] SHARES DIGITALGLOBE, INC. COMMON STOCK (PAR VALUE $0.001 PER SHARE) UNDERWRITING AGREEMENT
Exhibit 1.1
[ ] SHARES
DIGITALGLOBE, INC.
COMMON STOCK (PAR VALUE $0.001 PER SHARE)
May [ ], 2009
May [ ], 2009
Xxxxxx Xxxxxxx & Co. Incorporated
X.X. Xxxxxx Securities Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
DigitalGlobe, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the
several Underwriters named in Schedule II hereto (the “Underwriters”), and certain shareholders of
the Company (the “Selling Stockholders”) named in Schedule I hereto severally propose to sell to
the several Underwriters an aggregate of [ ] shares of Common Stock, par value $0.001 of the
Company (the “Firm Shares”), of which [ ] shares are to be issued and sold by the Company and [ ]
shares are to be sold by the Selling Stockholders, each Selling Stockholder selling the amount set
forth opposite such Selling Stockholder’s name in Schedule I hereto.
The Company also proposes to issue and sell to the several Underwriters not more than an
additional [ ] shares of its Common Stock, par value $0.001 (the “Additional Shares”) if and to
the extent that you, as managers of the offering, shall have determined to exercise, on behalf of
the Underwriters, the right to purchase such shares of Common Stock granted to the Underwriters in
Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred
to as the “Shares.” The shares of Common Stock, par value $0.001 of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to as the “Common
Stock.” The Company and the Selling Stockholders are hereinafter sometimes collectively referred
to as the “Sellers.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, relating to the Shares. The registration statement
as amended at the time it becomes effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the
“Registration Statement”; the prospectus in the form first used to confirm sales of Shares (or in
the form first made available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Prospectus.” If
the Company has filed an abbreviated registration statement to register additional shares of Common
Stock
pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then
any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462
Registration Statement.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule
405 under the Securities Act, “Time of Sale Prospectus” means the preliminary prospectus together
with the free writing prospectuses, if any, each identified in Schedule III hereto, and “broadly
available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under
the Securities Act that has been made available without restriction to any person. As used herein,
the terms “Registration Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any, incorporated by reference therein.
1. Representations and Warranties of the Company. The Company represents and warrants to and
agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus
does not, and at the time of each sale of the Shares in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in
Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, (iv) each broadly available road show, if any, when considered together
with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit
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 (v) the Prospectus does not contain
and, as amended or supplemented, if applicable, will
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not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions in
the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule III hereto, and electronic road shows, if any, each furnished to you before
first use, the Company has not prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock of each subsidiary of the
Company have been duly and
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validly authorized and issued, are fully paid and non-assessable and,
except as described in the Time of Sale Prospectus, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company will, on the Closing Date (as defined in
Section 5), conform as to legal matters to the description thereof contained in each of the Time of
Sale Prospectus and the Prospectus.
(h) The shares of Common Stock (including the Shares to be sold by the Selling Stockholders)
outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized
and are validly issued, fully paid and non-assessable.
(i) The Shares to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar
rights.
(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) any
provision of the certificate of incorporation or by-laws of the Company, (iii) any agreement or
other instrument binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary, except,
in the case of clauses (i), (iii) and (iv) above, where such contravention would not, singly or in
the aggregate, have a material adverse effect on the Company or on the power and ability of the
Company to perform its obligations under this Agreement or to consummate the transactions
contemplated by the Time of Sale Prospectus. No consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the Shares and except for
any such consents, approvals, authorizations, orders or qualifications, the absence of which would
not, singly or in the aggregate, have a material adverse effect on the Company or on the power or
ability of the Company to perform its obligations under the Agreement or to consummate the
transactions contemplated by the Time of Sale Prospectus.
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(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties of the Company or any of
its subsidiaries is subject (i) other
than proceedings that would not be reasonably expected to have a material adverse effect on
the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under this Agreement or to consummate the transactions contemplated by the
Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or
the Prospectus and are so described; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
(o) except as described in the Time of Sale Prospectus, the Company and the Subsidiaries have
filed with the U.S. Federal Communications Commission (the “FCC”) and the International
Telecommunication Union (the “ITU”), all reports, documents, instruments, information and
applications required to be filed pursuant to the rules and regulations of the FCC and the ITU, and
have obtained all licenses, orders or other authorizations issued by the FCC and the ITU, and any
equivalent authority in each other jurisdiction in which the Company operates (collectively, the
“Communications Licenses”) required for the operation of the business of the Company and the
Subsidiaries, and such Communications Licenses are in full force and effect and, to the Company’s
knowledge, there are no pending modification, amendment or revocation proceedings initiated by the
FCC or the ITU, or any equivalent authority in any other jurisdiction in which the Company operates
which, if determined against the
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Company, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole; fees due and payable to domestic and foreign governmental
authorities pursuant to the rules governing Communications Licenses held by the Company and its
subsidiaries, the nonpayment of which, with the giving of notice or the lapse of time or both would
constitute grounds for revocation thereof, have been timely paid and, except as disclosed in the
Time of Sale Prospectus, each of the Company and its subsidiaries is in compliance in all material
respects with the terms of the Communications Licenses, as applicable, and there is no condition of
which the Company or any of its subsidiaries has received notice, nor, to the Company’s knowledge,
is there any proceeding threatened, by any domestic or foreign governmental authority, which would
cause the termination, suspension, cancellation or non-renewal of any of the Communications
Licenses, or the imposition of a penalty or fine by any domestic or foreign regulatory authority,
which such termination, cancellation, non-renewal, penalty or fine, would have a material adverse
effect on the Company and its subsidiaries, taken as a whole; the Company and its subsidiaries have
all necessary consents, authorizations and approvals to utilize the Communications Licenses in the
manner and for the purposes described in the Time of Sale Prospectus and the Prospectus, except
where the failure to have a consent, authorization or approval would not, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
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(r) Except as described in the Time of Sale Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect to any securities of
the Company or to require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(s) Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any
director, officer, employee, agent or representative acting on behalf of the Company or of any of
its subsidiaries, has taken any action in furtherance of an offer, payment, promise to pay, or
authorization or approval of the payment or giving of money, property, gifts or anything else of
value, directly or indirectly, to any “government official” (including any officer or
employee of a government or government-owned or controlled entity or of a public international
organization, or any person acting in an official capacity for or on behalf of any of the
foregoing, or any political party or party official or candidate for political office) to influence
official action or secure an improper advantage that would constitute a violation of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”);
and the Company and its subsidiaries have conducted their businesses in compliance with the FCPA
and have instituted and maintain policies and procedures designed to promote and achieve compliance
with such laws.
(t) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting
requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions
where the Company and its subsidiaries conduct business, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(u) (i) Neither the Company nor any of its subsidiaries (collectively, the “Entity”) or, to
the knowledge of the Entity, any director, officer, employee, agent, affiliate or representative
acting on behalf of the Entity, is an individual or entity (“Person”):
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(A) currently the subject of any sanctions administered or enforced by the
U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) , the
United Nations Security Council (“UNSC”), the European Union (“EU”), Her
Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively,
“Sanctions”), nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Entity will not, directly or indirectly, use the proceeds of the offering of the
Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
(iii) The Company represents and covenants that for the past 5 years, it has not knowingly
engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions
with any Person, or in any country or territory, that at the time of the dealing or transaction is
or was the subject of Sanctions.
(v) Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction; (ii) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term debt of the Company and its
subsidiaries, except in each case as described in each of the Registration Statement, the Time of
Sale Prospectus and the Prospectus, respectively.
(w) The Company and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them which is material to
the business of the Company and its
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subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Time of Sale 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 interfere
with the use made and proposed to be made of such property and buildings by the Company and its
subsidiaries, in each case except as described in the Time of Sale Prospectus and the Prospectus.
(x) The Company and its subsidiaries own or possess, or, to the knowledge of the Company, it
or its subsidiaries can acquire on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks, service marks and
trade names 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 on the Company and its subsidiaries, taken as a whole.
(y) No material labor dispute with the employees of the Company or any of its subsidiaries
exists, except as described in the Time of Sale Prospectus, 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 could have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(z) The Company and each of its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; neither the Company nor any of its subsidiaries has been
refused any insurance coverage sought or applied for; 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
on the Company and its subsidiaries, taken as a whole, except as described in the Time of Sale
Prospectus.
(aa) The Company and its subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign
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regulatory authorities necessary to conduct
their respective businesses, except as would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole and neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus.
(bb) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences. Except as described in the Time of Sale Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (ii) no change in the
Company’s internal control over financial reporting that has materially adversely affected, or is
reasonably likely to materially adversely affect, the Company’s internal control over financial
reporting.
(cc) Except as described in the Time of Sale Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock option plans or other
employee compensation plans or pursuant to outstanding options, rights or warrants.
2. Representations and Warranties of the Selling Stockholders. Each Selling Stockholder,
severally and not jointly, represents and warrants to and agrees with each of the Underwriters
that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such
Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such
Selling Stockholder of its obligations under, this Agreement,
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the Custody Agreement signed by such
Selling Stockholder and American Stock Transfer, as Custodian, relating to the deposit of the
Shares to be sold by such Selling Stockholder (the “Custody Agreement”) and the Power of Attorney
appointing certain individuals as such Selling Stockholder’s attorneys-in-fact to the extent set
forth therein, relating to the transactions contemplated hereby and by the Registration Statement
(the “Power of Attorney”) will not contravene (i) any provision of applicable law, (ii) the
certificate of incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is
a corporation), (iii) any agreement or other instrument binding upon such Selling Stockholder that
is material to such Selling Stockholder or (iv) any judgment, order or decree of any governmental
body, agency or court having jurisdiction over such Selling Stockholder, except, in the case of
clauses (i), (iii) and (iv) above, where such contravention would not, singly or in the aggregate,
have a material adverse effect on the Selling Stockholder or on the power and ability of the
Selling Stockholder to perform its obligations under this Agreement, the Custody Agreement or the
Power of Attorney to consummate the transactions contemplated by the Time of Sale Prospectus. No
consent, approval, authorization or order of, or qualification with, any governmental body or
agency is required for the performance by such Selling Stockholder of its obligations under this
Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as
may
be required by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Shares and except for any consents, approvals, authorizations, orders or
qualifications, the absence of which would not, singly or in the aggregate, have a material adverse
effect on such Selling Stockholder or on the power or ability of such Selling Stockholder to
perform its obligations under the Agreement or to consummate the transactions contemplated by the
Time of Sale Prospectus.
(c) Such Selling Stockholder has, and on the Closing Date will have, valid title to, or a
“security entitlement” within the meaning of Section 8-501(b) of the New York Uniform Commercial
Code in respect of, the Shares to be sold by such Selling Stockholder free and clear of all
security interests, claims, liens, equities or other encumbrances and the legal right and power,
and all authorization and approval required by law, to enter into this Agreement, the Custody
Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such
Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and
delivered by such Selling Stockholder and are valid and binding agreements of such Selling
Stockholder.
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(e) Upon payment by the Underwriters for the Shares to be sold by such Selling Shareholder
pursuant to the terms of 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”), on behalf of DTC, registration of such Shares in the name of Cede or such other nominee on
the Company’s share registry, and the crediting of such Shares on the books of DTC to securities
accounts of the Underwriters maintained at DTC (assuming that neither DTC nor any such Underwriter
has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform
Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such
Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501(b) of the UCC, the
Underwriters will acquire a security entitlement in respect of such Shares and (C) no action based
on any adverse claim 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 and crediting occur, (x) such Shares will have been registered in the
name of Cede or such other nominee designated by DTC, in each case on the Company’s share registry
in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be
registered as a “clearing agency” as such term is used in clause 1 of Section 8-102(a)(5) of the
UCC and (z) appropriate book entries crediting the Shares to the securities accounts of the several
Underwriters maintained at DTC will have been made on the records of DTC pursuant to Section
8-501(b)(1) of the
UCC. As used in this Section 2(f), the terms “delivery,” “securities account,” “protected
purchaser,” “security entitlement” and “adverse claim” have the meanings given them in Article 8 of
the UCC.
(f) Such Selling Stockholder is not prompted by any information concerning the Company or its
subsidiaries which is not set forth in the Time of Sale Prospectus and the Prospectus to sell its
Shares pursuant to this Agreement.
3. Agreements to Sell and Purchase. Each Seller, severally and not jointly, hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $[ ] a share (the “Purchase Price”) the number of
Firm Shares (subject to such adjustments to eliminate fractional shares as you may determine) that
bears the same proportion to the number of Firm Shares to be sold by such Seller as the number of
Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to
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the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to [ ] Additional
Shares at the Purchase Price. You may exercise this right on behalf of the Underwriters in whole
or from time to time in part by giving written notice not later than 30 days after the date of this
Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such shares are to be purchased. Each purchase date must be
at least one business day after the written notice is given and may not be earlier than the closing
date for the Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 5 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Shares. On each day, if
any, that Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the same proportion to
the total number of Additional Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated and X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, it will not, during the
period ending 180 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise or (3) file any registration statement
with the Commission relating to the offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security granted under employee stock plans existing on
the date hereof or otherwise outstanding on the date hereof, grants of employee stock options or
restricted stock in accordance with the terms of a plan in
effect on the date hereof, (c) the
filing of a registration statement with the Commission on Form S-8 relating to the offering of
securities in accordance with the terms of a plan in
13
effect on the date hereof, (d) the issuance by
the Company of up to the number of shares representing 10% of the total number of outstanding
shares of the Common Stock (or options, warrants or convertible securities relating to shares of
Common Stock) in connection with bona fide mergers or acquisitions, joint ventures, commercial
relationships or other strategic transactions, provided that the acquiree of any such shares of
Common Stock (or options, warrants or convertible securities relating to shares of Common Stock) so
issued enters into an agreement in the form of Exhibit A hereto with respect to such shares of
Common Stock (or options, warrants or convertible securities relating to shares of Common Stock)
for the remainder of the 180 day restricted period and possible extension of such period described
below in this paragraph, (e) transactions by a Selling Stockholder relating to shares of Common
Stock or other securities acquired in open market transactions after the completion of the offering
of the Shares, provided that no filing under Section 16(a) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with
subsequent sales of Common Stock or other securities acquired in such open market transactions, (f)
transfers by a Selling Stockholder of shares of Common Stock or any security convertible into
Common Stock as a bona fide gift or gifts, (g) transfers of shares of Common Stock or any security
convertible into Common Stock to any trust for the direct or indirect benefit of the Selling
Stockholder or his/her immediate family, (h) transfers of shares of Common Stock or any security
convertible into Common Stock by testate or intestate succession, (i) distributions by a Selling
Stockholder of shares of Common Stock or any security convertible into Common Stock to limited
partners, members or stockholders of the Selling Stockholder or transfers to any corporation,
partnership or other business entity that is a direct or indirect affiliate of the Selling
Stockholder, (j) transfers of shares to any corporation, partnership
or other business entity with whom the Selling Stockholder shares in common an investment
manager or advisor, in each case who has investment discretionary authority with respect to the
Selling Stockholder’s and such entity’s investments pursuant to an investment management,
investment advisory or similar agreement; provided that in the case of any transfer or distribution
pursuant to clause (f) through (j), (x) each donee, distributee or transferee shall enter into a
written agreement accepting the restrictions set forth in the preceding paragraph and this
paragraph as if it were a Selling Stockholder and (y) no filing under Section 16(a) of the Exchange
Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or
shall be voluntarily made in respect of the transfer or distribution during the 180 day restricted
period, or (k) the establishment of a trading plan pursuant to Rule 10b5-1 under the Securities
Exchange Act of 1934, as amended, for the transfer of shares of Common Stock, provided that such
plan does not provide for the transfer of Common Stock during the 180 day restricted period. For
purposes of this agreement, “immediate family” shall mean any relationship by blood, marriage or
adoption, not more
14
remote than first cousin. In addition, each Selling Stockholder, agrees that,
without the prior written consent of Xxxxxx Xxxxxxx and X.X. Xxxxxx Securities Inc. on behalf of
the Underwriters, it will not, during the period ending 180 days after the date of the Prospectus,
make any demand for, or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable for Common Stock.
Each Selling Stockholder consents to the entry of stop transfer instructions with the Company’s
transfer agent and registrar against the transfer of any Shares held by such Selling Stockholder
except in compliance with the foregoing restrictions.
Notwithstanding the foregoing, if (1) during the last 17 days of the 180 day restricted period
the Company issues an earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the 180 day restricted period, the Company announces that
it will release earnings results during the 16 day period beginning on the last day of the 180 day
period, the restrictions imposed by this agreement shall continue to apply until the expiration of
the 18 day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event. The Company shall promptly notify Xxxxxx Xxxxxxx & Co.
Incorporated and X.X. Xxxxxx Securities Inc. of any earnings release, news or event that may give
rise to an extension of the initial 180 day restricted period.
In addition, each Selling Stockholder agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated and X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, it will
not, during the period ending 180 days after the date of the Prospectus, make any demand for, or
exercise any right with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock. Each Selling Stockholder
consents to the entry of stop transfer instructions with the Company’s transfer
agent and registrar against the transfer of any Shares held by such Selling Stockholder except
in compliance with the restrictions contained in any agreement in the form of Exhibit A hereto
entered into by such Selling Stockholder with the Underwriters.
4. Terms of Public Offering. The Sellers are advised by you that the Underwriters propose to
make a public offering of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Sellers
are further advised by you that the Shares are to be offered to the public initially at $[ ] a
share (the “Public Offering Price”) and to certain dealers selected by you at a price that
represents a concession not in excess of $[ ] a share under the Public Offering Price, and that
any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $[ ] a
share, to any Underwriter or to certain other dealers.
15
5. Payment and Delivery. Payment for the Firm Shares to be sold by each Seller shall be made
to such Seller in Federal or other funds immediately available in New York City against delivery of
such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York
City time, on [ ], 2009, or at such other time on the same or such other date, not later than
[ ], 2009, as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall be made to the Company in Federal or other funds
immediately available in New York City against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 3 or at such other time on the same or
on such other date, in any event not later than [ ], 2009, as shall be designated in writing by
you.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly paid, against
payment of the Purchase Price therefor.
6. Conditions to the Underwriters’ Obligations. The obligations of the Sellers to sell the
Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for
the Shares on the Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than [ ] (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
16
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon his or her knowledge as to
proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, outside counsel for the Company, dated the Closing Date, substantially
in the form attached as Exhibit B hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Holme Xxxxxxx &
Xxxx LLP, counsel engaged by the Company to deliver an opinion in connection with the execution and
delivery by certain Selling Stockholders of this Agreement, the Custody Agreement and the Power of
Attorney, dated the Closing Date, substantially in the form attached as Exhibit C hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory
to the Underwriters.
The opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and Holme Xxxxxxx & Xxxx LLP
described in Sections 6(c) and 6(d) above shall be rendered to the Underwriters at the request of
the Company or one or more of the Selling Stockholders, as the case may be, and shall so state
therein.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters and
17
PricewaterhouseCoopers LLP, from PricewaterhouseCoopers LLP,
independent public accountants, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a
“cut-off date” not earlier than the date hereof.
(g) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you
and certain shareholders, officers and directors of the Company listed on Exhibit A-1 relating to
sales and certain other dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force and effect on the Closing
Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Shares.
7. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, five signed copies of the Registration Statement
(including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 7(e) or 7(f) below, as many copies of the
Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Subject to Section 7(e) below, before amending or supplementing the Registration
Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed amendment or supplement to which
you reasonably object, and to file with the Commission within the applicable period specified in
Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not
18
to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time
of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of
Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or
19
supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request; provided in no event shall the Company or
any of its subsidiaries be obligated to qualify to do business as a foreign corporation in any
jurisdiction where it is not already so qualified, to file any general consent to service of
process, or to subject itself to taxation in any jurisdiction where it is not already subject to
taxation..
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act (including, at the option of the Company,
Rule 158 under the Securities Act) and the rules and regulations of the Commission thereunder.
8. Expenses.
(a) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company’s counsel, the Company’s accountants in connection with the registration
and delivery of the Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time
of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company and amendments and supplements to any of the foregoing, including
all printing costs associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the reasonable cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale of the Shares under state
securities laws and all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(g) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
20
memorandum, (iv) all filing
fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to the Common Stock and
all costs and expenses incident to listing the Shares on the NYSE, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar
or depositary, (viii) the costs and expenses of the Company relating to investor presentations on
any “road show” undertaken in connection with the marketing of the offering of the Shares,
including, without limitation, expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show presentations with
the prior approval of the Company, and travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show, (ix) the document production charges and expenses associated with
printing this Agreement and (x) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section, Section 10 entitled “Indemnity and
Contribution” and the last paragraph of Section 12 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them, any advertising expenses connected with any offers they may
make. The Selling Stockholders covenant and agree with the several Underwriters (i) that they will
pay or cause to be paid all taxes incident to the sale and delivery of the Shares to be sold by
such Selling Stockholder to the Underwriters hereunder, and (ii) the underwriting discount
associated with the Shares to be sold by such Selling Stockholder hereunder shall be deducted from
the Selling Stockholders’ proceeds from the sale of such Shares.
(b) The provisions of this Section shall not supersede or otherwise affect any agreement that
the Sellers may otherwise have for the allocation of such expenses among themselves.
9. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free
writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be
required to be filed by the Company thereunder, but for the action of the Underwriter.
21
10. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter or Selling Stockholder, in
the case of the Underwriters, furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(b) Each Selling Stockholder, severally and not jointly, agrees to indemnify and hold harmless
each Underwriter, each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including , without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with reference to information
relating to such Selling Stockholder furnished to the Company in writing by such Selling
Stockholder expressly for use in the Registration Statement, any preliminary prospectus, the Time
of Sale Prospectus, any issuer free writing prospectus or the Prospectus or any amendment or
supplement thereto. The liability of each Selling
Stockholder under the indemnity agreement contained in this Section 10 shall be limited to an
amount equal to (i) the number of Shares sold by such Selling
22
Stockholder under this Agreement
multiplied by (ii) the Public Offering Price (minus related underwriting discounts and
commissions).
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Selling Stockholders, the directors of the Company, the officers of the Company who
sign the Registration Statement and each person, if any, who controls the Company or any Selling
Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment thereof, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined
in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only with reference to
information relating to such Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement, any preliminary prospectus, the Time
of Sale Prospectus, any issuer free writing prospectus or the Prospectus or any amendment or
supplement thereto.
(d) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 10(a), 10(b)
or 10(c), such person (the “indemnified party”) shall promptly notify the person against whom such
indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
23
respect of the legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any,
who control any Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule
405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within the meaning of
either such Section and (iii) the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and
such control persons and affiliates of any Underwriters, such firm shall be designated in writing
by Xxxxxx Xxxxxxx & Co. Incorporated and X.X. Xxxxxx Securities Inc. In the case of any such
separate firm for the Company, and such directors, officers and control persons of the Company,
such firm shall be designated in writing by the Company. In the case of any such separate firm for
the Selling Stockholders and such control persons of any Selling Stockholders, such firm shall be
designated in writing by the persons named as attorneys in fact for the Selling Stockholders under
the Powers of Attorney. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days’ prior written notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement (x) includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and (y) does not include a
24
statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(e) To the extent the indemnification provided for in Section 10(a), 10(b) or 10(c) is
unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause 10(e)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 10(e)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits received by the Sellers
on the one hand and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net proceeds from the
offering of the Shares (before deducting expenses) received by each Seller and the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Sellers or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Underwriters’ respective obligations to contribute pursuant to this Section 10 are several in
proportion to the respective number of Shares they have purchased hereunder, and not jointly.
(f) The Sellers and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 10 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 that
does not take account of the equitable considerations referred to in Section 10(e). The amount
paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 10(e) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
25
Notwithstanding the provisions of this
Section 10, 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 that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 10 are not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 10 and the
representations, warranties and other statements of the Company and the Selling Stockholders
contained in this Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter,
any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Stockholder
or any person controlling any Selling Stockholder or, the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of the Shares.
11. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
either the New York Stock Exchange and the NASDAQ Global Market, (ii) trading of any securities of
the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in the United States
shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared
by Federal or New York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, or any change in financial markets or any calamity or crisis that, in
your judgment, is material and adverse and which, singly or together with any other event specified
in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the
offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of
Sale Prospectus or the Prospectus.
12. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
26
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule II bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall
the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 12 by an amount in excess of one-ninth of such number of Shares
without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares
with respect to which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased on such date, and arrangements satisfactory to you, the Company and the
attorneys in fact for the Selling Stockholders for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Company or the Selling Stockholders. In any such case either
you or the relevant Sellers shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the Registration Statement,
in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Additional Shares to be purchased
on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date
or (ii) purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement (which, for the purposes of this Section 12, shall not include
termination by the
27
Underwriters under items (i), (iii), (iv) or (v) of Section 11), the Company
will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
13. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares,
represents the entire agreement between the Company and the Selling Stockholders, on the one
hand, and the Underwriters, on the other, with respect to the preparation of any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the
purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
14. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
15. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
17. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you in care of Xxxxxx
Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate
Desk, with a copy to the Legal Department; X.X. Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Equity Syndicate Desk (Fax: 000-000-0000), with a copy, in
the case of any notice pursuant to Section 10(c), to the Director of Litigation, Office of the
General Counsel, X.X. Xxxxxx Securities Inc. One Chase
00
Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (Fax:
000-000-0000); if to the Company shall be delivered, mailed or sent to DigitalGlobe, Inc., 0000 Xxx
Xxxxx Xxxxx Xxxxx 000, Xxxxxxxx, XX 00000; and if to the Selling Stockholders shall be delivered,
mailed or sent to [ ].
29
Very truly yours, DIGITALGLOBE, INC. |
||||
By: | ||||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Executive Vice President, Chief Financial Officer and Treasurer |
|||
The
Selling Stockholders named in Schedule I hereto, acting severally
By: | ||||
Xxxxxx X. Xxxxxxx | ||||
By: | ||||
J. Xxxxxx Xxxxxx |
||||
as Attorneys-in-Fact for each of the Selling Stockholders |
||||
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
X.X. Xxxxxx Securities Inc.
X.X. Xxxxxx Securities Inc.
Acting severally on behalf of themselves
and the several Underwriters named
in Schedule I hereto.
and the several Underwriters named
in Schedule I hereto.
By:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |||
By: |
||||
Title: |
By:
|
X.X. Xxxxxx Securities Inc. | |||
By: |
||||
Title: |
SCHEDULE II
Number of Firm | ||||
Shares To Be | ||||
Underwriter | Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
||||
X.X. Xxxxxx Securities Inc. |
||||
Citigroup Global Markets Inc. |
||||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
||||
Xxxxxxxxx & Company Inc. |
||||
Total: |
||||
C-1