Exhibit 1.1
MICROTUNE, INC.
7,000,000 Shares of Common Stock
Underwriting Agreement
December 14, 2001
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
XX Xxxxx Securities Corporation
Prudential Securities Incorporated
As Representatives of several underwriters
listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Microtune, Inc., a Delaware corporation (the "Company"), hereby proposes to
issue and sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of 5,000,000 shares of Common Stock, par value
$0.001 per share of the Company (the "Stock"), and the stockholders of the
Company named in Schedule II hereto (the "Selling Stockholders") propose to sell
to the Underwriters an aggregate of 2,000,000 shares and, at the election of the
Underwriters, up to 1,050,000 additional shares of Stock. The aggregate of
7,000,000 shares to be sold by the Company and the Selling Stockholders is
herein called the "Underwritten Shares" and the aggregate of 1,050,000
additional shares to be sold by the Selling Stockholders at the election of the
Underwriters, and for the sole purpose of covering over-allotments, is herein
called the "Option Shares". The Underwritten Shares and the Option Shares are
herein referred to as the "Shares."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, File No. 333-67850, including a
prospectus, relating to the Shares, among other securities, and has filed with,
or transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Shares pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this
Agreement. The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus" means
a preliminary prospectus supplement specifically relating to the Shares,
together with the Basic Prospectus. As used herein, the terms "Basic Prospectus,
"Prospectus" and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Registration Statement and the Prospectus that
are filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The Company and each of the Selling Stockholders hereby agree with the
Underwriters as follows:
1. The Company and each of the Selling Stockholders agree, severally and
not jointly, to sell the Underwritten Shares to the several Underwriters as
hereinafter provided, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company and each of the Selling Stockholders at a purchase price per share of
$21.85 (the "Purchase Price") the number of Underwritten Shares (to be adjusted
by you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Underwritten Shares to be sold by the Company and each of
the Selling Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Underwritten Shares to be purchased by such Underwriter as set forth opposite
the name of such Underwriter in Schedule I hereto and the denominator of which
is the aggregate number of Underwritten Shares to be purchased by all the
Underwriters from the Company and all the Selling Stockholders hereunder.
In addition, each of the Selling Stockholders, as and to the extent
indicated in Schedule II hereto agrees to sell the Option Shares to the several
Underwriters and the Underwriters shall have the option to purchase at their
election up to 1,050,000 Option Shares for the sole purpose of covering
over-allotments in the sale of the Underwritten Shares. The Underwriters, on the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, shall have the option to purchase, severally and
not jointly, from each of the Selling Stockholders at the Purchase Price that
portion of the number of Option Shares as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Option Shares by a fraction the
numerator of which is the maximum number of Option Shares which such Underwriter
is entitled to purchase and the denominator of which is the maximum number of
Option Shares that all of the Underwriters are entitled to purchase hereunder,
for the sole purpose of covering over-allotments (if any) in the sale of the
Underwritten Shares by the several Underwriters. Any such election to purchase
Option Shares shall be made in proportion to the maximum number of Option Shares
to be sold by each Selling Stockholder as set forth in Schedule II hereto.
The Underwriters may exercise the option to purchase the Option Shares at
any time (but not more than once) on or before the thirtieth day following the
date of this Agreement, by
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written notice from the Representatives to the Attorney-in-Fact (as defined
below). Such notice shall set forth the aggregate number of Option Shares as to
which the option is being exercised and the date and time when the Option Shares
are to be delivered and paid for which may be the same date and time as the
Closing Date (as hereinafter defined) but shall not be earlier than the Closing
Date nor later than the tenth full Business Day (as hereinafter defined) after
the date of such notice (unless such time and date are postponed in accordance
with the provisions of Section 9 hereof). Any such notice shall be given at
least two Business Days prior to the date and time of delivery specified
therein.
2. The Company and the Selling Stockholders understand that the
Underwriters intend (i) to make a public offering of their respective portions
of the Shares as soon after (A) the Registration Statement has become effective
and (B) the parties hereto have executed and delivered this Agreement, as in the
judgment of the Representatives is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified to the Representatives by the Company
with regard to payment to the Company and by the Attorneys-in-Fact (as defined
below), or any of them, with regard to payment to the Selling Stockholders in
the case of the Underwritten Shares, at 10:00 a.m. EST on December 19, 2001, or
at such other time on the same or such other date, not later than the next
Business Day thereafter, as the Representatives and the Company and
Attorneys-in-Fact may agree upon in writing or, in the case of the Option
Shares, on the date and time specified by the Representatives in the written
notice of the Underwriters' election to purchase such Option Shares. The time
and date of such payment for the Underwritten Shares is referred to herein as
the "Closing Date" and the time and date for such payment for the Option Shares,
if other than the Closing Date, is referred to herein as the "Additional Closing
Date." As used herein, the term "Business Day" means any day other than a day on
which banks are permitted or required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the Representatives shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Shares duly paid by the Company or the Selling
Stockholders, as the case may be. The certificates for the Shares will be made
available for inspection and packaging by the Representatives at the office of
X.X. Xxxxxx Securities Inc. set forth above not later than 1:00 P.M., New York
City time, on the Business Day prior to the Closing Date or the Additional
Closing Date, as the case may be; provided, that the issuance and delivery of
the Shares shall be executed electronically on the Closing Date or Additional
Closing Date, as the case may be.
4. (A) The Company represents and warrants to each Underwriter and the
Selling Stockholders that:
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(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, and did
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,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with (i)
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein and (ii)
information included under the caption "Selling Stockholders" in the Prospectus,
which information was furnished by any Selling Stockholder or any
Attorney-in-Fact;
(b) the Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the case may be,
in all material respects with the Securities Act and do not and will not, as of
the applicable effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or supplement
thereto, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented, if
applicable, at the Closing Date or Additional Closing Date, as the case may be,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, that the
foregoing representations and warranties shall not apply to statements or
omissions in the Registration Statement or the Prospectus made in reliance upon
and in conformity with (i) information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives expressly
for use therein and (ii) information included under the caption "Selling
Stockholders" in the Prospectus, which information was furnished by any Selling
Stockholder or any Attorney-in-Fact;
(c) the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act,
and will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) the financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the Prospectus
present fairly the
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consolidated financial position of the Company and its consolidated subsidiaries
as of the dates indicated and the results of their operations and changes in
their consolidated cash flows for the periods specified; and said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and the supporting schedules included
or incorporated by reference in the Registration Statement present fairly the
information required to be stated therein; and the pro forma financial
information, and the related notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and the
Exchange Act, as applicable, and is based upon good faith estimates and
assumptions believed by the Company to be reasonable;
(e) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in the
capital stock (other than changes resulting from the exercise of employee stock
options) or long-term debt of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole (a "Material Adverse
Change"), except as set forth or contemplated in the Prospectus; and except as
set forth or contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) material to the Company and its subsidiaries
taken as a whole;
(f) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, except where the failure to qualify or have such power or
authority would not have, in the aggregate, a material adverse effect on the
Company and its subsidiaries, taken as a whole (a "Material Adverse Effect");
(g) each of the Company's subsidiaries has been duly incorporated and
is validly existing as an entity under the laws of its jurisdiction of domicile,
with power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified as a
foreign entity for the transaction of business and is in good standing under the
laws of each jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure to
qualify or have such power and authority would not, in the aggregate, have a
Material Adverse Effect; and all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued, are
fully-paid and non-assessable, and (except, in the case of foreign subsidiaries,
for directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security interests and
claims;
(h) this Agreement has been duly authorized, executed and delivered by
the Company;
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(i) the Company has an authorized capitalization as set forth in the
Prospectus and such authorized capital stock conforms as to legal matters to the
description thereof set forth in the Prospectus, and all of the outstanding
shares of capital stock of the Company (including the Shares to be sold by the
Selling Stockholders) have been duly authorized and validly issued, are
fully-paid and non-assessable and are not subject to any pre-emptive or similar
rights created by the Company or to which the Company is a party; and, except as
described in or expressly contemplated by the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive rights), warrants
or options to acquire, or instruments convertible into or exchangeable for, any
shares of capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or exchangeable securities
or any such rights, warrants or options;
(j) the Shares to be issued and sold by the Company hereunder have
been duly authorized, and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be duly issued
and will be fully paid and non-assessable and will conform to the descriptions
thereof in the Prospectus; and the issuance of such Shares is not subject to any
preemptive or similar rights;
(k) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement 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 or any of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to the Company
and its subsidiaries taken as a whole; the issue and sale of the Shares to be
sold by the Company hereunder and the performance by the Company of its
obligations under this Agreement and the consummation of the transactions
contemplated herein 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, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will any such action result
in any violation of the provisions of the Certificate of Incorporation or the
By-Laws of the Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company, its subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required for the
issue and sale of the Shares to be sold by the Company hereunder or the
consummation by the Company of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act and as may be
required under state securities or Blue Sky Laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(l) other than as set forth or contemplated in the Prospectus and as
communicated in writing to counsel for the Underwriters, there are no legal or
governmental investigations, actions, suits or proceedings pending or, to the
knowledge of the Company,
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threatened against or affecting the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the aggregate
have, or reasonably be expected to have, a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required;
(m) the Company and its subsidiaries have good and marketable title in
fee simple to all items of real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described or referred to in the
Prospectus or such as do not materially affect the value of such property and do
not interfere with the use made or proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid, existing
and enforceable leases with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or its subsidiaries;
(n) no relationship, direct or indirect, exists between or among the
Company or any or its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries
on the other hand, which is required by the Securities Act to be described in
the Registration Statement and the Prospectus which is not so described;
(o) except for the Selling Stockholders and certain former
shareholders and optionholders of Transilica, Inc., as described in the
Prospectus, no person has the right to require the Company to register any
securities for offering and sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or the issue and sale
of the Shares to be sold by the Company hereunder or, to the best knowledge of
the Company, the sale of the Shares to be sold by the Selling Stockholders
hereunder;
(p) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(q) Ernst & Young LLP, who has certified certain financial statements
of the Company and its subsidiaries, and Xxxxxx Xxxxxxxx LLP, who has certified
certain financial statements of Transilica Inc., are each independent public
accountants as required by the Securities Act;
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(r) the Company and its subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed and have paid
all taxes shown thereon and all assessments received by them or any of them to
the extent that such taxes have become due and payable and are not being
contested in good faith; and, except as disclosed in the Registration Statement
and the Prospectus, to the Company's knowledge, there is no tax deficiency which
has been or would reasonably be expected to be asserted or threatened against
the Company or any subsidiary;
(s) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that could be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Common
Stock;
(t) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as conducted as of
the date hereof, and neither the Company nor any such subsidiary has received
any actual notice of any proceeding relating to revocation or modification of
any such license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement and the
Prospectus or except where the failure to so own, possess, obtain or make, or
where such revocation or modification, would not have a Material Adverse Effect,
and each of the Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of the date
hereof;
(u) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a Material Adverse Effect;
(v) the Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a Material
Adverse Effect;
(w) each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that
is maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and its affiliates
has been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not
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limited to ERISA and the Internal Revenue Code of 1986, as amended ("Code"). No
prohibited (w) transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption. For
each such plan which is subject to the funding rules of Section 412 of the Code
or Section 302 of ERISA no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair
market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeded the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions;
(x) each of the Company and its subsidiaries owns, possesses or has
the right to use the Intellectual Property employed by it in connection with the
business conducted by it as of the date hereof. "Intellectual Property" means
all patents, trademarks, service marks, trade names, domain names, copyrights,
trade secrets, proprietary rights and processes necessary for all business as
now conducted; and
(y) none of the subsidiaries of the Company listed on Exhibit B
attached hereto are, individually or in the aggregate, material to the business,
prospects, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole.
(B) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters that:
(a) all consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement and the
Power of Attorney (the "Power of Attorney") and the Custody Agreement (the
"Custody Agreement") hereinafter referred to, and for the sale and delivery of
the Shares to be sold by such Selling Stockholder hereunder, have been obtained;
and such Selling Stockholder has full right, power and authority to enter into
this Agreement, the Power of Attorney and the Custody Agreement and to sell,
assign, transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder; this Agreement, the Power of Attorney and the Custody Agreement have
each been duly authorized, executed and delivered by such Selling Stockholder;
(b) the sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement, the Power of Attorney and the Custody Agreement
and the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which such Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling Stockholder
is subject, nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of such Selling Stockholder if such
Selling Stockholder is a corporation, the Partnership Agreement of such Selling
Stockholder if such Selling Stockholder is a partnership, or any statute or any
order, rule or regulation of any court or
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governmental agency or body having jurisdiction over such Selling Stockholder or
the property of such Selling Stockholder;
(c) such Selling Stockholder has good and valid title to the Shares to
be sold at the Closing Date or Additional Closing Date, as the case may be, by
such Selling Stockholder hereunder, free and clear of all liens, encumbrances,
equities or adverse claims; such Selling Stockholder will have, immediately
prior to the Closing Date or Additional Closing Date, as the case may be, good
and valid title to the Shares to be sold at the Closing Date or Additional
Closing Date, as the case may be, by such Selling Stockholder, free and clear of
all liens, encumbrances, equities or adverse claims; and, upon delivery of the
certificates representing such Shares and payment therefor pursuant hereto, good
and valid title to such Shares, free and clear of all liens, encumbrances,
equities or adverse claims, will pass to the several Underwriters;
(d) such Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or which
might reasonably 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 Shares; and
(e) the information in the Registration Statement and the Prospectus
under the caption "Selling Stockholders," which specifically relates to such
Selling Stockholder (as amended or supplemented) complies or will comply, as the
case may be, in all material respects the Securities Act and do not and will
not, as of the applicable effective date of the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and such sections of the Prospectus, as
amended or supplemented, if applicable, at the Closing Date or Additional
Closing Date, as the case may be, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties shall not
apply to statements or omissions in such sections of the Registration Statement
or the Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein, which
information the parties hereto agree is limited to the Underwriters' Information
(as defined in Section 15).
Each of the Selling Stockholders represents and warrants that
certificates in negotiable form representing all of the Shares to be sold by
such Selling Stockholders hereunder have been placed in custody under a Custody
Agreement relating to such Shares, in the form heretofore furnished to you, duly
executed and delivered by such Selling Stockholder to Computershare Investor
Services, as custodian (the "Custodian"), and that such Selling Stockholder has
duly executed and delivered Powers of Attorney, in the form heretofore furnished
to you, appointing Xxxxx X. Xxxxxxx and Xxxx Xxxxxxxx, and each of them, as such
Selling Stockholder's Attorneys-in-fact (the "Attorneys-in-Fact" or any one of
them, the "Attorney-in Fact") with authority to execute and deliver this
Agreement on behalf of such Selling Stockholder, to determine the purchase price
to be paid by the Underwriters to the Selling Stockholders as provided herein,
to authorize the delivery of the Shares to be sold by such
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Selling Stockholder hereunder and otherwise to act on behalf of such Selling
Stockholder in connection with the transactions contemplated by this Agreement
and the Custody Agreement.
Each of the Selling Stockholders specifically agrees that the Shares
represented by the certificates held in custody for such Selling Stockholder
under the Custody Agreement, are subject to the interests of the Underwriters
hereunder, and that the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. Each
of the Selling Stockholders specifically agrees that the obligations of such
Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling Stockholder, or, in
the case of an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event. If any individual Selling
Stockholder or any such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if any such partnership
or corporation should be dissolved, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates representing such
Shares shall be delivered by or on behalf of such Selling Stockholder in
accordance with the terms and conditions of this Agreement and the Custody
Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of
such death, incapacity, termination, dissolution or other event.
5. (A) The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to file the final Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rule 430A under the Securities Act and to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; and to furnish copies of the
Prospectus to the Underwriters in New York City prior to 10:00 a.m., New York
City time, on the Business Day next succeeding the date of this Agreement in
such quantities as the Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to the Representatives
five (5) signed copies of the Registration Statement (as originally filed) and
each amendment thereto, in each case including exhibits and documents
incorporated by reference therein, and to each other Underwriter a conformed
copy of the Registration Statement (as originally filed) and each amendment
thereto, in each case without exhibits but including the documents incorporated
by reference therein and, during the period mentioned in paragraph (e) below, to
each of the Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by reference
therein as the Representatives may reasonably request;
11
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, to furnish to the Representatives a copy of the
proposed amendment or supplement for review and not to file any such proposed
amendment or supplement to which the Representatives reasonably object;
(d) to advise the Representatives promptly, and to confirm such advice
in writing (i) when any amendment to the Registration Statement has been filed
or becomes effective, (ii) when any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with copies
thereof, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
any additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the Prospectus
or the initiation or threatening of any proceeding for that purpose, (v) of the
occurrence of any event, within the period referenced in paragraph (e) below, as
a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
and (vi) of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such stop
order, or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any order suspending any such qualification
of the shares, or notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered in
connection with sales by the Underwriters or any dealer, any event shall occur
as a result of which, in the judgment of the Company or in the opinion of
counsel for the Underwriters or counsel for the Selling Stockholders, it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the expense
of the Company, to the Underwriters and to the dealers (whose names and
addresses the Representatives will furnish to the Company) to which Shares may
have been sold by the Representatives on behalf of the Underwriters and to any
other dealers upon request, such amendments or supplements to the Prospectus as
may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law;
(f) to endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Shares; provided that the Company
shall not be required to file a general consent to service of process in any
jurisdiction;
12
(g) to make generally available to its security holders and to the
Representatives, as soon as practicable, an earnings statement covering the
twelve-month period ending December 31, 2002 that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) for a period of five years after the date hereof, to furnish to
the Representatives copies of all reports or other communications (financial or
other) furnished to holders of the Shares, and copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange;
(i) for a period of 90 days after the date of the public offering of
the Shares not to (i) offer, pledge, announce the intention to sell, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any shares of Stock or any
securities convertible into or exercisable or exchangeable for Stock or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Stock or such other securities, in cash or otherwise without the prior
written consent of the Representatives, other than (i) the Shares to be sold by
the Company hereunder, (ii) any shares of Stock of the Company issued upon the
exercise of options granted under existing employee stock option plans, and
(iii) in connection with any acquisition by the Company, if all recipients of
such Stock agree in writing prior to the issuance of such Stock to be subject to
the foregoing lockup for the remainder of the 90-day lockup period;
(j) to use the net proceeds received by the Company from the sale of
the Shares by the Company pursuant to this Agreement in the manner specified in
the Prospectus under caption "Use of Proceeds";
(k) to use its best efforts to list for quotation the Shares on the
National Association of Securities Dealers Automated Quotations National Market
(the "Nasdaq National Market");
(l) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
reasonable costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
reasonable costs and expenses (i) incident to the preparation, registration,
transfer, execution and delivery of the Shares, (ii) incident to the
preparation, printing and filing under the Securities Act by the Company of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification of the Shares under the
laws of such jurisdictions as the Representatives may designate (including fees
of counsel for the Underwriters and its disbursements), in no event to exceed
$5,000 in the aggregate, (iv) in connection with the listing of the Shares on
the National Association of Securities Dealers Automated Quotations National
Market (the "Nasdaq National Market"), (v) related to the filing with, and
clearance of the offering by, the National Association of Securities Dealers,
Inc., (vi) in connection with the printing (including word processing and
duplication
13
costs) and delivery of this Agreement, the Preliminary and Supplemental Blue Sky
Memoranda and the furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping, as
herein provided, (vii) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors other than as provided in the
next succeeding sentence, (viii) related to preparing stock certificates
evidencing the initial issuance of the Underwritten Shares and the sale and
issuance of the Option Shares hereunder and (ix) the cost and charges of any
transfer agent and any registrar in connection with the initial issuance of the
Underwritten Shares and the sale and issuance of the Option Shares hereunder.
Notwithstanding the foregoing, the Underwriters agree to pay or cause to be paid
(i) any expenses incurred by the Underwriters in connection with a "road show"
presentation to potential investors, (ii) any travel expense incurred by the
Company in connection with the provision of corporate jet transportation in
connection with a "road show" presentation to potential investors and (iii) any
expenses incurred in connection with the registration or qualification of the
Shares under the laws of such jurisdictions as the Representatives may designate
(including the fees of counsel for the Underwriters and its disbursements) to
the extent such fees exceed $5,000 in the aggregate.
5. (B) Each of the Selling Stockholders covenants and agrees with each of
the several Underwriters as follows:
(a) for a period of 90 days after the date of the initial public
offering of the Shares not to (i) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any shares of Stock or
any securities convertible into or exercisable or exchangeable for Stock or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Stock or such other securities, in cash or otherwise or (iii) make any demand
for or exercise any right with respect to the registration of any shares of
Stock or any security convertible into or exercisable or exchangeable for Stock
without the prior written consent of the Representatives, in each case other
than the Shares to be sold by such Selling Stockholder hereunder; and
(b) to deliver to the Representatives prior to or at the Closing Date
a properly completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by the Treasury Department
regulations in lieu thereof) in order to facilitate the Underwriters'
documentation of their compliance with the reporting and withholding provisions
of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the
transactions herein contemplated.
6. The several obligations of the Underwriters hereunder to purchase the
Shares on the Closing Date or the Additional Closing Date, as the case may be,
are subject to the performance by the Company and each of the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
14
(a) the Registration Statement shall be effective (or if a
post-effective amendment is required to be filed under the Securities Act, such
post-effective amendment shall have become effective) not later than 5:00 P.M.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and (a) regulations under the Securities Act and in
accordance with Section 5(A)(a) hereof; and all requests for additional
information shall have been complied with to the satisfaction of the
Representatives;
(b) the respective representations and warranties of the Company and
the Selling Stockholders contained herein are true and correct in all material
respects on and as of the Closing Date or the Additional Closing Date, as the
case may be, as if made on and as of the Closing Date or the Additional Closing
Date, as the case may be, and each of the Company and the Selling Stockholders
shall have complied in all material respects with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date or the Additional Closing Date, as the case may be;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date or the Additional Closing Date, as the case may be,
there shall not have occurred any downgrading, nor shall any notice have been
given of (i) any downgrading, (ii) any intended or potential downgrading or
(iii) any review or possible change that does not indicate an improvement, in
the rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock (other than
changes resulting from the exercise of employee stock options) or long-term debt
of the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the Closing Date or the Additional Closing Date, as
the case may be, on the terms and in the manner contemplated in the Prospectus;
and neither the Company nor any of its subsidiaries has sustained since the date
of the latest audited financial statements included or incorporated by reference
in the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus which could reasonably be
expected to result in a Material Adverse Effect;
(e) the Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, (1) a certificate of an
executive officer of the
15
Company, with specific knowledge about the Company's financial matters,
satisfactory to the Representatives to the effect set forth in subsections (a)
through (d) (with respect to the respective representations, warranties,
agreements and conditions of the Company) of this Section and to the further
effect that there has not occurred any material adverse change, or any
development involving a prospective Material Adverse Change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement and (2) a certificate of the Selling Stockholders,
satisfactory to the Representatives to the effect set forth in subsection (b) of
this Section 6 (with respect to the respective representations, warranties,
agreements and conditions of the Selling Stockholders);
(f) Xxxx Xxxx Xxxx & Freidenrich LLP, counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the Closing
Date or the Additional Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, 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 its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in the United States which it owns or leases
properties, or conducts any business, so as to require such qualification, other
than where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a whole;
(iii) each of the Company's significant subsidiaries, which are
listed on Exhibit C attached hereto (the "Significant U.S. Subsidiaries") has
been duly incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in the United States in which it owns or leases properties, or
conducts any business, or maintains an office, so as to require such
qualification, other than where the failure to be so qualified and in good
standing would not have a Material Adverse Effect; and all of the outstanding
shares of capital stock of each subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims, to the knowledge of such counsel;
(iv) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to the best of such counsel's knowledge, threatened against or
affecting the Company or any of its subsidiaries or any of their respective
properties or to which the Company or any of its subsidiaries is or may be a
party or to which any property of the Company or its subsidiaries is or may be
the subject
16
which, if determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate have, or could reasonably be expected to have,
a material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole; to such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others; and such counsel does not know of any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(vii) the shares of capital stock of the Company outstanding
prior to the issuance of the Shares to be sold by the Company hereunder
(including the Shares to be sold by the Selling Stockholders) have been duly
authorized and are validly issued, and, to such counsel's knowledge, fully paid
and non-assessable;
(viii) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and when delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable and the issuance of the Shares is not
subject to any preemptive or similar rights;
(ix) the statements in the Prospectus (A) under "Description
of Capital Stock" and "Delaware Anti-Takeover Law and Charter and Bylaw
Provisions" and (B) incorporated by reference from Item 3 of Part 1 of the
Company's Annual Report on Form 10-K for the year ended December 31, 2000 and in
the Registration Statement in Item 15, insofar as such statements constitute a
summary of the terms of the Stock, legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect to
such terms, legal matters, documents or proceedings;
(x) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements thereto (other
than the financial statements, financial data, and related schedules therein, as
to which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and believes that (other
than the financial statements, financial data, and related schedules therein, as
to which such counsel need express no belief) the Registration Statement and the
prospectus included therein at the time the Registration Statement became
effective did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and that the Prospectus (other than the
financial statements, financial data, and related schedules therein, as to which
such counsel need express no belief), as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
17
(xi) neither the Company nor any of its Significant U.S.
Subsidiaries is, or with the giving of notice or lapse of time or both would be,
in violation of or in default under, its Certificate of Incorporation or By-Laws
or any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument identified by the Company to such counsel as material or filed by the
Company with the Commission pursuant to its reporting obligations under the
Exchange Act and to which the Company or any of its subsidiaries is a party or
by which it or any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the aggregate are
not material to the Company and its subsidiaries taken as a whole; the issue and
sale of the Shares being delivered on the Closing Date or the Additional Closing
Date, as the case may be, to be sold by the Company hereunder and the
performance by the Company of its obligations under this Agreement and the
consummation of the transactions contemplated herein 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, loan agreement or other agreement
or instrument identified by the Company to such counsel as material or filed by
the Company with the Commission pursuant to its reporting obligations under the
Exchange Act and to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will any such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any applicable law
or statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, its subsidiaries or any of their
respective properties;
(xii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental agency or
body is required for the issuance by the Company of the Shares to be sold by it
hereunder or the consummation of the Company of the transactions contemplated by
this Agreement, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters;
(xiii) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(xiv) the documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company prior to the
Closing Date or the Additional Closing Date, as the case may be (other than the
financial statements, financial data, and related schedules therein, as to which
such counsel need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all material
respects with the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder; and they
have no reason to believe that (except as to financial statements, financial
data and related schedules) any of such documents, when such documents became
effective or were so filed, as the case may be contained, in the case of a
registration statement which became effective under the Securities Act, an
untrue statement of a material fact or omitted to state a material fact required
to be stated
18
therein or necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Exchange Act with the
Commission (except as to financial statements, financial data and related
schedules), 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 when such documents were so filed,
not misleading;
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the States of New York, Delaware and Texas, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
counsel) of other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good standing of the
Company. The opinion of such counsel for the Company shall state that the
opinion of any such other counsel upon which they relied is in form satisfactory
to such counsel and, in such counsel's opinion, the Underwriters and they are
justified in relying thereon. With respect to the matters to be covered in
subparagraph (x) above counsel may state their opinion and belief is based upon
their participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto and review and discussion of
the contents thereof but is without independent check or verification except as
specified.
The opinion of Xxxx Xxxx Xxxx & Freidenrich LLP described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(g) Quasha, Ancheta, Xxxx and Xxxxxxx, Philippines counsel for
certain of the subsidiaries of the Company, shall have furnished to the
Representatives their written opinion in substantially the form attached hereto
as Exhibit D;
(h) Oppenhoff & Xxxxxx, German counsel for certain of the
subsidiaries of the Company, shall have furnished to the Representatives their
written opinion, in substantially the form attached hereto as Exhibit E;
(i) Weil, Gotshal & Xxxxxx LLP, U.S. counsel to the Selling
Stockholders, NautaDutilh, the Netherlands counsel to certain of the Selling
Stockholders and Hunter & Hunter, Cayman counsel to certain of the Selling
Stockholders, shall have furnished to the Representatives their written opinion,
dated the Closing Date or additional Closing Date, as the case may be, in form
and substance satisfactory to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling Stockholders;
(ii) a Power of Attorney and a Custody Agreement have been duly
authorized, executed and delivered by each Selling Stockholder and constitute
valid and binding agreements of each Selling Stockholder in accordance with
their terms, subject to applicable
19
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except that
rights to indemnification and contribution thereunder may be limited by federal
or state securities laws or public policy related thereto;
(iii) each Selling Stockholder is the record owner of all of the
Shares to be sold by such Selling Stockholder and, assuming that the
Underwriters acquire the Shares being sold to them pursuant hereto without
notice of an adverse claim thereto, upon (a) the delivery to the Underwriters of
such Shares, (b) the payment therefor in accordance with the terms hereof and
(c) the acquisition by the Underwriters of control of such Shares, the
Underwriters will acquire such Shares free of any adverse claim. For purposes of
this paragraph, the terms "delivery," "control," "adverse claim" and "notice of
an adverse claim" have the respective meanings ascribed thereto in Sections
8.301, 8.106, 8.102(a)(1) and 8.105 of the Uniform Commercial Code in effect in
the State of Texas; and
(iv) the sale of the Shares and the execution and delivery by
each Selling Stockholder of, and the performance by each Selling Stockholder of
its obligations under, this Agreement, and the consummation of the transactions
contemplated herein, to our knowledge, 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, loan agreement or other material agreement
or instrument to which any Selling Stockholder is a party or by which any
Selling Stockholder is bound or to which any of the property or assets of any
Selling Stockholder is subject.
In rendering such opinions, such counsel may rely as to matters involving
the application of laws other than the federal laws of the United States, the
laws of the States of New York and Texas, the corporate laws of the State of
Delaware and the laws of the Kingdom of the Netherlands (excluding the
Netherlands Antilles and Aruba), the laws of the European Union insofar as they
are directly applicable to the Netherlands, and the laws of the Cayman Islands,
to the extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable laws. The
opinion of such counsel for the Selling Stockholders shall state that the
opinion of any such other counsel is in form satisfactory to such counsel and,
in such counsel's opinion, the Underwriters and they are justified in relying
thereon.
(j) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date or Additional Closing Date,
as the case may be, each of Ernst & Young LLP and Xxxxxx Xxxxxxxx LLP shall have
furnished to you letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, containing statements and information of
the type customarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
20
(k) the Representatives shall have received on and as of the Closing
Date or Additional Closing Date, as the case may be, an opinion of Xxxxxx &
Xxxxxx L.L.P., counsel to the Underwriters, with respect to the due
authorization and valid issuance of the Shares, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(l) the Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on the
Nasdaq National Market, subject to official notice of issuance;
(m) on or prior to the Closing Date or Additional Closing Date,
as the case may be, the Company and the Selling Stockholders shall have
furnished to the Representatives such further certificates and documents as the
Representatives shall reasonably request including, without limitation,
certificates of good standing and foreign qualification with respect to the
Company and each of its subsidiaries not set forth on Exhibit B attached hereto;
and
(n) The "lock-up" agreements, each substantially in the form of
Exhibit A attached hereto, between you and certain stockholders, officers and
directors of the Company relating to sales and certain other dispositions of
shares of Stock or certain other securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date or Additional
Closing Date, as the case may be.
7. The Company agrees to indemnify and hold harmless each Underwriter,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Shares and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state in such sections therein a material fact required to
be stated in such sections therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus or the
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting such losses, claims, damages or liabilities purchased Shares,
or any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
21
Each of the Selling Stockholders severally in proportion to the number of
Shares to be sold by such Selling Stockholder hereunder agrees to indemnify and
hold harmless each Underwriter, each affiliate of any Underwriter which assists
such Underwriter in the distribution of the Shares and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in, which specifically relates to
such Selling Stockholder, in the sections entitled "Selling Stockholders," the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act and each of the
Selling Stockholders to the same extent as the foregoing indemnity from the
Company and the Selling Stockholders to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus, which information the parties hereto agree is
limited to the Underwriters' Information (as defined in Section 15).
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to the preceding paragraphs
of this Section 7, such person (the "Indemnified Person") shall promptly notify
the person or persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Persons, upon request
of the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Persons may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. However, the omission to so
notify the Indemnifying Person shall not relieve it from any liability it may
have to any Indemnified Person otherwise than under this Section 7 and will not
relieve it from any liability to the extent that it is not materially prejudiced
as a proximate result of such failure. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person and not the
Indemnifying Persons unless (i) the Indemnifying Persons and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Persons
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties)
22
include both an Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that no
Indemnifying Person shall, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters, each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Shares and
such control persons of Underwriters shall be designated in writing by X.X.
Xxxxxx Securities Inc. and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such control
persons of the Company shall be designated in writing by the Company and any
such separate firm for the Selling Stockholders shall be designated in writing
by an Attorney-in-Fact. No Indemnifying Person shall 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,
each Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, such Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first four paragraphs of this
Section 7 is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other hand shall be
deemed to be in the same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Selling Stockholders and
the total underwriting discounts and the commissions received by the
23
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Shares. The
relative fault of the Company and the Selling Stockholders on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Selling Stockholders or by the
Underwriters 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 contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Selling Stockholders or the
Underwriters were treated as one entity for such purposes) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective number of Shares set forth
opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any Indemnified
Person at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company and the Selling Stockholders
set forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any other person
controlling the Company or the Selling Stockholders and (iii) acceptance of and
payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in the absolute discretion of the Representatives, by notice given
to the Company and the Selling Stockholders, if after the execution and delivery
of this Agreement and prior to the Closing Date (or, in the case of the Option
Shares, prior to the Additional Closing Date) (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock
24
Exchange or the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of or
guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State or the State of Texas authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and which, in the judgment of the Representatives, makes it
impracticable to market the Shares being delivered at the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
9. This Agreement shall become effective upon execution and delivery
hereof by the parties hereto.
If on the Closing Date or the Additional Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Shares set
forth opposite their respective names in Schedule I bears to the aggregate
number of Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the number of Shares that any Underwriter has agreed to purchase pursuant to
Section 1 be increased pursuant to this Section 9 by an amount in excess of
one-tenth of such number of Shares without the written consent of such
Underwriter. If on the Closing Date or the Additional Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares to be purchased on such date,
and arrangements satisfactory to the Representatives, the Company and the
Selling Stockholders for the purchase of such Shares are not made within 36
hours after such default, this Agreement (or the obligations of the several
Underwriters to purchase the Option Shares, as the case may be) shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholder. In any such case either you or the Company and the
Selling Stockholders shall have the right to postpone the Closing Date (or, in
the case of the Option Shares, the Additional Closing Date), but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Selling Stockholders to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any of the Company or the
Selling Stockholders shall be unable to perform its obligations under
25
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company and the Selling Stockholders agree to reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and expenses of its counsel) reasonably incurred by the Underwriter in
connection with this Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Selling Stockholders and the Underwriters, each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Shares,
any controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Shares from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. 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 given to the
Representatives, c/o X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (telefax: ______), Attention: Syndicate Department.
Notices to the Company shall be given to it at 0000 00xx Xxxxxx, Xxxxx, Xxxxx
00000 (telefax: (000) 000-0000), Attention: General Counsel. Notices to the
Selling Stockholders shall be given to the Attorneys-in-Fact at 000 Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, c/o Hicks, Muse, Xxxx & Xxxxx
Incorporated (telefax: (000) 000-0000), Attention: Xxxx Xxxxxxxx or Xxxx Xxxxx.
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
15. The parties hereto acknowledge and agree that, for all purposes of
this Agreement, the Underwriters' Information consists solely of the following
information in the Prospectus: (a) the last two paragraphs on the front cover
page concerning the terms of the offering by the Underwriters; and (b) the
statements concerning the Underwriters contained in the second paragraph under
the heading "Underwriting."
26
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
MICROTUNE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
Selling Stockholders:
HM 1-FOF COINVESTORS CAYMAN, L.P.
By: XXXXX, XXXX XX PARTNERS L.A.
CAYMAN, L.P., its general partner
By: XXXXX, MUSE LATIN AMERICA FUND
GP CAYMAN, L.L.C.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HMTF EQUITY FUND IV (1999) CAYMAN, L.P.
By: HM EQUITY FUND IV/GP CAYMAN, L.P.,
its general partner
By: HM GP PARTNERS IV CAYMAN, L.P.,
its general partner
By: HM FUND IV CAYMAN, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HMTF PRIVATE EQUITY FUND IV (1999)
CAYMAN, L.P.
By: HM EQUITY FUND IV/GP CAYMAN, L.P.,
its general partner
By: HM GP PARTNERS IV CAYMAN, L.P.,
its general partner
By: HM FUND IV CAYMAN, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
XXXXX, MUSE PG-IV (1999), C.V.
By: HM EQUITY FUND IV/GP PARTNERS
(1999), C.V., its general partner
By: HM GP PARTNERS IV CAYMAN, L.P.,
its general partner
By: HM FUND IV CAYMAN, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HM 4-P COINVESTORS CAYMAN, L.P.
By: HM GP PARTNERS IV CAYMAN, L.P.,
its general partner
By: HM FUND IV CAYMAN, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HM 4-EN COINVESTORS CAYMAN, L.P.
By: HM GP PARTNERS IV CAYMAN, L.P.,
its general partner
By: HM FUND IV CAYMAN, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HM 4-EQ COINVESTORS CAYMAN, L.P.
By: HM GP PARTNERS IV CAYMAN, L.P.,
its general partner
By: HM FUND IV CAYMAN, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HMEU 1-EN COINVESTORS, L.P.
By: HMEU INTERMEDIATE PARTNERS I-C,
L.P., its general partner
By: HMEU FUND I-C, INC.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HMEU 1-EQ COINVESTORS, L.P.
By: HMEU INTERMEDIATE PARTNERS I-C, L.P.,
its general partner
By: HMEU FUND I-C, INC.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HMEU 1-P COINVESTORS, L.P.
By: HMEU INTERMEDIATE PARTNERS I-C, L.P.,
its general partner
By: HMEU FUND I-C, INC.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HMTF EUROPE FUND CAYMAN, L.P.
By: HMEU FUND I-C, INC.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HMTF EUROPE PRIVATE FUND CAYMAN, L.P.
By: HMEU FUND I-C, INC., its general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
HM PG EUROPE I, C.V.
By: HMEU FUND I-C, INC.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
Vice President, Treasurer and Secretary
As Attorneys-in-Fact acting on behalf of each
of the Selling Stockholders named in Schedule
II to this Agreement.
Accepted: December 14, 2001
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
XX Xxxxx Securities Corporation
Prudential Securities Incorporated
Acting severally on behalf
of themselves and the
several Underwriters listed
in Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name:
-------------------------------------
Title: Vice President
------------------------------------
By: Xxxxxxx Xxxxx Barney Inc.
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By: /s/ Xxxxx X.X. Xxxxxx
------------------------------------------
Name:
-------------------------------------
Title: Managing Director
------------------------------------
By: XX Xxxxx Securities Corporation
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name:
-------------------------------------
Title: Managing Director
------------------------------------
By: Prudential Securities Incorporated
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By: /s/ Xxxx Xxxxxx Xxxxxx
------------------------------------------
Name:
-------------------------------------
Title: Managing Director
------------------------------------
