Shares IntraLinks Holdings, Inc. Common Stock, par value $0.001 per share Underwriting Agreement
Exhibit 1.1
[_______________]
Shares
Common
Stock, par value $0.001 per share
[______________],
2010
[_______________],
2010
Xxxxxx
Xxxxxxx & Co. Incorporated
Deutsche
Bank Securities Inc.
Credit
Suisse Securities (USA) LLC
Acting
severally on behalf of themselves and
the
several Underwriters named in Schedule
I
hereto
|
c/o
|
Morgan
Xxxxxxx & Co. Incorporated
|
|
|
0000
Xxxxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Deutsche
Bank Securities Inc.
00
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Credit
Suisse Securities (USA) LLC
Eleven
Xxxxxxx Xxxxxx
|
Ladies
and Gentlemen:
IntraLinks
Holdings, Inc., a Delaware corporation (the “Company”), proposes to issue
and sell to the several Underwriters named in Schedule I hereto
(the “Underwriters”)
[__________] shares of its common stock, par value $0.001 per share (the “Firm Shares”). 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 per
share (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 2. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “Shares”. The shares
of common stock, par value $0.001 per share, of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to
as the “Common
Stock”.
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement on Form S-1 (File No. 333-165991), 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 Underwriting Agreement (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 II 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. The Company represents and warrants to and agrees
with each of the Underwriters that:
(a) The
Registration Statement has become effective; and no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or, to the Company’s knowledge, 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 4), 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 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 II 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.
2
(d) Since the
respective dates as of which information is given in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, there has not been 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 (a “Material Adverse Effect”), in
each case otherwise than as set forth or contemplated in the Time of Sale
Prospectus.
(e) The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, 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.
(f) Each
subsidiary of the Company has been duly incorporated (or formed), is validly
existing as a corporation (or other entity) in good standing (or, if in a
foreign jurisdiction, enjoys the equivalent status under the laws of the
jurisdiction of organization outside the United States) under the laws of the
jurisdiction of its incorporation (or formation), has the corporate (or other)
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; 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 are owned directly or indirectly by the
Company, and except with respect to a pledge of 100% of the equity interests in
the Company’s domestic subsidiaries and 65% of the equity interests in the
Company’s foreign subsidiaries to secure indebtedness under the Company’s credit
facilities as disclosed in the Time of Sale Prospectus, are free and clear of
all liens, encumbrances, equities or claims.
(g) This
Agreement has been duly authorized, executed and delivered by the
Company.
(h) The
authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the
Prospectus.
(i) The
shares of Common Stock outstanding prior to the issuance of the Shares have been
duly authorized and are validly issued, fully paid and non-assessable, and
conform as to legal matters to the description thereof contained in each of the
Time of Sale Prospectus and the Prospectus.
3
(j) The
Shares 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, will conform as to legal matters to the description thereof
contained in each of the Time of Sale Prospectus and the Prospectus, and the
issuance of such Shares will not be subject to any preemptive or similar
rights.
(k) The
Shares have been approved for listing on the New York Stock Exchange, subject to
notice of issuance.
(l) Neither
the Company nor any affiliate of the Company has taken, nor will the Company or
any affiliate take, directly or indirectly, any action that is designed to, that
has constituted or that would be expected to cause or result in stabilization or
manipulation of the price of any security of the Company in violation of any
applicable law to facilitate the sale or resale of the Shares.
(m) Except as
disclosed in the Time of Sale Prospectus, neither the Company nor any of its
subsidiaries is in (i) violation of its certificate of incorporation or bylaws
(or equivalent organizational documents) or (ii) default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any agreement or other
instrument binding upon the Company or any of its subsidiaries except where such
default would not have a Material Adverse Effect.
(n) The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene any provision of
applicable law, the certificate of incorporation or bylaws of the Company, 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 any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or filing or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, except for such consents, approvals,
authorizations, orders and qualifications as may be required by the securities
or blue sky laws and regulations of the various states in connection with the
offer and sale of the Shares.
(o) There are
no legal or governmental proceedings pending or, to the Company’s knowledge,
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 accurately described in all material respects in the
Time of Sale Prospectus and proceedings that would not have a Material Adverse
Effect or have a material adverse effect 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
not so described in all material respects; 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 in all material respects or filed
as required.
4
(p) (i) Each
preliminary prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto complied as to form, and (ii) the
preliminary prospectus forming part of the Time of Sale Prospectus, and the
Prospectus, filed pursuant to Rule 424 under the Securities Act, complied, in
each case when so filed, in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder.
(q) 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.
(r) 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.
(s) 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) that would, singly or in the aggregate, have a
Material Adverse Effect.
(t) 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.
(u) Neither
the Company nor any of its subsidiaries or affiliates, nor any director,
officer, or employee, nor, to the Company’s knowledge, any agent or
representative of the Company or of any of its subsidiaries or affiliates, has
taken or will take 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”) or any other applicable
anti-corruption laws; and the Company and its subsidiaries have conducted their
businesses in compliance with the FCPA and any other applicable anti-corruption
laws, and have instituted and maintain and will continue to maintain policies
and procedures designed to promote and achieve compliance with the FCPA and any
other applicable anti-corruption laws and with the representation and warranty
contained herein.
5
(v) 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 best knowledge of the Company, threatened.
(w) (i) The
Company represents that neither the Company nor any of its subsidiaries
(collectively, the “Entity”) or any director or
officer of the Entity, nor, to the knowledge of the Entity, any employee, agent,
affiliate or representative of the Entity, is an individual or entity (“Person”) that is, or is owned
or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control (“OFAC”) (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 represents and covenants that it will not, directly or indirectly, use
the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
Person:
(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
Entity represents and covenants that, for the past five 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.
6
(x) 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 liability or obligation,
direct or contingent, nor entered into any transaction, in each case, except in
the ordinary course of business that is not material to the Company and its
subsidiaries, taken as a whole, (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.
(y) The
Company and its subsidiaries do not own any real property. The
Company and its subsidiaries have good and marketable title to all personal
property owned by them that is material to the business of the Company and its
subsidiaries, taken as a whole, 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 personal property and do not
materially interfere with the use made and proposed to be made of such personal
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, in each
case except as described in the Time of Sale Prospectus.
(z) Except as
described in the Time of Sale Prospectus, the Company and its subsidiaries own
or possess, have the right to use, or can acquire on reasonable terms ownership
of or rights to use all: material patents, patent rights and inventions;
material works of authorship (including software) and copyrights; material
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures); and material
trademarks, service marks, trade names and trade dress (whether or not
registered) currently employed by them in connection with the business now
operated by them or that are necessary for the conduct of its businesses
described in the Prospectus (collectively, “Intellectual Property”); and neither
the Company nor any of its subsidiaries has, to its knowledge, received any
notice of any claim of infringement or violation of or conflict with asserted
rights of others with respect to any of the foregoing that, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect. Except for matters that would not,
individually or in the aggregate, have a Material Adverse Effect: (i) there is
no action, suit, proceeding or claim by the Company or any of its subsidiaries
pending or threatened against any third party based on the infringement by third
parties of any Intellectual Property owned by the Company or any of its
subsidiaries (“Company-Owned
Intellectual Property”); (ii) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by any third party
challenging the Company’s rights in or to any Intellectual Property; (iii) there
is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
Company-Owned Intellectual Property; (iv) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark, copyright,
trade secret or other intellectual property, privacy or proprietary rights of
any third party; (v) the Company and its contractors have not used any open
source software or other publicly available software (“Publicly Available Software”)
in whole or in part in the development of any part of the Company-Owned
Intellectual Property, nor licensed or distributed to any third party any
combination of Publicly Available Software and Company-Owned Intellectual
Property in a manner that (A) requires, or conditions the use or distribution of
any Company-Owned Intellectual Property on, the disclosure, licensing or
distribution of any source code for any portion of such Company-Owned
Intellectual Property or (B) otherwise impose any limitation, restriction or
condition on the right or ability of the Company to use or distribute any
Company-Owned Intellectual Property in any manner; and (vi) the Company and each
of its subsidiaries have complied and are presently in compliance with its
privacy policies and all laws and regulations applicable to it regarding the
collection, use, transfer, import, export, storage, protection, disposal and
disclosure by the Company and its subsidiaries of personally identifiable
information or other information relating to persons protected by
law.
7
(aa) 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 would have a Material
Adverse Effect.
(bb) The
Company and its subsidiaries, taken as a whole, 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 the Company, together with its
subsidiaries, has no 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.
(cc) The
Company and its subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, 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 that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect,
except as described in the Time of Sale Prospectus.
(dd) As of the
date of this Agreement, its subsidiaries and the composition of the Company’s
Board of Directors and committees thereof are in compliance in all material
respects with all applicable rules and regulations of the Xxxxxxxx-Xxxxx Act of
2002 and all applicable rules of the New York Stock Exchange.
(ee) The
Company and its subsidiaries maintain a system of internal 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 (A) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated)
and (B) 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. The Company maintains “disclosure controls and procedures”
(as such term is defined in Rule 13a-15(e) under the Securities Exchange Act of
1934, as amended (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 is made known to the
Company’s principal executive officer and principal financial officer by others
within those entities and that such disclosure controls and procedures are
effective.
8
(ff) The
financial statements (including the related notes) included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus comply in all material
respects with the requirements of the Securities Act and present fairly in all
material respects the consolidated financial condition, the consolidated results
of operations and the consolidated changes in cash flows of the Company and its
consolidated subsidiaries in conformity with generally accepted accounting
principles; the summary and selected historical financial data set forth in the
Registration Statement, the Time of Sale Prospectus and the Prospectus present
fairly in all material respects the information shown therein and have been
compiled on a basis consistent in all material respects with that of the audited
consolidated financial statements set forth in the Registration Statement, the
Time of Sale Prospectus and the Prospectus or the unaudited condensed
consolidated financial statements, as the case may be; and there are no other
financial statements or schedules required to be included in the Registration
Statement, the Time of Sale Prospectus or the Prospectus that are not so
included.
(gg) The pro
forma financial information included in the Registration Statement, the Time of
Sale Prospectus and the Prospectus has been prepared on a basis consistent with
the Company’s historical financial statements included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus (except for the pro
forma adjustments specified therein), includes all material adjustments to the
Company’s historical financial information required by Rule 11-02 of Regulation
S-X under the Securities Act and the Exchange Act to reflect the transactions
described in the notes to such financial information as of the respective dates
of such pro forma information and gives effect to assumptions made on a
reasonable basis. The assumptions used in preparing the pro forma
financial information included in the Registration Statement, the Time of Sale
Prospectus and the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts. No other pro forma financial statements or
information are required by the Securities Act or the Exchange Act to be
included or incorporated by reference in the Registration Statement, the Time of
Sale Prospectus or the Prospectus.
9
(hh) PricewaterhouseCoopers
LLP, whose reports are incorporated by reference into the Registration
Statement, is and, during the periods covered by their reports, was an
independent registered public accounting firm with respect to the Company as
required by the Securities Act and the published rules and regulations
thereunder adopted by the Commission and the Public Company Accounting Oversight
Board (United States).
(ii) The
statistical, market-related and industry-related data included in the
Registration Statement, the Time of Sale Prospectus and the Prospectus are based
on or derived from sources that the Company reasonably believes to be reliable
and accurate in all material respects.
(jj) Except as
set forth in or contemplated in the Time of Sale Prospectus, the Company and its
subsidiaries have filed all federal, state, local and foreign tax returns
required to be filed by them through the date of this Agreement or have
requested extensions thereof and, except for any tax that is currently being
contested in good faith, have paid all taxes required to be paid thereon to the
extent that such taxes are due and payable as of the date of this Agreement,
except where the failure to file any such return or pay any such tax would not
have a Material Adverse Effect.
(kk) 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
Regulation 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. Agreements to Sell and
Purchase. The Company 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 the Company, the respective
number of Firm Shares set forth in Schedule I hereto
opposite its name at $[_____] a share (the “Purchase Price”).
Upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, the Company agrees to sell to the several
Underwriters the Additional Shares, and the several 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 Additional 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 nor
later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in Section 4
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 I hereto
opposite the name of such Underwriter bears to the total number of Firm
Shares.
10
3. Terms of Public
Offering. The Company is 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 Company is 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.
4. Payment and
Delivery. Payment for the Firm Shares shall be made to the
Company 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 [__________], 2010, or at
such other time on the same or such other date, not later than [__________],
2010, as shall be designated in writing by you. The time and date of
such payment are herein 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 2, or at such other time on the same or on such other date, in any
event not later than [__________], 2010, 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 two full business
days 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.
5. Conditions to the Underwriters’
Obligations. The obligation of the Company to sell the Firm
Shares to the Underwriters and the several obligations of the Underwriters to
purchase and pay for the Firm Shares on the Closing Date are subject to the
condition that the Registration Statement shall have become effective not later
than [__:__][_].m. (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
11
(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 on behalf of the Company by an executive officer of the
Company, to the effect set forth in Section 5(a)(j) 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.
(c) The
Underwriters shall have received on the Closing Date an opinion of Xxxxxxx
Procter LLP, outside counsel for the Company, dated the Closing Date, to the
effect set forth in Exhibit B hereto.
With
respect to the negative assurance letter provided by Xxxxxxx Procter LLP, such
counsel may state that their opinions and beliefs are based upon their
participation in the preparation of the Registration Statement, the Time of Sale
Prospectus and the Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without independent check
or verification, except as specified. The opinion of Xxxxxxx Procter
LLP shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(d) The
Underwriters shall have received on the Closing Date an opinion of Xxxx Xxxxxx,
Esq., in-house counsel for the Company, dated the Closing Date, to the effect
set forth in Exhibit C hereto.
(e) The
Underwriters shall have received on the Closing Date an opinion of Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date,
satisfactory to the Underwriters.
(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, from PricewaterhouseCoopers
LLP, independent registered public accounting firm, 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.
12
(g) The
“lock-up” agreements, each substantially in the form of Exhibit A hereto,
between you and each stockholder, officer and director of the Company set forth
on Schedule III
hereto, 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 satisfaction of the conditions set forth in clauses (a)
through (g) of this Section 5, each as of the applicable Option Closing Date,
and 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.
6. Covenants of the
Company. The Company covenants with each Underwriter as
follows:
(a) To
furnish to you, without charge, four copies of the signed 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 the Underwriters 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 6(e) or Section 6(f), 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) 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 Rule 424(b) under the Securities
Act.
(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 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 that the Underwriter otherwise would
not have been required to file thereunder, but for the action of the
Company.
(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.
13
(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) under 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) under 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 supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) under 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 that the Company
shall not be required to (i) qualify as a foreign corporation or other entity or
as a dealer in securities in any such jurisdiction where it would not otherwise
be required to so qualify, (ii) file any general consent to service of process
in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(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 that shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
14
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, 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 and 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
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 6(g), 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 memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel for the Underwriters incurred in connection with the
review and qualification of the offering of the Shares by the Financial Industry
Regulatory Authority, Inc. (“FINRA”), (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 New York Stock Exchange, (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, (ix) one-half of the cost of any aircraft chartered
and any ground transportation used by the Company in connection with the road
show, (x) the document production charges and expenses associated with printing
this Agreement and (xi) 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 6(i). It is understood, however, that except as
provided in this Section 6(i), Section 8 entitled “Indemnity and Contribution”
and the last paragraph of Section 10, 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, and one-half of the cost of
any aircraft chartered in connection with the road show. It being
understood, however, that the fees and disbursements of counsel for the
Underwriters that the Company may be required to pay pursuant to clauses (iii)
and (iv) of this Section 6(i) (except, for the avoidance of doubt, (A) the 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, including filing fees, in connection with the qualification of the
Shares for offer and sale under state securities laws as provided in Section
6(g), and (B) all FINRA filing fees, which are subject to full payment by the
Company) shall not exceed $25,000 in the aggregate.
(j) Without
the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) on behalf of
the Underwriters, not to, during the period ending 180 days after the date of
the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant 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 (ii) 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 (i) above or clause (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise, or
(iii) 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.
15
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 outstanding on the date hereof
which are described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, (c) the grant by the Company of options to purchase Common
Stock or the issuance of shares of restricted Common Stock, each under existing
stock option plans in effect on the date hereof which are described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (d) the
conversion or exchange of a security outstanding on the date hereof which is
described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, (e) the establishment of a trading plan pursuant to Rule 10b5-1
under the Exchange Act 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, or (f) the filing of any registration statement on Form S-8
or a successor form with the Commission relating to any shares of Common Stock
issued or issuable under any employee benefit plans of the Company which are
described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus. 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 of any
earnings release, news or event that may give rise to an extension of the
initial 180-day restricted period.
(k) The
Company will apply the net proceeds of the Common Stock in accordance with its
statements under the caption “Use of Proceeds”.
7. 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) under the Securities Act a free
writing prospectus that otherwise would not be required to be filed by the
Company thereunder, but for the action of such Underwriter.
8. Indemnity and
Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, each partner,
member, director, officer, employee and agent of any 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 furnished to the Company in writing
by such Underwriter through you expressly for use therein.
16
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Underwriter, 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.
(c) 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 8(a) or Section 8(b), 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 reasonable and documented fees and disbursements of
such counsel related to such proceeding; provided that the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have under Section 8(a) or Section 8(b) except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under Section 8(a) or
Section 8(b). 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
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx, in the case of parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). 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 (A) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request and (B) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. 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 (i)
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding 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 an indemnified party.
17
(d) To the
extent the indemnification provided for in Section 8(a) or Section 8(b) 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 Company on the
one hand and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 8(d)(i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) but also the relative fault of
the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the offering
of the 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 the Company 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 Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company 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 8 are several in proportion to the
respective number of Shares they have purchased hereunder, and not
joint.
(e) The
Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 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 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) 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. Notwithstanding the provisions of this Section 8, 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 8 are not exclusive and shall not limit any rights
or remedies that may otherwise be available to any indemnified party at law or
in equity.
18
(f) The
indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company 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 or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
9. 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 of the New York Stock Exchange or 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 that, 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.
10. Effectiveness; Defaulting
Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
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 that 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 I 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 that 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 10 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 and the Company 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 or the
Company. In any such case either you or the Company 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.
19
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, 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.
11. 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 Underwriters 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.
20
12. 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.
13. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. 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.
15. 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
Deutsche
Bank Securities Inc.
00 Xxxx
Xxxxxx, 0xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
ECM Syndicate Desk (Fax: 000-000-0000)
with a
copy to the General Counsel (Fax: 000-000-0000)
Credit
Suisse Securities (USA) LLC
Eleven
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
LCD-IBD
with a
copy to (which shall not constitute notice):
Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxx, Esq.
21
and if to
the Company shall be delivered, mailed or sent to:
IntraLinks,
Inc.
000 Xxxx
00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xxxxxx, Esq.
with a
copy to (which shall not constitute notice):
Xxxxxxx
Procter LLP
The New
York Times Building
000
Xxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxx, Esq.
[Signature page
follows]
22
| Very truly yours, | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
Accepted
as of the date hereof:
Xxxxxx
Xxxxxxx & Co. Incorporated
Deutsche
Bank Securities Inc.
Credit
Suisse Securities (USA) LLC
|
||
|
Acting
severally on behalf of themselves and the
several Underwriters named in Schedule I hereto. |
|
By:
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
Deutsche
Bank Securities Inc.
|
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
Credit
Suisse Securities (USA) LLC
|
|
|
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
SCHEDULE
I
|
Underwriter
|
Number
of Firm Shares To Be Purchased
|
|
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
||
|
Deutsche
Bank Securities Inc.
|
||
|
Credit
Suisse Securities (USA) LLC
|
||
|
Xxxxxxxxx
& Company, Inc.
|
||
|
Pacific
Crest Securities LLC
|
||
|
Xxxxxx,
Xxxxxxxx & Company, Incorporated
|
||
|
Lazard
Capital Markets LLC
|
||
|
Total:
|
S-1-1
