Glu Mobile Inc. Common Stock, par value $0.0001 per share Underwriting Agreement
Exhibit 1.01
Common Stock, par value $0.0001 per share
_______________
_______________, 2007
Xxxxxxx, Xxxxx & Co.,
Xxxxxx Brothers Inc.,
Banc of America Securities LLC and
Xxxxxxx & Company, LLC
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.,
Banc of America Securities LLC and
Xxxxxxx & Company, LLC
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Glu Mobile Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the
“Underwriters”) an aggregate of
shares and, at the election of the Underwriters, up to
additional shares of Common Stock, par value $0.0001 per share (“Stock”) of the Company
and the stockholders of the Company named in Schedule II hereto (the “Selling Stockholders”)
propose, subject to the terms and conditions stated herein, to sell to the Underwriters an
aggregate
of
shares of Stock. The aggregate of shares to be sold by the Company
is herein called the “Firm Shares” and the aggregate
of additional shares to be sold by
the Company and the Selling Stockholders at the election of the Underwriters is herein called the
“Optional Shares.” The Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 4 hereof are herein collectively called the “Shares”.
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-139493) (the “Initial Registration
Statement”) in respect of the Shares has been filed with the Securities and Exchange Commission
(the “Commission”); the Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits thereto, to you for each of
the other
Underwriters, have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering
(a “Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b) under the Securities
Act of 1933, as amended (the “Act”), which became effective upon filing, no other document with
respect to the Initial Registration Statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act is hereinafter called a
“Preliminary Prospectus”; the various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 7(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was declared effective, each as
amended at the time such part of the Initial Registration Statement became effective or such part
of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the “Registration Statement”; the Preliminary Prospectus relating
to the Shares that was included in the Registration Statement immediately prior to the Applicable
Time (as defined in Section 1(c) hereof) is hereinafter called the “Pricing Prospectus”; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called
the “Prospectus”; and any “issuer free writing prospectus” as defined in Rule 433 under the Act
relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, 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 the 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 information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(c) For
the purposes of this Agreement, the “Applicable Time” is ___:___ pm (Eastern time) on
the date of this Agreement. The Pricing Prospectus, when taken together with the pricing
information set forth on Schedule III(a) hereto, as of the Applicable Time, did not include any
untrue
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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 under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on Schedule III(b) hereto does not
conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Pricing Prospectus as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in the Pricing Prospectus, the Prospectus
or an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(e) The Company and its subsidiaries, taken as a whole, have not sustained since the date of
the latest audited financial statements included in the Pricing 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 Pricing Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and the Pricing Prospectus,
there has not been any change in the capital stock, other than the grant of options or stock awards
in the ordinary course under stock plans as described in the Pricing Prospectus or the issuance of
Stock upon the exercise of outstanding options and warrants as described in the Pricing Prospectus,
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,
management, financial position, stockholders’ equity or results of operations of the Company and
its subsidiaries, taken as a whole (a “Material Adverse Effect”), otherwise than as set forth or
contemplated in the Pricing Prospectus;
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(f) Neither the Company nor any of its subsidiaries own any real property; the Company and its
subsidiaries have good and marketable title to all personal property owned by them (other than
Intellectual Property (as defined below), which is covered by Section 1(u) below), in each case
free and clear of all liens, encumbrances and defects except such as are described in the Pricing
Prospectus or such as do not materially affect the value of such property and do not
materially interfere with the use made and 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, subsisting and enforceable leases with such exceptions
as are not material and do not materially interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(g) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Pricing Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is in good standing
under the laws of the State of California and 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 be so qualified or in good standing would not have a Material Adverse Effect; and each
subsidiary of the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation;
(h) Following the filing of the Company’s restated certificate of incorporation (the “Restated
Certificate”), the form of which has been filed as Exhibit 3.02 to the Registration Statement, the
Company will have an authorized capitalization as set forth in the Pricing Prospectus and all of
the issued shares of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and conform in all material respects to the description of
the Stock contained in the Pricing Prospectus and Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims and
there are no options, warrants or other rights to acquire shares of capital stock of any subsidiary
of the Company held by any party other than the Company or any direct or indirect, wholly-owned
subsidiary of the Company;
(i) The unissued Shares to be issued and sold by the Company to the Underwriters hereunder
have been duly and validly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and non-assessable and will conform
in all material respects to the description of the Stock contained in the Prospectus;
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(j) The issue and sale of the Shares and the compliance by the Company with this Agreement and
the consummation of the transactions herein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, 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, (ii) result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or (iii) result in
any violation of any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries or any of their properties
except in the cases of clause (i) or (iii) for such conflict, breach, violation or default as would
not reasonably be expected to have a Material Adverse Effect; and no consent, approval,
authorization, order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement, except the registration under the Act of the
Shares and such consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws or under any securities of any jurisdictions
outside of the United States in connection with the purchase and distribution of the Shares by the
Underwriters;
(k) Neither the Company nor any of its subsidiaries is (i) in violation of its Certificate of
Incorporation or By-laws or (ii) in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a party or by which it or any
of its properties may be bound, except in the case of clause (ii) where any such default would not
reasonably be expected to have a Material Adverse Effect;
(l) The statements set forth in the Pricing Prospectus and Prospectus under the caption
“Description of Capital Stock”, insofar as they purport to constitute a summary of the terms of the
Stock and under the caption “Underwriting”, insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and fair;
(m) Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
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(n) The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be an “investment company”, as such term is defined
in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(o) At the time of filing the Initial Registration Statement the Company was not and is not an
“ineligible issuer,” as defined under Rule 405 under the Act;
(p) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company
and its subsidiaries, is an independent registered public accounting firm as required by the Act
and the rules and regulations of the Commission thereunder;
(q) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) that complies with the requirements of the Exchange Act and has been designed by the
Company’s principal executive officer and principal financial officer, or under their supervision,
to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted
accounting principles. [Except as disclosed in the Pricing Prospectus,] the Company’s internal
control over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(r) Since the date of the latest audited financial statements included in the Pricing
Prospectus, there has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting;
(s) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries, taken as a whole, is made known to the Company’s principal
executive officer and principal financial officer by others within those entities; and such
disclosure controls and procedures are effective;
(t) The Company’s board of directors meets the independence requirements of, and has
established an audit committee that meets the independence requirements of, the rules and
regulations of the Commission and the Nasdaq’s Global Market (including any transition rules,
exceptions or exemptions applicable to the Company);
(u) Other than as set forth in the Pricing Prospectus, the Company and its subsidiaries own or
possess, or can acquire on reasonable terms, all material licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or
6
procedures), trademarks, service marks and trade names
(collectively, “Intellectual Property”) currently employed by them in connection with the business
now operated by them, and neither the Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect;
(v) The Company has not offered, or caused any Underwriter to offer, Shares to any person
pursuant to a Directed Share Program with the intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer’s or supplier’s level or type of business with the
Company, or (ii) a trade journalist or publication to write or publish favorable information about
the Company or its products;
(w) Neither the Company, any subsidiary, nor to the Company’s knowledge any director, officer,
agent, employee or other person acting at the direction of the Company or any of its subsidiaries,
has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment;
(x) No material labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that would be reasonably expected to have a Material
Adverse Effect and no employees of the Company are subject to a collective bargaining agreement;
(y) The Company and its subsidiaries are insured against such losses and risks as the Company
reasonably believes is prudent and customary in the businesses in which they are engaged; and
neither the Company nor any of its subsidiaries has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a cost that would
not have a Material Adverse Effect, other than as set forth in the Pricing Prospectus; and
(z) The Company has no significant subsidiaries organized under the laws of a U.S.
jurisdiction; for purposes of this subsection (z) a “significant subsidiary” shall be deemed to
include a subsidiary in which (i) the assets of the subsidiary exceed five percent (5%) of the
total assets of the Company and its subsidiaries on a consolidated basis, (ii) the revenues of the
subsidiary for the most recently completed fiscal year exceed five percent (5%) of the total
revenues
7
of the Company and its subsidiaries on a consolidated basis for the most recently
completed fiscal year or (iii) the number of employees of the subsidiary exceed five percent (5%)
of the total number of employees of the Company and its subsidiaries on a consolidated basis.
2. Each of the Selling Stockholders, severally and not jointly, represents and warrants to,
and agrees with, each of the Underwriters and the Company 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 and 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;
(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, 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 governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such Selling Stockholder;
(c) Such Selling Stockholder has, and immediately prior to the Time of Delivery (as defined in
Section 6 hereof) such Selling Stockholder will have, good and valid title to the Shares to be sold
by such Selling Stockholder hereunder, free and clear of all liens, encumbrances, equities or
claims; and, upon payment for the Shares to be sold by such Selling Stockholder pursuant to this
Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such
other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such
Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of
DTC to securities accounts of the Underwriters, (A) DTC will be a “protected purchaser” of such
Shares within the meaning of Section 8-303 of the Uniform Commercial Code as in effect in the State
of New York (the “UCC”), (B) under Section 8-501 of the UCC, the
8
Underwriters will acquire a valid
security entitlement with respect to such Shares and (C) no action based on an “adverse claim,”
within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the
Underwriters with respect to such security entitlement; for purposes of this representation, such
Selling Stockholder may assume that when such payment, delivery, registration and crediting occur,
(x) such Shares will have been registered in the name of Cede or another nominee designated by DTC,
in each case on the Company’s share registry in accordance with its certificate of incorporation
and applicable law, (y) DTC is a “securities intermediary” within the meaning of Section 8-102 of
the UCC and (z) DTC indicates by book entries on its books that security entitlements with respect
to the Shares have been credited to the accounts of the several Underwriters;
(d) During the period beginning from the date hereof and continuing to and including the date
180 days after the date of the Prospectus (the “Lock-Up Period”), not to offer, sell, contract to
sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of, except as
provided hereunder, any
securities of the Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or that represent the
right to receive, Stock or any such substantially similar securities (other than (i) as expressly
permitted by the Stockholder Lock-Up Agreement (as defined in Section 10(j) below) previously
entered into by such Selling Stockholder and (ii) pursuant to stock plans (including equity
incentive plans and employee stock purchase plans) approved by the Company’s board of directors as
of the date of this Agreement and upon exercise of an option or warrant, or upon the conversion or
exchange of convertible or exchangeable securities, outstanding as of the date of this Agreement),
without the prior written consent of Xxxxxxx, Xxxxx & Co.; provided, however, that if (x) during
the last 17 days of the initial Lock-Up Period, the Company releases earnings results or announces
material news or a material event or (y) prior to the expiration of the initial Lock-Up period, the
Company announces that it will release earnings results during the 15-day period following the last
day of the initial Lock-Up Period, then in each case the Lock-Up Period will be automatically
extended until the expiration of the 18-day period beginning on the date of release of the earnings
results or the announcement of the material news or material event, as applicable, unless Xxxxxxx,
Sachs & Co. waives, in writing, such extension; such Selling Stockholder hereby acknowledges that
the Company has agreed herein to provide written notice of any event that would result in an
extension of the Lock-Up Period pursuant to the previous sentence to such Selling Stockholder (in
accordance with Section 16 herein) and agrees that any such notice properly delivered will be
deemed to have been given to, and received by, the Selling Stockholder; such Selling Stockholder
hereby further agrees that, prior to engaging in any transaction or taking any other action that is
subject to the terms of this provision during the period from the date hereof to and including the
34th
9
day following the expiration of the initial Lock-Up Period, it will give notice thereof to the
Company and will not consummate such transaction or take any such action unless it has received
written confirmation from the Company that the Lock-Up Period (as such may have been extended
pursuant to the previous paragraph) has expired.
(e) 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;
(f) To the extent that any statements or omissions made in Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus are made in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder expressly for use therein,
such, Preliminary Prospectus, Pricing Prospectus, Prospectus and Issuer Free Writing Prospectus and
the Registration Statement did, and the Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective or are filed with the
Commission, as the
case may be, will conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and will not 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;
(g) In order to document the Underwriters’ compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated, such Selling Stockholder will deliver to you prior to or at the Time of
Delivery (as hereinafter defined) a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(h) Certificates in negotiable form representing all of the Shares to be sold by such Selling
Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore
furnished to you (the “Custody Agreement”), duly executed and delivered by such Selling Stockholder
to American Stock Transfer & Trust Company, as custodian (the “Custodian”), and such Selling
Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished
to you (the “Power of Attorney”), appointing the persons indicated in Schedule II hereto, and each
of them, as such Selling Stockholder’s attorneys-in-fact (the “Attorneys-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 in Section 3
hereof, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder
and otherwise to act on behalf of such Selling
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Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement; and
(i) 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; 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; the
obligations of the Selling Stockholders 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 the Shares shall be delivered by or on behalf of the Selling Stockholders
in accordance with the terms and conditions of this Agreement and of the Custody Agreements; 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.
3. Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at a purchase price per share of $ , the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to purchase Optional
Shares as provided below, the Company and each of the Selling Stockholders agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Stockholders, at the purchase
price per share set forth in clause (a) of this Section 3, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional Shares by a
fraction, the numerator of which is the maximum number of Optional Shares which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and
the denominator of which is the maximum number of Optional Shares that all of the Underwriters are
entitled to purchase hereunder.
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The Company and the Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right to purchase at their
election up to an aggregate of Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of shares in excess of the
number of Firm Shares, provided that the purchase price per Optional Share shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company and payable on the
Firm Shares but not payable on the Optional Shares. Any such election to purchase Optional Shares
shall be made initially among the Selling Stockholders in proportion to the maximum number of
Optional Shares to be sold by each Selling Stockholder as set forth in Schedule II hereto and then
with respect to the Optional Shares to be sold by the Company. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company and the
Attorneys-in-Fact, given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by you but in no event earlier than the First
Time of Delivery (as defined in Section 6 hereof) or, unless you and the Company and the
Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
4. Upon the authorization by you of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set forth in the
Prospectus.
5. The Company hereby confirms its engagement of Xxxxxxx, Xxxxx & Co. as, and Xxxxxxx, Sachs &
Co. hereby confirms its agreement with the Company to render services as, a “qualified independent
underwriter” within the meaning of Rule 2720(b)(15) of the National Association of Securities
Dealers, Inc. (the “NASD”) with respect to the offering and sale of the Shares. Xxxxxxx, Xxxxx &
Co., in its capacity as qualified independent underwriter and not otherwise, is referred to herein
as the “QIU”. Subject to the provisions of Section 10 hereof, the QIU will furnish to the Company
and the Underwriters a letter, dated as of the Time of Delivery, in substantially the form attached
as Annex II(a) hereto). As compensation for the services of the QIU hereunder, the Company agrees
to pay the QIU $10,000 on the First Time of Delivery.
6. (a) The Shares to be purchased by each Underwriter hereunder, in such authorized denominations
and registered in such names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours’
prior notice to the Company and the Selling Stockholders shall be delivered by or on behalf of the
Company and the Selling Stockholders to Xxxxxxx, Xxxxx & Co., through the facilities of the “DTC,
for the account of such Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by
the Company and the Custodian to Xxxxxxx, Sachs & Co. at least forty-eight hours in advance. The
time and date of
12
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on _______, 2007 or such other time and date as Xxxxxxx, Xxxxx & Co. and the Company
may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on
the date specified by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of
the Underwriters’ election to purchase such Optional Shares, or such other time and date as
Xxxxxxx, Sachs & Co., the Company and the Selling Stockholders may agree upon in writing. Such
time and date for delivery of the Firm Shares is herein called the “First Time of Delivery”, such
time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein
called the “Second Time of Delivery”, and each such time and date for delivery is herein called a
“Time of Delivery”.
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 10 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 10(l) hereof, will be delivered at the
offices of Fenwick & West LLP, Silicon Valley Center, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000 (the “Closing Location”), and the Shares will be delivered through the facilities
of DTC, all at such Time of Delivery. A meeting will be held at the
Closing Location at _______ p.m., New York City time, on the New York Business Day next preceding such Time of Delivery,
at which meeting the final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the purposes of this Section 6,
“New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in New York City are generally authorized or obligated by
law or executive order to close.
7. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or
any supplement to the Registration Statement or the Prospectus prior to the last Time of Delivery
which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and
to furnish you with copies thereof; to file promptly all material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of
the Shares, of the suspension of the qualification of the Shares for offering or sale in any
jurisdiction,
13
of the initiation or threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration Statement or the Prospectus or
for additional information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to the
Shares or suspending any such qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the Shares and if at such
time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus in order to comply with the
Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many written and electronic copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance; and in case any Underwriter is required to
deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in
connection with sales of any of the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many written and electronic copies as you may reasonably request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as practicable (which may be
satisfied by electronically filing such information through the Commission’s Electronic Data
Gathering, Analysis and Retrieval
14
System (“XXXXX”)), but in any event not later than sixteen months after the effective date of
the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the Lock-Up Period, not to (1) offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of any
securities of the Company that are substantially similar to the Shares, including but not limited
to any options or warrants to purchase shares of Stock or any securities that are convertible into
or exchangeable for, or that represent the right to receive, Stock or any such substantially
similar securities (other than (i) the grant of option or stock awards pursuant to stock plans
(including equity incentive plans and employee stock purchase plans) approved by the Company’s
board of directors as of the date of this Agreement and as described in the Pricing Prospectus,
(ii) upon exercise of an option or warrant, or upon the conversion or exchange of convertible or
exchangeable securities, outstanding as of the date of this Agreement, (iii) in connection with
mergers or acquisitions (irrespective of whether in the form of an acquisition of securities,
businesses, properties or assets), or joint ventures or strategic alliances with, another company
or the securityholders of another company in an aggregate amount not to exceed 10% of the number of
shares of stock issued and outstanding immediately following completion of the issuance of the
Shares or (iv) the shares to be sold by the Company hereunder), (2) file or cause to be filed a
registration statement, including any amendments thereto, with respect to the registration of
securities of the Company that are substantially similar to the Shares, including but not limited
to any options or warrants to purchase shares of Stock or any securities that are convertible into
or exchangeable for, or that represent the right to receive, Stock or any such substantially
similar securities (other than in connection with the issuance or resale of securities issued or to
be issued (i) pursuant to equity incentive plans approved by the Company’s board of directors as of
the date of this Agreement and as described in the Pricing Prospectus, (ii) in connection with
mergers or acquisitions (irrespective of whether in the form of an acquisition of securities,
businesses, properties or assets), or joint ventures or strategic alliances with, another company
or the securityholders of another company in an aggregate amount not to exceed 10% of the number of
shares of stock issued and outstanding immediately following completion of the issuance of the
Shares, or (iii) upon the conversion or exchange of convertible or exchangeable securities
outstanding as of the date of this Agreement), or (3) publicly disclose the intention to do any of
the foregoing, in each case without the prior written consent of Xxxxxxx, Xxxxx & Co.; provided,
however, that if (x) during the last 17 days of the initial Lock-Up Period, the Company releases
earnings results or announces
15
material news or a material event or (y) prior to the expiration of the initial Lock-Up
Period, the Company announces that it will release earnings results during the 15-day period
following the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be
automatically extended until the expiration of the 18-day period beginning on the date of release
of the earnings results or the announcement of the material news or material event, as applicable,
unless Xxxxxxx, Sachs & Co. waives, in writing, such extension; the Company will provide Xxxxxxx,
Xxxxx & Co. and each stockholder subject to the Lock-Up Period pursuant to the lockup letters
described in Section 10(j) with notice of any such announcement that gives rise to an extension of
the Lock-Up Period;
(f) To furnish to its stockholders as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, stockholders’ equity and cash
flows of the Company and its consolidated subsidiaries certified by independent public accountants)
and, as soon as practicable after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the Registration Statement),
to make available to its stockholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail (which may be satisfied by electronically
filing such information through XXXXX, except where delivery to stockholders of record is required
under applicable Commission regulations);
(g) During a period of five years from the effective date of the Registration Statement, to
furnish to you copies of all reports or other communications (financial or other) furnished to
stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission); provided that the Company shall not be required to
provide documents that are available through XXXXX or documents or information the provision of
which would require public disclosure by the Company under Regulation FD under the Exchange Act
(subject to any exceptions or exemptions therefrom permitting the provision of such documents or
information without such public disclosure);
(h) To use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(i) To list for quotation, subject to notice of issuance, the Shares on the Nasdaq Stock
Market Inc.’s Global Market (“NASDAQ”);
16
(j) To file with the Commission such information on Form 10-Q or Form 10-K as may be required
by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(l) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to
such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo
for use on the website, if any, operated by such Underwriter for the purpose of facilitating the
on-line offering of the Shares (the “License”); provided, however, that the License shall be used
solely for the purpose described above, is granted without any fee and may not be assigned,
sublicensed or transferred.
8. (a) The Company and each Selling Stockholder represents and agrees that, without the prior
consent of Xxxxxxx, Sachs & Co., it has not made and will not make any offer relating to the Shares
that would constitute a “free writing prospectus” as defined in Rule 405 under the Act; each
Underwriter represents and agrees that, without the prior consent of the Company and Xxxxxxx, Xxxxx
& Co., it has not made and will not make any offer relating to the Shares that would constitute a
free writing prospectus; any such free writing prospectus the use of which has been consented to by
the Company and Xxxxxxx, Sachs & Co. is listed on Schedule III(b) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show;
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or 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 then
prevailing, not misleading, the Company will give prompt notice thereof to Xxxxxxx, Xxxxx & Co.
and, if requested by Xxxxxxx, Sachs & Co., will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict,
statement or omission; provided, however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus made in reliance
17
upon and in conformity with information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein.
9. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing of the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters,
this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 7(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in connection with the Blue
Sky survey; (iv) all fees and expenses in connection with listing the Shares on NASDAQ; (v) the
filing fees incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically provided for in this
Section. Each Selling Stockholder covenants and agrees with the several Underwriters and the
Company that such Selling Stockholder will pay or cause to be paid all costs and expenses incident
to the performance of such Selling Stockholder’s obligations hereunder which are not otherwise
specifically provided for in this Section, including (i) any fees and expenses of any separate
counsel for such Selling Stockholder, and such Selling Stockholder’s pro rata share of the
reasonable fees and expenses of one special counsel for the Selling Stockholders collectively, (ii)
such Selling Stockholder’s pro rata share of the fees and expenses of the Attorneys-in-Fact and the
Custodian, and (iii) all expenses and taxes incident to the sale and delivery of the Shares to be
sold by such Selling Stockholder to the Underwriters hereunder. It is understood, however, that
unless otherwise provided for in separate agreements between the Selling Stockholders and the
Company, the Company shall bear, and the Selling Stockholders shall not be required to pay or to
reimburse the Company for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement, and that, except as provided in this Section,
and Sections 11 and 14 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected
18
with any offers they may make and that the Company and the Underwriters shall each bear their
own lodging expenses and their proportional share of the costs associated with any aircraft used in
connection with the “road show” undertaken in connection with the marketing of the Shares.
10. The respective obligations of the Underwriters to the Company and the Selling Stockholders
hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of the
Company and of the Selling Stockholders, respectively, herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling Stockholders,
respectively, shall have performed all of its and their obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 7(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely
upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission; no stop
order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus
shall have been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx LLP, counsel for the
Underwriters, shall have furnished to you such written opinion or opinions, dated as of such Time
of Delivery, in form and substance satisfactory to you, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass upon such matters;
(c) (1) Fenwick & West, LLP, counsel for the Company, shall have furnished to you their
written opinion, dated as of such Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) Upon the filing of the Restated Certificate, the Company will have an authorized
capitalization as set forth in the Prospectus, and all of the
19
issued shares of capital stock of the Company (including the Shares being delivered at such
Time of Delivery) have been duly and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform as to legal matters to the description of the Stock in the
Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of California and each other U.S. jurisdiction in
which it owns or leases properties or in which the conduct of its business requires such
qualification and in which the failure to be so qualified would result in a Material Adverse Effect
(such counsel being entitled to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you and they are justified in
relying upon such opinions and certificates);
(iv) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future consolidated financial position,
stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a
whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) This Agreement has been duly authorized by all necessary corporate action of the Company,
and has been duly executed and delivered by the Company;
(vi) The issue and sale of the Shares being delivered at such Time of Delivery and the
compliance by the Company with this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in (A) a material breach or violation 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 filed as an exhibit to the Registration Statement (each,
a “Material Agreement”), (B) in any violation of the provisions of the Certificate of Incorporation
or By-laws of the Company, or (C) any violation of any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this Agreement, except such as have
been obtained under the Act and such consents, approvals, authorizations, registrations or
20
qualifications as may be required under state securities or Blue Sky laws or under any
securities laws of jurisdictions outside the United States in connection with the purchase and
distribution of the Shares by the Underwriters;
(viii) To such counsel’s knowledge, the Company is not in violation of its Certificate of
Incorporation or By-laws and to such counsel’s knowledge neither the Company nor any of its
subsidiaries is in default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument listed on Schedule A to such opinion;
(ix) The statements set forth in the Prospectus under the caption “Description of Capital
Stock”, insofar as they purport to constitute a summary of the terms of the Stock, and under the
caption “Underwriting”, insofar as they purport to describe the provisions of the laws and
documents referred to therein other than the laws of jurisdictions outside of the United States,
are accurate and complete in all material respects;
(x) The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be an “investment company”, as such term is defined
in the Investment Company Act;
In addition to rendering legal advice and assistance to the Company in the course of the
preparation of the Registration Statement, the Pricing Prospectus and the Prospectus, involving,
among other things, discussions and inquiries concerning various legal matters and the review of
certain corporate records, documents and proceedings, such counsel shall state that such counsel
also participated in conferences with certain officers and other representatives of the Company,
including its independent certified public accountants and with you and your counsel, at which the
contents of the Registration Statement, the Pricing Prospectus and the Prospectus and related
matters were discussed. Such counsel may state that such counsel has not, however, independently
verified the accuracy, completeness or fairness of the information contained in the Registration
Statement, the Pricing Prospectus and Prospectus.
Such counsel shall state that based on such counsel’s participation as described in the
preceding paragraph, however, (i) such counsel believes the Registration Statement, the Prospectus
and any further amendments and supplements thereto, as applicable, made by the Company prior to
such Time of Delivery (other than the financial statements and related schedules and other
financial and accounting data included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the Act and the rules and
regulations thereunder; (ii) although such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Registration Statement, the
Pricing Prospectus or the Prospectus, except to the extent set forth in the opinion in subsection
(ix) of this Section 10(c), nothing has come to the attention of such
21
counsel that causes such counsel to believe, (a) that, any part of the Registration Statement
or any further amendment thereto made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial and accounting data included
therein, as to which such counsel need express no opinion), when such part or amendment became
effective, contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading; (b) that
the Pricing Prospectus, when taken together with the pricing information set forth on Schedule
III(a) hereto, as of the Applicable Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; or (c) that, as of its date and as
of such Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements and related schedules
and other financial and accounting data included therein, as to which such counsel need express no
opinion) contained or contains an untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and (iii) such counsel does not know of any amendment to the
Registration Statement required to be filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as required;
(2) Xxxx Little LLP, English legal advisers to the Company, shall have furnished to you their
written opinion, dated as of such Time of Delivery, in form and substance satisfactory to you, to
the effect that: (i) each of the relevant subsidiaries of the Company incorporated in England and
Wales (being (a) Glu Mobile Limited, (b) iFone Holdings Limited, and (c) iFone Limited where each
of Glu Mobile Limited and iFone Holdings Limited are direct subsidiaries of the Company and iFone
Limited is a wholly owned subsidiary of iFone Holdings Limited) (the “UK Subsidiaries”), has been
duly incorporated and is validly existing under the laws of England and Wales as a private limited
company with limited liability; (ii) all of the issued shares of each of Glu Mobile Limited and
iFone Holdings Limited are held by the Company fully paid and are registered in the name of the
Company in the statutory registers of Glu Mobile Limited and iFone Holdings Limited (respectively);
(iii) all of the issued shares of iFone Limited are held by iFone Holdings Limited fully paid and
are registered in the name of iFone Holdings Limited in the statutory registers of iFone Limited;
(iv) such shares have been duly authorised and issued by the UK Subsidiaries; and (v) to Xxxx
Little LLP’s knowledge, such shares are free and clear of all liens, encumbrances, equities or
claims; and (vi) to Xxxx Little LLP’s knowledge, none of the UK subsidiaries is in breach of its
memorandum or articles of association, except (in
22
each case) as otherwise noted in such opinion (such legal advisers being entitled to rely in
respect of matters of fact upon certificates of officers of the Company or the UK Subsidiaries,
provided that such legal advisers shall state that they believe that both you and such legal
advisers are justified in relying upon such certificates);
(d) The respective counsel for each of the Selling Stockholders, as indicated in Schedule II
hereto, each shall have furnished to you their written opinion with respect to each of the Selling
Stockholders for whom they are acting as counsel (a draft of each such opinion is attached as Annex
II(c) hereto), dated as of the Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) A Power-of-Attorney and a Custody Agreement have been duly executed and delivered by such
Selling Stockholder and constitute valid and binding agreements of such Selling Stockholder in
accordance with their terms;
(ii) This Agreement has been duly executed and delivered by or on behalf of such Selling
Stockholder; and 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 (A) conflict with or result in a breach or violation of any terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel 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, except as would not materially affect the ability of such
Selling Stockholder to consummate the transactions contemplated by this Agreement, (B) 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 (C) result in
any violation of any statute, order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over such Selling Stockholder or the property of
such Selling Stockholder, except as would not materially affect the ability of such Selling
Stockholder to consummate the transactions contemplated by this Agreement;
(iii) No consent, approval, authorization or order of any court or governmental agency or body
is required for the consummation of the transactions contemplated by this Agreement in connection
with the Shares to be sold by such Selling Stockholder hereunder, except such as have been obtained
under the Act and such as may be required under state securities or Blue Sky laws or under any
securities laws of jurisdictions outside of the United States in connection with the purchase and
distribution of such Shares by the Underwriters;
23
(iv) Immediately prior to the Time of Delivery, such Selling Stockholder had good and valid
title to the Shares to be sold at such Time of Delivery by such Selling Stockholder under this
Agreement, free and clear of all liens, encumbrances, equities or claims, and full right, power and
authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder; and
(v) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this
Agreement, delivery of such Shares, as directed by the Underwriters, to Cede or such other nominee
as may be designated by DTC, registration of such Shares in the name of Cede or such other nominee
and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters
(assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the
meaning of Section 8-105 of the UCC) to such Shares), (A) DTC will be a “protected purchaser” of
such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the
Underwriters will acquire a valid security entitlement with respect to such Shares and (C) no
action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares
may be asserted against the Underwriters with respect to such security entitlement; it being
understood that for purposes of such opinion, such counsel may assume that when such payment,
delivery, registration and crediting occur, (x) such Shares will have been registered in the name
of Cede or another nominee designated by DTC, in each case on the Company’s share registry in
accordance with its certificate of incorporation and applicable law, (y) DTC is a “securities
intermediary” within the meaning of Section 8-102 of the UCC and (z) DTC indicates by book entries
on its books that security entitlements with respect to the Shares have been credited to the
accounts of the several Underwriters.
In rendering the opinion in paragraph (iv), such counsel may rely upon a certificate of such
Selling Stockholder in respect of matters of fact as to ownership of, and liens, encumbrances,
equities or claims on, the Shares sold by such Selling Stockholder, provided that such counsel
shall state that they believe that both you and they are justified in relying upon such
certificate;
(e) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the execution of this Agreement
is attached as Annex I(a) hereto and a draft of the form of letter to be delivered on the effective
date of any post-effective amendment to the Registration Statement and as of each Time of Delivery
is attached as Annex I(b) hereto);
24
(f) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included in the Pricing Prospectus any 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 Pricing Prospectus, and (ii) since the respective dates as
of which information is given in the Pricing Prospectus there shall not have been any change in the
capital stock (other than as a result of the exercise of options or warrants or the grant of
options or stock awards in the ordinary course of business pursuant to the Company’s stock plans as
described in the Pricing Prospectus; and the repurchase of shares of common stock pursuant to
vesting arrangements or rights of first refusal in accordance with agreements governing such stock,
as described in the Pricing Prospectus) or change in the long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders’ equity or results of operations
of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities, if any, by any “nationally recognized statistical rating
organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s debt securities;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or on NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on
NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or
New York or California State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being
25
delivered at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(i) The Shares to be sold at such Time of Delivery shall have been duly listed, subject to
notice of issuance, for quotation on NASDAQ;
(j) The Company shall have obtained and delivered to the Underwriters executed copies of an
agreement from each of the Company’s securityholders, substantially in the form attached as Annex
III hereto (the “Stockholder Lock-Up Agreements”);
(k) The Company shall have complied with the provisions of Section 7(c) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(l) The Company and each of the Selling Stockholders shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of the Company and each of the
Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations
and warranties of the Company and each of the Selling Stockholders, respectively, herein at and as
of such Time of Delivery, as to the performance by the Company and each of the Selling Stockholders
of all of their respective obligations hereunder to be performed at or prior to such Time of
Delivery, and the Company shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (f) of this Section and as to such other matters as you
may reasonably request; and
(m) The Company shall have completed its reincorporation in the State of Delaware.
11. (a) The Company and L. Xxxxxxx Xxxxxxx, jointly and severally will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment
or supplement thereto, any Issuer Free Writing Prospectus, any “road show” (as defined in Rule 433
under the Act) not constituting an Issuer Free Writing Prospectus (a “Non-Prospectus Road Show”) or
any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and such Selling
26
Stockholders shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus or Non-Prospectus Road Show, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx, Sachs & Co. expressly for
use therein; provided, however, that the aggregate liability of Xx. Xxxxxxx pursuant to this
Section 11(a) and Section 12(a) shall not exceed the product of the number of Shares sold by Xx.
Xxxxxxx and the initial public offering price of the Shares as set forth in the Prospectus.
(b) Each Selling Stockholder (other than Xx. Xxxxxxx), severally and not jointly, will
indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing Prospectus or Non-Prospectus Road
Show, or any amendment or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged omission was made in
the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus,
or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or Non-Prospectus
Road Show, in reliance upon and in conformity with written information furnished to the Company by
such Selling Stockholder expressly for use therein; and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided, however, that the
aggregate liability of such Selling Stockholder pursuant to this Section 11(b) and Section 12(a)
shall not exceed the product of the number of Shares sold by such Selling Stockholder and the
initial public offering price of the Shares as set forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company and each Selling Stockholder
against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder
may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
27
amendment or supplement thereto, or any Issuer Free Writing Prospectus or Non-Prospectus Road
Show, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus or Non-Prospectus Road Show, in reliance
upon and in conformity with written information furnished to the Company by such Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein; and will reimburse the Company or such
Selling Stockholder for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a) through (c) above of
notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(e) If the indemnification provided for in this Section 11 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a) through
28
(c) above in respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) 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 from the offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Stockholders on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Selling Stockholders on the one hand or the Underwriters on the other and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, each of the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this subsection (e) were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
29
misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this Section 11 shall be
in addition to any liability which the Company and the respective Selling Stockholders may
otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter or the QIU within the meaning of the Act and each broker-dealer affiliate
of any Underwriter; and the obligations of the Underwriters under this Section 11 shall be in
addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as about to become a
director of the Company) and to each person, if any, who controls the Company or any Selling
Stockholder within the meaning of the Act.
12. (a) The Company and each of the Selling Stockholders, jointly and severally will
indemnify and hold harmless Xxxxxxx, Xxxxx & Co., in its capacity as QIU, against any losses,
claims, damages or liabilities, joint or several, to which the QIU may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus, any Non-Prospectus Road Show or any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Act, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading or (iii) any act or omission to act or any alleged act or omission to act by Xxxxxxx,
Sachs & Co. as QIU in connection with any transaction contemplated by this Agreement or undertaken
in preparing for the purchase, sale and delivery of the Shares, except as to this clause (iii) to
the extent that any such loss, claim, damage or liability results from the gross negligence or bad
faith of Xxxxxxx, Xxxxx & Co. in performing the services as QIU, and will reimburse the QIU for any
legal or other expenses reasonably incurred by the QIU in connection with investigating or
defending any such action or claim as such expenses are incurred; provided, however, that the
aggregate liability under this subsection (a) and Section 11 of each Selling Stockholder shall not
exceed the product of the number of Shares sold by such Selling Stockholder and the initial public
offering price of the Shares as set forth in the Prospectus. For each Selling Stockholder other
than L. Xxxxxxx Xxxxxxx, the indemnity provided for in this subsection (a) shall apply only to the
extent that any such untrue statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus,
30
or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or
Non-Prospectus Road Show, in reliance upon and in conformity with written information furnished to
the Company by such Selling Stockholder expressly for use therein.
(b) Promptly after receipt by the QIU under subsection (a) above of notice of the commencement
of any action, the QIU shall, if a claim in respect thereof is to be made against the Company under
such subsection, notify the Company in writing of the commencement thereof; but the omission so to
notify the Company shall not relieve it from any liability which it may have to the QIU otherwise
than under such subsection. In case any such action shall be brought against the QIU and it shall
notify the Company of the commencement thereof, the Company shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to the QIU (who shall not,
except with the consent of the QIU, be counsel to the Company), and, after notice from the
indemnifying party to the QIU of its election so to assume the defense thereof, the indemnifying
party shall not be liable to the QIU under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by the QIU, in connection with the
defense thereof other than reasonable costs of investigation. The Company shall not, without the
written consent of the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the QIU is an actual
or potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the QIU from all liability arising out of such action or claim
and (ii) does not include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of QIU.
(c) If the indemnification provided for in this Section 12 is unavailable to or insufficient
to hold harmless Xxxxxxx, Sachs & Co., in its capacity as QIU, under subsection (a) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to
therein, then the Company shall contribute to the amount paid or payable by the QIU as a result of
such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the one hand and the QIU
on the other from the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the QIU failed to give the
notice required under subsection (b) above, then the Company shall contribute to such amount paid
or payable by the QIU in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the QIU on the other in
connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the
31
Company on the one hand and the QIU on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received by the Company, as
set forth in the table on the cover page of the Prospectus, bear to the fee payable to the QIU
pursuant to Section 5 hereof. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company on the one
hand or the QIU on the other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and the QIU agree that
it would not be just and equitable if contributions pursuant to this subsection (c) were determined
by pro rata allocation or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (c). The amount paid or payable by
the QIU as a result of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (c) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(d) The obligations of the Company under this Section 12 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the QIU within the meaning of the Act.
13. (a) If any Underwriter shall default in its obligation to purchase the Shares which it
has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you
or another party or other parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company and the Selling Stockholders shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective prescribed periods,
you notify the Company and the Selling Stockholders that you have so arranged for the purchase of
such Shares, or the Company and the Selling Stockholders notify you that they have so arranged for
the purchase of such Shares, you or the Company and the Selling Stockholders shall have the right
to postpone such Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or
in any other documents or arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term “Underwriter” as used in this Agreement shall include any person
substituted under this Section
32
with like effect as if such person had originally been a party to this Agreement with respect
to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company and the Selling Stockholders as provided in
subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company and the Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at
such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder)
of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company and the Selling Stockholders as provided in
subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, or
if the Company and the Selling Stockholders shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the Second Time of Delivery, the obligations
of the Underwriters to purchase and of the Company and the Selling Stockholders to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholders, except for the expenses to be borne by the
Company and the Selling Stockholders and the Underwriters as provided in Section 9 hereof and the
indemnity and contribution agreements in Sections 11 and 12 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
14. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Selling Stockholders and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or
the Company, or any of the Selling Stockholders, or any officer or director or controlling person
of the Company, or any controlling person of any Selling Stockholder, and shall survive delivery of
and payment for the Shares.
15. If this Agreement shall be terminated pursuant to Section 13 hereof, neither the Company
nor the Selling Stockholders shall then be under any liability
33
to any Underwriter except as provided in Sections 9, 11 and 12 hereof; but, if for any other
reason, any Shares are not delivered by or on behalf of the Company and the Selling Stockholders as
provided herein, the Company and each of the Selling Stockholders pro rata (based on the number of
Shares to be sold by the Company and such Selling Stockholder hereunder) will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for
the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter except as provided in
Sections 9, 11 and 12 hereof.
16. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of
you as the representatives.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of Xxxxxxx, Sachs & Co., Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if to any Selling Stockholder shall be
delivered or sent by mail, telex or facsimile transmission to counsel for such Selling Stockholder
at its address set forth on Schedule II hereto; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in the Registration
Statement, Attention: Chief Financial Officer and General Counsel; provided, however, that any
notice to an Underwriter pursuant to Section 11(c) hereof or to the QIU pursuant to Section 12(b)
hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at
its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by you upon request; provided, however, that notices
under subsection 6(e) shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to you as the representatives at Xxxxxxx, Xxxxx & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Control Room. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
17. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and the Selling Stockholders and, to the extent provided in Sections 11,
12 and 14 hereof, the officers and directors of the Company and each person who controls the
Company, any Selling Stockholder, the QIU or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. No purchaser of any of the
34
Shares from any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
18. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
19. The Company and the Selling Stockholders acknowledge and agree that (i) the purchase and
sale of the Shares pursuant to this Agreement is an arm’s-length commercial transaction between the
Company and the Selling Stockholders, on the one hand, and the several Underwriters, on the other,
(ii) in connection therewith and with the process leading to such transaction each Underwriter is
acting solely as a principal and not the agent or fiduciary of the Company or the Selling
Stockholders, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of
the Company or the Selling Stockholders with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company or the Selling Stockholders on other matters) or any other obligation to the
Company or the Selling Stockholders except the obligations expressly set forth in this Agreement
and (iv) the Company and the Selling Stockholders have consulted their own legal and financial
advisors to the extent they deemed appropriate. The Company and the Selling Stockholders agree
that they will not claim that the Underwriters, or any of them, has rendered advisory services of
any nature or respect, or owes a fiduciary or similar duty to the Company or the Selling
Stockholders, in connection with such transaction or the process leading thereto.
20. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, the Selling Stockholders and the Underwriters, or any of them, with
respect to the subject matter hereof.
21. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
22. The Company, the Selling Stockholders and each of the Underwriters hereby irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the transactions contemplated
hereby.
23. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
24. Notwithstanding anything herein to the contrary, the Company and the Selling Stockholders
are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential
35
transaction and all materials of any kind (including tax opinions and other tax analyses)
provided to the Company or the Selling Stockholders relating to that treatment and structure,
without the Underwriters imposing any limitation of any kind. However, any information relating to
the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not
apply) to the extent necessary to enable any person to comply with securities laws. For this
purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
36
If the foregoing is in accordance with your understanding, please sign and return to us six
(6) counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among
each of the Underwriters, the Company and each of the Selling Stockholders. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the
Company and the Selling Stockholders for examination upon request, but without warranty on your
part as to the authority of the signers thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling
Stockholder represents by so doing that such person has been duly appointed as Attorney-in-Fact by
such Selling Stockholder pursuant to a validly existing and binding Power-of-Attorney which
authorizes such Attorney-in-Fact to take such action.
37
Very truly yours, Glu Mobile Inc. |
||||
By: | ||||
Name: | ||||
Title: | ||||
[Names of Selling Stockholders] |
||||
By: | ||||
Name: | ||||
Title: | ||||
As | Attorney-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule II to this Agreement. |
|||
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.,
Xxxxxx Brothers Inc.
Xxxxxxx & Company, LLC
Banc of America Securities LLC
Xxxxxx Brothers Inc.
Xxxxxxx & Company, LLC
Banc of America Securities LLC
By: |
||||
On behalf of each of the Underwriters |
38
SCHEDULE I
Number of Optional | ||||
Shares to be | ||||
Total Number of | Purchased if | |||
Firm Shares to be | Maximum Option | |||
Underwriter | Purchased | Exercised | ||
Xxxxxxx, Sachs & Co. |
||||
Xxxxxx Brothers Inc. |
||||
Xxxxxxx & Company, LLC |
||||
Banc of America Securities LLC |
||||
Total
|
||||
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SCHEDULE II
Number of Optional | ||||||||
Shares to be | ||||||||
Total Number of | Sold if | |||||||
Firm Shares | Maximum Option | |||||||
to be Sold | Exercised | |||||||
The Company |
||||||||
The Selling Stockholders: |
||||||||
[Name] |
0 | |||||||
Total |
||||||||
(a) | The Selling Stockholders are represented by [Fenwick & West, LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000] and have appointed L. Xxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxxx, and each of them, as the Attorneys-in-Fact for each of the Selling Stockholders. |
40
SCHEDULE III
(a) Pricing Information:
1. | Price per Share to the Public: [ ] | ||
2. | Number of Shares Sold: [ ] |
(b) Issuer Free Writing Prospectuses:
1. | Electronic Roadshow as filed on xxxxxxxxxxx.xxx | ||
2. | Electronic Roadshow as filed on xxxxxxxxxxxxxx.xxx |
(c) Additional Documents Incorporated by Reference:
41