GOLFSMITH INTERNATIONAL HOLDINGS, INC. (a Delaware corporation) l Shares of Common Stock PURCHASE AGREEMENT
Exhibit 1.1
GOLFSMITH INTERNATIONAL HOLDINGS, INC.
(a Delaware corporation)
l Shares of Common Stock
Dated: May l, 2006
GOLFSMITH INTERNATIONAL HOLDINGS, INC.
(a Delaware corporation)
l Shares of Common Stock
(Par Value $l Per Share)
May l, 2006
XXXXXXX XXXXX & CO. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
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X.X.
Xxxxxx Securities Inc. as Representatives of the several Underwriters |
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x/x
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Xxxxxxx Xxxxx & Xx. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Golfsmith International Holdings, Inc., a Delaware corporation (the “Company”), confirms its
agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx
Xxxxx”), X.X. Xxxxxx Securities Inc. (“X.X. Xxxxxx”) and each of the other Underwriters named in
Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx and X.X. Xxxxxx
are acting as representatives (in such capacity, the “Representatives”), with respect to (i) the
sale by the Company, and the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $0.001 per share, of the Company (“Common
Stock”) set forth in Schedule A and (ii) the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any
part of l additional shares of Common Stock to cover overallotments, if any. The aforesaid
l shares of Common Stock (the “Initial Securities”) to be purchased by the Underwriters and
all or any part of the l shares of Common Stock subject to the option described in Section
2(b) hereof (the “Option Securities”) are hereinafter called, collectively, the “Securities.”
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Representatives deem advisable after this Agreement has been executed and
delivered.
The Company and the Underwriters agree that up to l shares of the Securities to be
purchased by the Underwriters (the “Reserved Securities”) shall be reserved for sale by the
Underwriters to certain eligible employees and persons having business relationships with the
Company (the
“Invitees”), as part of the distribution of the Securities by the Underwriters, subject to the
terms of this Agreement, the applicable rules, regulations and interpretations of the National
Association of Securities Dealers, Inc. (the “NASD”) and all other applicable laws, rules and
regulations. To the extent that such Reserved Securities are not orally confirmed for purchase by
Invitees by the end of the first business day after the date of this Agreement, such Reserved
Securities may be offered to the public as part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1 (No. 333-132414), including the related preliminary prospectus
or prospectuses, covering the registration of the Securities under the Securities Act of 1933, as
amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company
will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of
the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and
paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. The information included in
such prospectus that was omitted from such registration statement at the time it became effective
but that is deemed to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as “Rule 430A Information.” Each prospectus
used before such registration statement became effective, and any prospectus that omitted the Rule
430A Information, that was used after such effectiveness and prior to the execution and delivery of
this Agreement, is herein called a “preliminary prospectus.” Such registration statement,
including the amendments thereto, the exhibits and any schedules thereto, at the time it became
effective, and including the Rule 430A Information, is herein called the “Registration Statement.”
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the “Rule 462(b) Registration Statement,” and after such filing the term
“Registration Statement” shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).
SECTION 1. Representations and Warranties.
(i) Compliance with Registration Requirements. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto
has been declared effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings for such purpose have
been instituted or are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and at the Closing Time
(and, if any Option Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act
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Regulations and did not, as of its respective date, and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and the Prospectus, any
preliminary prospectus and any supplement thereto or prospectus wrapper prepared in
connection therewith, at their respective times of issuance and at the Closing Time,
complied and will comply in all material respects with any applicable laws or regulations of
foreign jurisdictions in which the Prospectus and such preliminary prospectus, as amended or
supplemented, if applicable, are distributed in connection with the offer and sale of
Reserved Securities. Neither the Prospectus nor any amendments or supplements thereto
(including any prospectus wrapper), at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), included or will include an 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.
As of the Applicable Time (as defined below), neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below), including the information included on Schedule E
hereto issued at or prior to the Applicable Time and the Statutory Prospectus (as defined
below) as of the Applicable Time, all considered together (collectively, the “General
Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus,
when considered together with the General Disclosure Package, included any untrue statement
of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means l:00 [a/p]m (Eastern time) on [DATE] or such other time
as agreed by the Company and Xxxxxxx Xxxxx.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be
filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form required to be retained in the Company’s
records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors (other than a Bona Fide
Electronic Road Show (as defined below)), as evidenced by its being specified in Schedule D
hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein.
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 Securities or until any earlier
date that
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the issuer notified or notifies Xxxxxxx Xxxxx as described in Section 3(e), 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, and any
preliminary or other prospectus deemed to be a part thereof that has not been superseded or
modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, any preliminary prospectus or Statutory
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or the information included
on Schedule E hereto made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Xxxxxxx Xxxxx expressly for use therein.
Each preliminary prospectus (including the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto) complied when so filed in
all material respects with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
At the time of filing the Registration Statement, any 462(b) Registration Statement and
any post-effective amendments thereto and at the date hereof, the Company was not and is not
an “ineligible issuer,” as defined in Rule 405 of the 1933 Act Regulations.
(ii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are independent
registered public accountants as required by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited financial statements
included in the Registration Statement. The pro forma financial statements and the related
notes thereto included in the Registration Statement, the General Disclosure Package and the
Prospectus present fairly the information shown therein, have been prepared in accordance
with the Commission’s rules and guidelines with respect to pro forma financial statements and
have been properly compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. All disclosures contained
in the Registration Statement, the General Disclosure Package or the Prospectus regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of the
Commission) comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the
1933 Act, to the extent applicable.
(iv) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change, or
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any development that could reasonably be expected to have a material adverse change, in
the condition, financial or otherwise, or in the earnings or business affairs of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the ordinary
course of business (a “Material Adverse Effect”), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Delaware
and has corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the Statutory Prospectus and the Prospectus and to enter into
and perform its obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each “significant subsidiary” of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each, a “Subsidiary” and,
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, has
corporate power and authority to own, lease and operate its properties and to conduct its
business as described in the Statutory Prospectus and the Prospectus and is duly qualified as
a foreign corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and
is owned by the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none
of the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary. The only subsidiaries of the
Company are the subsidiaries listed on Exhibit 21 to the Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled “Actual” under the
caption “Capitalization” (except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options referred to in
the Prospectus). The shares of issued and outstanding capital stock have been duly
authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock was issued in violation of the preemptive or other similar rights of
any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) Authorization and Description of Securities. The Securities to be
purchased by the Underwriters from the Company have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the
Company
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pursuant to this Agreement against payment of the consideration set forth herein, will
be validly issued and fully paid and non-assessable; the Common Stock conforms in all
material respects to all statements relating thereto contained in the Statutory Prospectus
and the Prospectus and such description conforms in all material respects to the rights set
forth in the instruments defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder; and the issuance of the Securities is
not subject to the preemptive or other similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults
that would not reasonably be expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the sale of the Securities as
described in the Statutory Prospectus and the Prospectus under the caption “Use of Proceeds”)
and compliance by the Company with its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or
Repayment Events or liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary, or reasonably be expected to result in
any violation of any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets, properties or
operations. As used herein, a “Repayment Event” means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
Exhibit A to the Opinion of
White & Case LLP, required by Section 5(b) of this Agreement, is a complete list of all of
the Agreements and Instruments that are material to the Company and its subsidiaries.
(xi) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the employees of any of
its or any subsidiary’s principal suppliers, manufacturers, customers or contractors, which,
in either case, would reasonably be expected to result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which could reasonably be expected to result
in a Material Adverse Effect, or which could reasonably be expected to materially and
adversely affect the properties or assets
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thereof or the consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder.
(xiii) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement or the Prospectus or to be filed as
exhibits thereto which have not been so described and filed as required.
(xiv) Possession of Intellectual Property. To the Company’s knowledge, the
Company and its subsidiaries own or possess, or believe that they can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names or other
intellectual property necessary to carry on the business now operated by them (collectively,
“Intellectual Property”), and neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or circumstances which would
reasonably be expected to render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would reasonably be expected to result in a Material
Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this Agreement,
except (i) such as have been already obtained or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws and (ii) such as have been obtained under the
laws and regulations of jurisdictions outside the United States in which the Reserved
Securities are offered.
(xvi) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xvii) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by them, except
where the failure so to possess would not, singly or in the aggregate, reasonably be expected
to result in a Material Adverse Effect; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would not reasonably be expected to
result in a Material Adverse Effect.
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(xviii) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its subsidiaries and good
title to all other properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Statutory Prospectus and the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company or any of its
subsidiaries; and all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Statutory Prospectus and the Prospectus, are
in full force and effect, and neither the Company nor any subsidiary has any notice of any
material claim of any sort that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or such subsidiary to the continued possession of
the leased or subleased premises under any such lease or sublease.
(xix) Environmental Laws. Except as described in the Registration Statement and
except as would not, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation
of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing materials or mold
(collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law against the Company
or any of its subsidiaries and (D) there are no events or circumstances known to the Company
that would reasonably be expected to form the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xx) Registration Rights. There are no persons with registration rights or
other similar rights to have any securities registered pursuant to the Registration Statement
or, except as described in the Registration Statement, otherwise registered by the Company
under the 1933 Act.
(xxi) Accounting Controls. The Company and each of its subsidiaries maintain a
system of internal accounting controls (as defined in Rule 13a-15(f) of the Exchange Act)
sufficient to provide reasonable assurances that (A) transactions are executed in accordance
with management’s general or specific authorization; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) access to assets is permitted only in accordance with
management’s general or specific authorization; and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. Except as described in the Statutory Prospectus and
the Prospectus, since the end of the Company’s most recent audited fiscal year, there has
been (1) no material weakness in the
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Company’s internal control over financial reporting (whether or not remediated) and (2)
no change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over
financial reporting.
(xxii) Compliance with the Xxxxxxxx-Xxxxx Act. The Company has taken all
necessary actions to ensure that, upon the effectiveness of the Registration Statement, it
will be in compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all rules and
regulations promulgated thereunder or implementing the provisions thereof (the
“Xxxxxxxx-Xxxxx Act”) that are then in effect and which the Company is required to comply
with as of the effectiveness of the Registration Statement, and is actively taking steps to
ensure that it will be in compliance with other provisions of the Xxxxxxxx-Xxxxx Act not
currently in effect, upon the effectiveness of such provisions, or which will become
applicable to the Company at all times after the effectiveness of the Registration Statement.
(xxiii) Payment of Taxes. All United States federal income tax returns of the
Company and its subsidiaries required by law to be filed on or prior to the date hereof
(taking into account any applicable extension of time within which to file) have been filed,
and all taxes shown by such returns or otherwise assessed, which are due and payable, have
been paid, except assessments against which appeals or contests have been or will be promptly
taken or commenced and as to which adequate reserves have been provided. The Company and its
subsidiaries have filed all other tax returns that are required to have been filed by them
pursuant to applicable foreign, state, local or other law except insofar as the failure to
file such returns would not result in a Material Adverse Effect, and has paid all taxes shown
on such filed returns that are due pursuant to such filed returns or taxes due pursuant to
any assessment received by the Company and its subsidiaries relating to any such returns,
except for such taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. The charges, accruals and reserves on the books of the Company
in respect of any income and corporation tax liability for any years not finally determined
are adequate to meet any assessments or re-assessments for additional income tax for any
years not finally determined, except to the extent of any inadequacy that would not result in
a Material Adverse Effect.
(xxiv) Insurance. The Company and its subsidiaries carry or are entitled to the
benefits of insurance, with reputable insurers, in such amounts and covering such risks as is
generally maintained by companies engaged in the same or similar business, and all such
insurance is in full force and effect. The Company has no reason to believe that it or any
subsidiary will not be able (A) to renew its existing insurance coverage as and when such
policies expire or (B) to obtain comparable coverage from similar institutions as may be
necessary or appropriate to conduct its business as now conducted and at a cost that would
not result in a material adverse change. Neither of the Company nor any subsidiary has been
denied any insurance coverage which it has sought or for which it has applied.
(xxv) Statistical and Market-Related Data. Any statistical and market-related
data included in the Registration Statement and the Statutory Prospectus and the Prospectus
are based on or derived from sources that the Company believes to be reliable and accurate in
all material respects, and the Company has obtained the written consent to the use of such
data from such sources to the extent such consent is required for the inclusion of such data
therein.
(xxvi) Foreign Corrupt Practices Act. Neither the Company nor, to the knowledge
of the Company, any director, officer, agent, employee, affiliate or other person acting on
behalf of the Company or any of its subsidiaries 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
9
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 and, to the knowledge of the Company, its affiliates 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.
(xxvii) Money Laundering Laws. The operations of the Company are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(xxviii) OFAC. Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or person acting on behalf 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 knowingly 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) Investment Company Act. The Company is not required, and upon the
issuance and sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in any preliminary prospectus and the Prospectus will not be
required, to register as an “investment company” under the Investment Company Act of 1940, as
amended (the “1940 Act”).
SECTION 2. Sale and Delivery to Underwriters; Closing.
10
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Company, on each Date of Delivery as specified in the notice
from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and
the Option Securities, if any, which it has agreed to purchase. Xxxxxxx Xxxxx, individually and
not as representative of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names as the
Representatives may request in writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later
11
than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
12
Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
13
14
SECTION 4. Payment of Expenses.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company contained in Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the following further conditions:
15
424(b)(8) or a post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A.
16
(i) Officers’ Certificate. A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and of the chief financial or chief accounting
officer of the Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of White & Case
LLP, counsel for the Company, dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iv) Opinion of General Counsel of Company. The favorable opinion of Xxxxx
Xxxx, Esq., general counsel of the Company, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(vi) Opinion of Counsel for Underwriters. The favorable opinion of Shearman &
Sterling LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(d) hereof.
(vii) Bring-down Comfort Letter. A letter from Ernst & Young LLP, an
independent registered public accounting firm, in form and substance satisfactory to the
Representatives and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Representatives pursuant to Section 5(f) hereof,
except that the “specified date” in the letter furnished pursuant to this paragraph shall be
a date not more than five days prior to such Date of Delivery.
17
SECTION 6. Indemnification.
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430A
Information or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any such untrue statement or
omission or any such alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through Xxxxxxx Xxxxx
expressly for use in the Registration Statement (or any amendment thereto), including the Rule 430A
Information, or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or any amendment or supplement thereto).
18
19
Reserved Securities which have been orally confirmed for purchase by any Invitee by the end of
the first business day after the date of the Agreement; or (iv) related to, or arising out of or in
connection with, the offering of the Reserved Securities.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then in lieu of
indemnifying such Indemnified Party thereunder each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand, and the Underwriters on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the Company on
the one hand, and of the Underwriters, on the other hand, in connection with the statements or
omissions, or in connection with any violation of the nature referred to in Section 6(e) hereof,
which resulted in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand, and the Underwriters on the
other hand, in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus bear to the aggregate initial public offering price of the Securities as set forth
on the cover of the Prospectus.
The relative fault of the Company on the one hand, and the Underwriters on the other hand,
shall be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission,
or any violation of the nature referred to in Section 6(e) hereof.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 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 7. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above in this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
20
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of any Underwriter or its
Affiliates or selling agents, any person controlling any Underwriter, its officers or directors or
any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Prospectus
or General Disclosure Package, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially limited by the Commission
or the Nasdaq National Market, or if trading generally on the American Stock Exchange or the New
York Stock Exchange or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the Commission, the NASD or any
other governmental authority, or (iv) a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States or with respect to Clearstream or
Euroclear systems in Europe, or (v) if a banking moratorium has been declared by either Federal or
New York authorities.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the Securities which it
or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the
Representatives shall have the right,
21
within 24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Representatives shall not have completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting obligations
of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to be
purchased on such date, this Agreement or, with respect to any Date of Delivery which occurs
after the Closing Time, the obligation of the Underwriters to purchase and of the Company to
sell the Option Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either the Representatives or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a period
not exceeding seven days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter”
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated hereby,
the Company (and each employee, representative or other agent of the Company) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed
U.S. federal income, state or local tax treatment of the transactions contemplated hereby, and the
term “tax structure” includes any fact that may be relevant to understanding the purported or
claimed federal income tax treatment of the transactions contemplated hereby.
SECTION 12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to the Representatives, c/o
Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention General Counsel, with a copy to Shearman & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx,
00
XX 00000, attention of Xxxxxxx Xxxxxxxxx; notices to the Company shall be directed to it at
00000 X. XX-00, Xxxxxx, XX 00000-0000, attention of General Counsel, with a copy to White & Case
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, attention Xxxx Xxxxxx.
SECTION 13. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering contemplated
hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company, or its respective stockholders,
creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory
or fiduciary responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of each of the Company, and (e)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering contemplated hereby and the Company has consulted its own respective legal,
accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 14. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters, the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and their respective
successors, and said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 16. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 18. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
23
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters and the Company in accordance with its
terms.
Very truly yours, | ||||||
GOLFSMITH INTERNATIONAL HOLDINGS, INC. | ||||||
By | ||||||
Title: | ||||||
CONFIRMED AND ACCEPTED, as of the date first above written: |
||||||
XXXXXXX XXXXX & CO. X.X. XXXXXX SECURITIES INC. |
||||||
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX | ||||||
INCORPORATED | ||||||
By |
||||||
Authorized Signatory | ||||||
By: X.X. XXXXXX SECURITIES INC. | ||||||
By |
||||||
Authorized Signatory |
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
24
SCHEDULE A
Number of | ||||
Name of Underwriter | Initial Securities | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
||||
X.X. Xxxxxx Securities Inc. |
||||
Lazard Capital Markets LLC |
||||
Total |
l | |||
Sch A - 1
SCHEDULE B
Golfsmith International Holdings, Inc.
Shares of Common Stock
(Par Value $l Per Share)
Shares of Common Stock
(Par Value $l Per Share)
1. The initial public offering price per share for the Securities, determined as provided in said
Section 2, shall be $l.
2. The purchase price per share for the Securities to be paid by the several Underwriters shall be
$l, being an amount equal to the initial public offering price set forth above less $l
per share; provided that the purchase price per share for any Option Securities purchased upon the
exercise of the overallotment option described in Section 2(b) shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company and payable on the Initial
Securities but not payable on the Option Securities.
Sch B - 1
SCHEDULE C
List of persons and entities subject to lock-up
Atlantic
Equity Partners III, L.P.
Carl Xxxx
Xxxxxxxx Xxxx
Xxxxx X.
Xxxxxxxx
Xxxxxxxx
Xxxxx
Xxxxxxx
Xxxxx
Xxxx Xxxxxx
Xxxxx
Xxxxxxxxx
Xxxxxxx
Xxxxx
Xxxx Xxxxxx
Xxxxxxx
Xxxxx
Xxxxx Xxxx
Xxxxxxx
Xxxx
Xxxxxxx
Xxxxxx
Xxxxx
Xxxxxx
Xxxx Xxxxxx
Xxxxxx X.
Xxxxx
Xxxxx Xxxx
Xxxxxxxx
Xxxxxx
Sch C - 1
SCHEDULE D
[SPECIFY EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS]
Sch E - 1
SCHEDULE E
Sch E - 1
Exhibit A
FORM OF OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
TO BE DELIVERED PURSUANT TO SECTION 5(b)
[TO BE PROVIDED]
A-1
Exhibit B
FORM OF OPINION OF GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(c)
TO BE DELIVERED PURSUANT TO SECTION 5(c)
[TO BE PROVIDED]
X-0
Xxxxxxx X
x, 0000
XXXXXXX XXXXX & CO. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
||
X.X. XXXXXX SECURITIES INC. | ||
x/x
|
Xxxxxxx Xxxxx & Xx. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 0 Xxxxx Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
Underwriters to be named in the
within-mentioned Purchase Agreement
Re: Proposed Public Offering by Golfsmith International Holdings, Inc.
Dear Sirs:
The undersigned, a stockholder of Golfsmith International Holdings, Inc., a Delaware
corporation (the “Company”), understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (“Xxxxxxx Xxxxx”), X.X. Xxxxxx Securities Inc. (“X.X. Xxxxxx”) and Lazard
Capital Markets LLC propose to enter into a Purchase Agreement (the “Purchase Agreement”) with the
Company providing for the initial public offering (the “Offering”) of shares (the “Securities”) of
the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the
benefit that such an offering will confer upon the undersigned as a stockholder of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each underwriter to be named in the Purchase Agreement
that, during a period of 180 days from the date of the Purchase Agreement, the undersigned will
not, without the prior written consent of Xxxxxxx Xxxxx and X.X. Xxxxxx, directly or indirectly,
(i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any shares of the Company’s Common Stock or any securities convertible into
or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires the power of
disposition, or file, or cause to be filed, any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing (collectively, the “Lock-Up Securities”) or
(ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities,
whether any such swap or transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise.
The foregoing restrictions shall not apply to (a) transactions relating to shares of Common
Stock Shares or other securities acquired in open market transactions after the completion of the
Offering, unless such transaction would result in the filing of any reports pursuant to Section 16
of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder, (b) the exercise of stock options granted pursuant to the Company’s equity incentive
plans or otherwise
Exhibit C-1
outstanding on the date hereof, provided that it shall apply to any shares of Common Stock
issued upon such exercise, (c) the establishment of any contract, instruction or plan that
satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under the Securities Exchange Act of
1934 (a “Plan”) provided that no sales of shares of Common Stock or securities convertible into, or
exchangeable or exercisable for, shares of Common Stock, shall be made pursuant to a Plan prior to
the expiration of the 180-day lock-up period (as the same may be extended pursuant to the
provisions hereof), (d) transfers of shares of Common Stock or any security convertible into, or
exercisable for, shares of Common Stock as a bona fide gift or gifts (which shall include, in the
case of an individual, a gift occurring at death by will or intestacy, and transfers during
lifetime to a trust or other entity for bona fide estate planning or tax purposes), (e)
distributions of shares of Common Stock or any security convertible into, or exercisable for,
shares of Common Stock to limited partners or shareholders of the undersigned or (f) transfers to
an entity controlling, controlled by or under common control with, the undersigned; provided that
in the case of any transfer or distribution pursuant to clause (d), (e) or (f), each donee,
distributee or other transferee shall sign and deliver a letter substantially in the form of this
letter.
Notwithstanding the foregoing, if:
(1) during the last 17 days of the 180-day lock-up period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the 180-day lock-up period, the Company announces that it will
release earnings results or becomes aware that material news or a material event will occur during
the 16-day period beginning on the last day of the 180-day lock-up period,
the restrictions imposed by this lock-up agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event, as applicable, unless Xxxxxxx Xxxxx waives, in writing, such
extension.
The undersigned hereby acknowledges and agrees that written notice of any extension of the
180-day lock-up period pursuant to the previous paragraph will be delivered by Xxxxxxx Xxxxx and/or
X.X. Xxxxxx to the Company (in accordance with Section 12 of the Purchase Agreement) and that any
such notice properly delivered will be deemed to have been given to, and received by, the
undersigned. The undersigned further agrees that, prior to engaging in any transaction or taking
any other action that is subject to the terms of this lock-up agreement during the period from the
date of this lock-up agreement to and including the 34th day following the expiration of
the initial 180-day lock-up period, it will give notice thereof to the Company and will not
consummate such transaction or take any such action unless it has received written confirmation
from the Company that the 180-day lock-up period (as may have been extended pursuant to the
previous paragraph) has expired.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in
compliance with the foregoing restrictions.
Exhibit C-2
If (i) the Company notifies you in writing that it does not intend to proceed with the
Offering, (ii) the registration statement filed with the Commission with respect to the Offering is
withdrawn, (iii) for any reason the Purchase Agreement shall be terminated prior to the closing of
the Offering, or (iv) the Offering is not completed by July 1, 2006, this Lock-Up Agreement shall
be terminated and the undersigned shall be released from its obligations hereunder.
Very truly yours, | ||||
Signature: | ||||
Print Name: | ||||
Exhibit C-3