters of any of the
Shares which may be sold by Cree under this Agreement or the consummation by
Cree of any of the other transactions contemplated hereby.
In rendering such opinion, counsel for Cree may (x) expressly assume,
based upon the representations and warranties of the Company contained in the
Agreement and/or the opinion of counsel for the Company provided for in this
Agreement, that the Shares to be sold by Cree have been duly and validly issued
by the Company to Cree and are fully paid and non-assessable; (y) expressly
assume, based upon the representations and warranties of Cree contained in the
Underwriting Agreement that Cree has, on the Closing Date, or the Option Closing
Date, as the case may be, good and marketable title to the Shares to be sold and
delivered on such date; and (z) expressly identify those instruments or
agreements that are within the knowledge of counsel for Cree for purposes of the
opinion set forth in Section 6(c)(v) as (A) all documents filed as exhibits to
Cree's Annual Report on Form 10-K for the fiscal year ended June 25, 2006 and
subsequent periodic reports filed with the Commission prior to the date of this
Agreement and (B) all agreements relating to Cree's acquisition of any of the
Shares from the Company.
(d) The Representatives shall have received on the Closing Date
or the Option Closing Date, as the case may be, the opinion of Xxxx Xxxxxxxxxx &
Sacks, P.C., counsel for the Company, dated the Closing Date or the Option
Closing Date, as the case may be, addressed to the Underwriters (and stating
that it may be relied upon by counsel to the Underwriters) to the effect that:
(i) As to the statements under the captions "Our Business -
Intellectual Property Strategy," "Risks Related to Our Business - If we are
unable to obtain and maintain patent protection for our technology and otherwise
protect our intellectual property, the value of our technology and products will
be adversely affected," and "Our Business - Intellectual Property Strategy and
Technology" nothing has come to the attention of such counsel which caused them
to believe that these portions of the Prospectus Supplement as of the date of
the opinion, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(ii) To the knowledge of such counsel, no material action, suit,
claim or proceeding relating to patents, patent rights or licenses, trademarks
or trademark rights, copyrights, collaborative research, licenses or royalty
arrangements or agreements or trade secrets, know-how or proprietary techniques,
including processes and substances, owned by or affecting the business or
operations of the Company, are pending or threatened against the Company or any
of its officers or directors, other than those specifically identified in the
portion of the Prospectus Suupplement under the caption "Our Business - Legal
Proceedings."
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(iii) The Company is listed in the records of the United States
Patent and Trademark Office (USPTO) as the holder of record of the patents
listed on a schedule to such opinion (the "Patents") and each of the
applications listed on a schedule to such opinion (the "Applications"). To the
knowledge of such counsel, the Company is the sole owner of the Patents and
Applications, and there are no claims of third parties to any ownership interest
with respect to any of the Patents or Applications, and no lien appears of
record at the USPTO. To the knowledge of such counsel, the Applications are
being pursued by the Company. Such counsel is not aware of any material defect
in formalities in connection with the filing of the Applications on behalf of
the Company.
(iv) The Company is listed in the records of the appropriate
foreign patent offices as the sole holder of record of the foreign patents
listed on a schedule to such opinion (the "Foreign Patents") and each of the
applications listed on a schedule to such opinion (the "Foreign Applications").
Such counsel has no reason to believe that the Company is not the sole owner of
the Foreign Patents and Foreign Applications, and knows of no claims of third
parties to any ownership interest or lien with respect to any of the Foreign
Patents or Foreign Applications. To the knowledge of such counsel, the Foreign
Applications are being pursued by the Company. Such counsel is not aware of any
material defect in formalities in connection with the filing of the Foreign
Applications on behalf of the Company.
(v) Nothing has come to the attention of such counsel which has
caused such counsel to believe that the Patents or Foreign Patents do not
include valid claims or are not enforceable. Such counsel has no knowledge of
any facts or any reason that would prevent valid and enforceable claims from
being issued or granted in any allowed Application or Foreign Application,
thereby affording the Company useful patent protection with respect thereto.
(e) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Xxxxxx Xxxxx & Xxxxxxxx,
LLP, counsel for the Company, dated the Closing Date or the Option Closing Date,
as the case may be, addressed to the Underwriters (and stating that it may be
relied upon by counsel to the Underwriters) to the effect that:
(i) As to the statements under the captions "Risks Related to Our
Business - We may incur substantial costs or lose important rights as a result
of litigation or other proceedings relating to patent and other intellectual
property rights," and "Our Business - Legal Proceedings," nothing has come to
the attention of such counsel which caused them to believe that the
above-mentioned sections of the Registration Statement and the Prospectus and
any amendment or supplement thereto made available and reviewed by such counsel,
at the time the Registration Statement became effective and at all times
subsequent thereto up to and on the Closing Date and on any Option Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
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(ii) Such counsel knows of no material action, suit, claim or
proceeding relating to patents, patent rights or licenses, trademarks or
trademark rights, copyrights, collaborative research, licenses or royalty
arrangements or agreements or trade secrets, know-how or proprietary techniques,
including processes and substances, owned by or affecting the business or
operations of the Company which are pending or threatened against the Company or
any of its officers or directors, other than as appear in the above-mentioned
sections of the Registration Statement and the Prospectus.
(f) The Representatives shall have received from Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Underwriters, an
opinion dated the Closing Date or the Option Closing Date, as the case may be,
substantially to the effect that (i) the Company is a corporation duly
incorporated and validly existing under, and by virtue of the laws of the State
of Delaware, (ii) the Firm Shares and the Optional Shares have been duly
authorized and, when issued and delivered in accordance with the terms hereto,
will be validly issued, fully paid and non-assessable and (iii) the Company is a
duly incorporated and validly existing corporation under the laws of the State
of Delaware. In rendering such opinion Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation may rely as to all matters governed other than by the
laws of the State of Delaware or Federal laws on the opinion of counsel referred
to in Paragraph (b) of this Section 6. In addition to the matters set forth
above, such opinion shall also include a statement to the effect that nothing
has come to the attention of such counsel which leads them to believe that (i)
the Registration Statement, or any amendment thereto, as of the time it became
effective under the Act (including the information deemed to be a part of the
Registration Statement at the time it became effective pursuant to Rules 430A,
430B or 430C under the Act) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the General Disclosure Package,
as of the Applicable Time, contained an 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 and (iii) the Prospectus, or any supplement thereto, on the date it
was filed pursuant to the Rules and Regulations and as of the date hereof,
contained or contains an 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 (except that
such counsel need express no view as to financial statements and schedules and
other financial data therein). With respect to such statement, Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation may state that their belief is based
upon the procedures set forth therein, but is without independent check and
verification.
(g) You shall have received, on each of the date hereof, the Closing
Date and, if applicable, the Option Closing Date, a letter dated the date
hereof, the Closing Date or the Option Closing Date, as the case may be, in form
and substance satisfactory to you, of Deloitte & Touche LLP confirming that they
are an independent registered public accounting firm with respect to the Company
and the Subsidiaries within the meaning of the Act and the applicable Rules and
Regulations and the PCAOB and stating that in their opinion the financial
statements and schedules examined by them and included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus comply in form in all material respects with the
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applicable accounting requirements of the Act and the related Rules and
Regulations; and containing such other statements and information as are
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement, the General Disclosure
Package and the Prospectus.
(h) The Representatives shall have received on the Closing Date and,
if applicable, the Option Closing Date, as the case may be, a certificate or
certificates of the Chief Executive Officer and the Chief Financial Officer of
the Company to the effect that, as of the Closing Date or the Option Closing
Date, as the case may be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the Act
and no stop order suspending the effectiveness of the Registration Statement or
no order preventing or suspending the use of any Preliminary Prospectus, any
Issuer Free Writing Prospectus or the Prospectus has been issued, and no
proceedings for such purpose or pursuant to Section 8A of the Act have been
taken or are, to his or her knowledge, contemplated or threatened by the
Commission;
(ii) The representations and warranties of the Company contained
in Section 1 hereof are true and correct as of the Closing Date or the Option
Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to Rules
424, 430A, 430B or 430C under the Act have been made as and when required by
such rules;
(iv) He has carefully examined the General Disclosure Package and
any individual Limited Use Free Writing Prospectus and, in his opinion, as of
the Applicable Time, the statements contained in the General Disclosure Package
and any individual Limited Use Free Writing Prospectus did not contain any
untrue statement of a material fact, and such General Disclosure Package and any
individual Limited Use Free Writing Prospectus, when considered together with
the General Disclosure Package, did not 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;
(v) He has carefully examined the Registration Statement and, in
his opinion, as of the effective date of the Registration Statement, the
Registration Statement and any amendments thereto did not contain any untrue
statement of a material fact and did not omit to state a material fact necessary
in order to make the statements therein not misleading, and since the effective
date of the Registration Statement, no event has occurred which should have been
set forth in a supplement to or an amendment of the Prospectus which has not
been so set forth in such supplement or amendment;
(vi) He has carefully examined the Prospectus and, in his
opinion, as of its date and the Closing Date or the Option Closing Date, as the
case may be, the Prospectus and any amendments and supplements thereto did not
contain any untrue statement of a material fact and did
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not 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; and
(vii) Since the respective dates as of which information is given
in the Registration Statement, the General Disclosure Package and Prospectus,
there has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the business, management,
properties, assets, rights, operations or condition (financial or otherwise) or
prospects of the Company and the Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business.
(i) The Representatives shall have received on the Closing Date and,
if applicable, the Option Closing Date, as the case may be, a certificate of the
Selling Stockholders to the effect that, as of the Closing Date or the Option
Closing Date, as the case may be, each of them severally represents as follows:
(i) The representations and warranties of such Selling
Stockholder contained in Section 1 hereof are true and correct as of the Closing
Date or the Option Closing Date, as the case may be; and
(ii) Such Selling Stockholder has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or prior to such date.
(j) On the date hereof, the Selling Stockholders shall have furnished
for review by the Representatives executed copies of the Power of Attorney and
Custodian Agreement.
(k) The Company and the Selling Stockholders shall have furnished to
the Representatives such further certificates and documents confirming the
representations and warranties, covenants and conditions contained herein and
related matters as the Representatives may reasonably have requested.
(l) The Firm Shares and Option Shares, if any, have been duly listed,
subject to notice of issuance, on the Nasdaq Global Market.
(m) The Lockup Agreements described in Section 4(a)(x) are in full
force and effect.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Representatives and to Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the
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Underwriters hereunder may be terminated by the Representatives by notifying the
Company and the Selling Stockholders of such termination in writing or by
telegram at or prior to the Closing Date or the Option Closing Date, as the case
may be.
In such event, the Selling Stockholders, the Company and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLERS.
The obligations of the Sellers to sell and deliver the portion of the
Shares required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter, the
directors, officers, agents, representatives and attorneys of each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities to which such Underwriter, the directors,
officers, agents, representatives and attorneys of each Underwriter or any such
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus or any amendment or supplement thereto, (ii) with respect to the
Registration Statement or any amendment or supplement thereto, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (iii) with respect
to any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(iv) with respect to any Issuer Free Writing Prospectus, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, when considered together with the
General Disclosure Package and in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement, or omission or alleged omission made in the Registration Statement,
any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus,
or such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use therein,
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it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 13 herein;
and
(2) to reimburse each Underwriter, each Underwriters' directors,
officers, agents, representatives and attorneys, and each such controlling
person upon demand for any legal or other out-of-pocket expenses reasonably
incurred by such Underwriter, each Underwriters' directors, officers, agents,
representatives and attorneys or such controlling person in connection with
investigating or defending any such loss, claim, damage or liability, action or
proceeding or in responding to a subpoena or governmental inquiry related to the
offering of the Shares, whether or not such Underwriter or controlling person is
a party to any action or proceeding. In the event that it is finally judicially
determined that the Underwriters were not entitled to receive payments for legal
and other expenses pursuant to this subparagraph, the Underwriters will promptly
return all sums that had been advanced pursuant hereto.
(b) Each Selling Stockholder, severally and not jointly, agrees to
indemnify the Underwriters, each Underwriters' directors, officers, agents,
representatives and attorneys and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to which such
Underwriter or controlling person may become subject under the Act or otherwise
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus, the Prospectus or any amendment or supplement thereto, or (ii) with
respect to the Registration Statement or any amendment or supplement thereto,
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
with respect to any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading or
(iv) with respect to any Issuer Free Writing Prospectus, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, when considered together with the
General Disclosure Package and in the light of the circumstances under which
they were made, not misleading; provided, however, that the Selling Stockholders
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus, the Prospectus, or such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Company or the
Selling Stockholders by or through the Representatives specifically 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 Section 13 herein; provided further, that Cree will be liable in each
case only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission has been made in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus, or
such amendment or supplement, in reliance upon and in conformity with written
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information furnished to the Company by or through Cree specifically for use
therein. The liability of a Selling Stockholder under the indemnity agreement
contained in this paragraph shall be limited to an amount not exceeding the net
proceeds received by such Selling Stockholder from the sale of Shares hereunder
(after deducting the underwriting discount). This indemnity obligation will be
in addition to any liability which the Company or the Selling Stockholders may
otherwise have.
(c) Each Underwriter severally and not jointly will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, the Selling Stockholders, and each person, if
any, who controls the Company or the Selling Stockholders within the meaning of
the Act, against any losses, claims, damages or liabilities to which the Company
or any such director, officer, Selling Stockholder or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendment
or supplement thereto, (ii) with respect to the Registration Statement or any
amendment or supplement thereto, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) with respect to any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (iv) with respect to
any Issuer Free Writing Prospectus, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, when considered together with the General Disclosure Package
and in the light of the circumstances under which they were made, not
misleading, and will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, Selling Stockholder or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically 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 Section 13
herein. This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a), (b) or (c) shall be available to any party who shall fail to give notice
as provided in this Section 8(d) if the party to whom notice was not given was
unaware of the proceeding to which such
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notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a), (b) or (c). In case any such proceeding shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the indemnified
party in the event (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to
assume the defense and employ counsel reasonably acceptable to the indemnified
party within a reasonable period of time after notice of commencement of the
action. It is understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you in the case
of parties indemnified pursuant to Section 8(a) or (b) and by the Company and
the Selling Stockholders in the case of parties indemnified pursuant to Section
8(c). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. In addition, the indemnifying party will
not, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding of which indemnification may be sought hereunder
(whether or not any indemnified party is an actual or potential party to such
claim, action or proceeding) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action or proceeding.
(e) To the extent the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then 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 or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the
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Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law 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
Stockholders 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 or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholders 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 Stockholders 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 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 Stockholders 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.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section
8(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 Section 8(e). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 8(e) 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), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter, (ii) 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, and (iii) no Selling Stockholder
shall be required to contribute any amount in excess of the proceeds received by
such Selling Stockholder from the Underwriters in the offering. The
Underwriters' obligations in this Section 8(e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or
any supplement or amendment thereto, each party against whom contribution may be
sought under this Section 8 hereby consents to the jurisdiction of any court
having jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon it by any other contributing party
and consents to the service of such process and agrees that any other
contributing party may join it as an additional defendant in any such proceeding
in which such other contributing party is a party.
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(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter, its directors or officers
or any person controlling any Underwriter, the Company, its directors or
officers or any persons controlling the Company, (ii) acceptance of any Shares
and payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to any Underwriter, its directors or officers or any person
controlling any Underwriter, or to the Company, its directors or officers, or
any person controlling the Company, or to a Selling Stockholder or any person
controlling a Selling Stockholder, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
8.
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9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case may be,
any Underwriter shall fail to purchase and pay for the portion of the Shares
which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company or a Selling
Stockholder), you, as Representatives of the Underwriters, shall use your
reasonable efforts to procure within 36 hours thereafter one or more of the
other Underwriters, or any others, to purchase from the Company and the Selling
Stockholders such amounts as may be agreed upon and upon the terms set forth
herein, the Shares which the defaulting Underwriter or Underwriters failed to
purchase. If during such 36 hours you, as such Representatives, shall not have
procured such other Underwriters, or any others, to purchase the Shares agreed
to be purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of shares with respect to which such default shall occur does
not exceed 10% of the Shares to be purchased on the Closing Date or the Option
Closing Date, as the case may be, the other Underwriters shall be obligated,
severally, in proportion to the respective numbers of Shares which they are
obligated to purchase hereunder, to purchase the Shares which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate number
of shares of Shares with respect to which such default shall occur exceeds 10%
of the Shares to be purchased on the Closing Date or the Option Closing Date, as
the case may be, the Company and the Selling Stockholders or you as the
Representatives of the Underwriters will have the right, by written notice given
within the next 36-hour period to the parties to this Agreement, to terminate
this Agreement without liability on the part of the non-defaulting Underwriters
or of the Company or of the Selling Stockholders except to the extent provided
in Sections 5 and 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 9, the Closing Date or Option Closing
Date, as the case may be, may be postponed for such period, not exceeding seven
days, as you, as Representatives, may determine in order that the required
changes in the Registration Statement, the General Disclosure Package or in the
Prospectus or in any other documents or arrangements may be effected. The term
"Underwriter" includes any person substituted for a defaulting Underwriter. Any
action taken under this Section 9 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: if to the Underwriters, to Deutsche Bank Securities
Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Syndicate
Manager, with a copy to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel; if to the Company or the Selling
Stockholders, to Color Kinetics Incorporated, 00 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel.
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11. TERMINATION.
This Agreement may be terminated by you by notice to the Sellers (a)
at any time prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to Option Shares) if any of the following
has occurred: (i) since the respective dates as of which information is given in
the Registration Statement, the General Disclosure Package and the Prospectus,
any material adverse change or any development involving a prospective material
adverse change in or affecting the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or prospects of
the Company and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency or other national or international
calamity or crisis (including, without limitation, an act of terrorism) if the
effect of such outbreak, escalation, declaration, emergency, calamity or crisis
on the financial markets of the United States would, in your judgment,
materially impair the investment quality of the Securities, or (iii) any change
in economic or political conditions if the effect of such change on the
financial markets of the United States would, in your judgment, materially
impair the investment quality of the Securities, (iv) suspension of trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the Nasdaq Global Market or limitation on prices (other than limitations on
hours or numbers of days of trading) for securities on any such Exchanges, (v)
the enactment, publication, decree or other promulgation of any statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects or may materially and adversely
affect the business or operations of the Company, (vi) the declaration of a
banking moratorium by United States or New York State authorities, (vii) any
downgrading, or placement on any watch list for possible downgrading, in the
rating of any of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act); (viii) the suspension of trading of the Company's common stock by the
Nasdaq Global Market, the Commission, or any other governmental authority or,
(ix) the taking of any action by any governmental body or agency in respect of
its monetary or fiscal affairs which in your opinion has a material adverse
effect on the securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company and the Selling Stockholders and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
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13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company, the Selling Stockholders and the Underwriters acknowledge
and agree that the only information furnished or to be furnished by any
Underwriter to the Company for inclusion in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
consists of the information set forth in the second, tenth and eleventh
paragraphs under the caption "Underwriting" in the Prospectus.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers or any Selling Stockholder or controlling person
thereof, as the case may be, and (c) delivery of and payment for the Shares
under this Agreement.
The Company and the Selling Stockholders acknowledge and agree that
each Underwriter in providing investment banking services to the Company and the
Selling Stockholders in connection with the offering, including in acting
pursuant to the terms of this Agreement, has acted and is acting as an
independent contractor and not as a fiduciary and the Company and the Selling
Stockholders do not intend such Underwriter to act in any capacity other than as
an independent contractor, including as a fiduciary or in any other position of
higher trust.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the law of the State of New York, including, without limitation, Section 5-1401
of the New York General Obligations Law.
The Underwriters, on the one hand, and the Company (on its own behalf
and, to the extent permitted by law, on behalf of its stockholders) and the
Selling Stockholders, on the other hand, waive any right to trial by jury in any
action, claim, suit or proceeding with respect to your engagement as underwriter
or your role in connection herewith.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Selling Stockholders, the
Company and the several Underwriters in accordance with its terms.
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Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
COLOR KINETICS INCORPORATED
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Selling Stockholders listed on
Schedule II
By /s/ Xxxxxxx X. Xxxx
-------------------------------------
Attorney-in-Fact
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
CIBC WORLD MARKETS CORP.
THINKEQUITY PARTNERS LLC
CANACCORD XXXXX INC.
As Representatives of the several
Underwriters listed on Schedule I
By: Deutsche Bank Securities Inc.
By /s/ Xxx Xxxxxxxx
----------------------------------
Authorized Officer
By /s/ Xxxxx Xxxxxx
----------------------------------
Authorized Officer
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SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
Deutsche Bank Securities Inc. 1,912,770
CIBC World Markets Corp. 757,890
ThinkEquity Partners LLC 541,350
Canaccord Xxxxx Inc. 396,990
---------
Total 3,609,000
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SCHEDULE II
SCHEDULE OF SELLING STOCKHOLDERS
Number of Firm Shares
Selling Stockholder to be Sold
------------------- ---------------------
Cree, Inc. 575,000
Xxxxxx X. Xxxxxxx 275,000
Xxxx X. Lys 225,000
Xxxxxx X. Xxxxxx 192,000
Xxxx X. Xxxxx 190,000
Xxxxxxx X. Xxxx 65,000
Xxxxx X. Xxxxxxx 40,000
Xxxxx X. Xxxxxxx 20,000
Xxxxxxxxx Xxxxxx 15,000
Xxxxxx Xxxxxx and Xxxx Xxxxxx Foundation 12,000
---------
Total 1,609,000
---------
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SCHEDULE III
SCHEDULE OF OPTION SHARES
Maximum Number Number of
of Option Shares Option Shares
Name of Seller to be Sold Entitled to Priority (1)
-------------- ---------------- ------------------------
Cree, Inc. 356,275 325,000
Xxxx X. Lys 115,000 --
Xxxxxx X. Xxxxxx 70,075
-------
Total 541,350
(1) It is understood that in the event of any partial exercise by the
Underwriters of the overallotment option, the 325,000 Option Shares to be
offered for the account of Cree, Inc. shall be entitled to priority and
shall be purchased first, and only if the aggregate number of Option Shares
as to which the overallotment option has been exercised exceeds 325,000
shall any Option Shares be purchased from any other Selling Stockholder.
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SCHEDULE IV
Pricing information to be conveyed orally prior to contract of sale:
- Price to public - $19.00
- Underwriting Discount - $1.045
- Number of shares sold by the Company - 2,000,000
- Number of shares sold by the selling stockholders - 1,609,000
- Proceeds, before expenses, to the Company - $35,910,000
- Proceeds, before expenses, to the selling stockholders - $28,889,595
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SCHEDULE V
Issuer Free Writing Prospectus, if any, to be included in the General Disclosure
Package: None
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EXHIBIT A
LOCK-UP AGREEMENT
October __, 2006
Color Kinetics Incorporated
Deutsche Bank Securities Inc.
As Representative of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that Deutsche Bank Securities Inc., as
representative (the "Representative") of the several underwriters (the
"Underwriters"), proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with Color Kinetics Incorporated (the "Company"),
providing for the public offering by the Underwriters, including the
Representative, of common stock, par value $0.001 per share (the "Common
Stock"), of the Company and certain selling shareholders (the "Public
Offering").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
agrees that, without the prior written consent of the Representative, the
undersigned will not, directly or indirectly, offer, sell, pledge, contract to
sell (including any short sale), grant any option to purchase or otherwise
dispose of any shares of Common Stock (including, without limitation, shares of
Common Stock of the Company which may be deemed to be beneficially owned by the
undersigned on the date hereof in accordance with the rules and regulations of
the Securities and Exchange Commission, shares of Common Stock which may be
issued upon exercise of a stock option or warrant and any other security
convertible into or exchangeable for Common Stock) or enter into any Hedging
Transaction (as defined below) relating to the Common Stock (each of the
foregoing referred to as a "Disposition") during the period specified in the
following paragraph (the "Lock-Up Period"). The foregoing restriction is
expressly intended to preclude the undersigned from engaging in any Hedging
Transaction or other transaction which is designed to or reasonably expected to
lead to or result in a Disposition during the Lock-Up Period even if the
securities would be disposed of by someone other than the
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undersigned. "Hedging Transaction" means any short sale (whether or not against
the box) or any purchase, sale or grant of any right (including, without
limitation, any put or call option) with respect to any security (other than a
broad-based market basket or index) that includes, relates to or derives any
significant part of its value from the Common Stock.
The initial Lock-Up Period will commence on the date hereof and continue
until, and include, the date that is 90 days after the date of the final
prospectus relating to the Public Offering (the "Initial Lock-Up Period");
provided, however, that if (1) during the last 17 days of the Initial Lock-Up
Period, (A) the Company releases earnings results, or (B) the Company discloses,
through a press release or the filing of a Current Report on Form 8-K, the
occurrence of a material event relating to the Company, or (2) prior to the
expiration of the Initial Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period following the last day of the
Initial Lock-Up Period, then in each case the Lock-Up Period will be extended
until the expiration of the 18-day period beginning on the date of the release
of the earnings results or the announcement of material news or the occurrence
of a material event relating to the Company, as the case may be, unless the
Representative waives, in writing, such extension.
Notwithstanding the foregoing, the undersigned may transfer (a) shares of
Common Stock acquired in open market transactions by the undersigned after
pricing of the Public Offering, (b) shares of Common Stock in connection with
the net exercise of stock options or warrants held by the undersigned (provided
that any such shares issued upon net exercise of stock options or warrants shall
continue to be subject to the applicable provisions of this agreement), and (c)
any or all of the undersigned's shares of Common Stock or other Company
securities if the transfer is (i) by gift, will or intestacy, (ii) to his or her
family for estate planning purposes (including family trusts, family
corporations, family limited liability companies or family partnerships, the
direct or indirect beneficiaries of which are the undersigned and his or her
immediate family) or (iii) by distribution to partners, members or shareholders
of the undersigned; provided, however, that in the case of a transfer pursuant
to clause (c) above, it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding the
securities subject to the provisions of this Lock-Up Agreement.
The undersigned agrees that the Company may, and that the undersigned will,
(i) with respect to any shares of Common Stock or other Company securities for
which the undersigned is the record holder, cause the transfer agent for the
Company to note stop transfer instructions with respect to such securities on
the transfer books and records of the Company and (ii) with respect to any
shares of Common Stock or other Company securities for which the undersigned is
the beneficial holder but not the record holder, cause the record holder of such
securities to cause the transfer agent for the Company to note stop transfer
instructions with respect to such securities on the transfer books and records
of the Company.
In addition, the undersigned hereby waives any and all notice requirements
and rights with respect to registration of securities pursuant to any agreement,
understanding or otherwise setting forth the terms of any security of the
Company held by the undersigned, including any registration
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rights agreement to which the undersigned and the Company may be party; provided
that such waiver shall apply only to the proposed Public Offering, and any other
action taken by the Company in connection with the proposed Public Offering.
The undersigned hereby agrees that, to the extent that the terms of this
Lock-Up Agreement conflict with or are in any way inconsistent with any
registration rights agreement to which the undersigned and the Company may be a
party, this Lock-Up Agreement supersedes such registration rights agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. All authority
herein conferred or agreed to be conferred shall survive the death or incapacity
of the undersigned and any obligations of the undersigned shall be binding upon
the heirs, personal representatives, successors and assigns of the undersigned.
Notwithstanding anything herein to the contrary, if the Company notifies
the Representative in writing that it does not intend to proceed with the Public
Offering, if the Underwriting Agreement does not become effective by 11:59 p.m.,
Boston, Massachusetts time, on March 31, 2007, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall terminate or
be terminated prior to the payment for and delivery of the Shares, then this
agreement shall be of no further force or effect.
Signature:
-----------------------------
Print Name:
----------------------------
Number of shares owned subject to
warrants, options or convertible
securities: Certificate numbers:
------------------------------------- ----------------------------------------
------------------------------------- ----------------------------------------
------------------------------------- ----------------------------------------
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