EXHIBIT 32
______________________________________________________________________________
______________________________________________________________________________
MEMC ELECTRONIC MATERIALS, INC.
(a Delaware corporation)
57,000,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: February 17, 2005
______________________________________________________________________________
______________________________________________________________________________
Table of Contents
Page
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UNDERWRITING AGREEMENT.................................................................................1
SECTION 1. Representations and Warranties..........................................................3
(a) Representations and Warranties by the Company...........................................3
(i) Compliance with Registration Requirements......................................3
(ii) Incorporated Documents.........................................................4
(iii) Independent Accountants........................................................4
(iv) Financial Statements...........................................................4
(v) No Material Adverse Change in Business.........................................4
(vi) Good Standing of the Company...................................................5
(vii) Good Standing of Subsidiaries..................................................5
(viii) Capitalization.................................................................6
(ix) Authorization of Agreement.....................................................6
(x) Description of Securities......................................................6
(xi) Absence of Defaults and Conflicts..............................................6
(xii) Absence of Labor Dispute.......................................................6
(xiii) Absence of Proceedings.........................................................7
(xiv) Accuracy of Exhibits...........................................................7
(xv) Possession of Intellectual Property............................................7
(xvi) Absence of Further Requirements................................................7
(xvii) Possession of Licenses and Permits.............................................8
(xviii) Title to Property..............................................................8
(xix) Investment Company Act.........................................................8
(xx) Environmental Laws.............................................................8
(xxi) Statistical Data...............................................................9
(xxii) No Brokers' Fees...............................................................9
(xxiii) Registration Rights............................................................9
(xxiv) Related Party Transactions.....................................................9
(xxv) ERISA..........................................................................9
(xxvi) Tax Returns...................................................................10
(xxvii) Disclosure Controls and Procedures............................................10
(xxviii) Evaluation of Disclosure Controls and Procedures..............................10
(xxix) Absence of Significant Changes in Internal Controls...........................10
(xxx) Listing.......................................................................11
(xxxi) Internal Control..............................................................11
(b) Representations and Warranties by the Selling Stockholder..............................11
(i) Accurate Disclosure...........................................................11
(ii) Authorization of Agreements...................................................11
(iii) Good and Valid Title..........................................................12
(iv) Absence of Manipulation.......................................................12
(v) Absence of Further Requirements...............................................12
(c) Officer's Certificates.................................................................12
SECTION 2. Sale and Delivery to Underwriters; Closing.............................................12
(a) Initial Securities.....................................................................12
(b) Option Securities......................................................................13
(c) Payment................................................................................13
(d) Denominations; Registration............................................................14
SECTION 3. Covenants of the Company...............................................................14
(a) Compliance with Securities Regulations and Commission Requests.........................14
(b) Filing of Amendments...................................................................14
(c) Delivery of Registration Statements....................................................15
(d) Delivery of Prospectuses...............................................................15
(e) Continued Compliance with Securities Laws..............................................15
(f) Blue Sky Qualifications................................................................15
(g) Rule 158...............................................................................16
(h) Listing................................................................................16
(i) Restriction on Sale of Securities......................................................16
(j) Reporting Requirements.................................................................16
SECTION 4. Payment of Expenses....................................................................16
(a) Expenses...............................................................................16
(b) Termination of Agreement...............................................................17
SECTION 5. Conditions of Underwriters' Obligations................................................17
(a) Effectiveness of Registration Statement................................................17
(b) No Material Misstatement or Omission...................................................17
(c) Corporate Proceedings..................................................................18
(d) Opinion of Counsel for Company.........................................................18
(e) Opinion of Xxxxxxxx, Xxxxxx, Xxxxxxx & Xxxxxx..........................................18
(f) Opinion of Xxx, Xxxxx & Xxxxxxxx.......................................................18
(g) Opinion of Hwang Mok Park P.C..........................................................18
(h) Opinion of Studio Legale Tosato........................................................18
(i) Opinion of Counsel for the Selling Stockholder.........................................18
(j) Opinion of Counsel for Underwriters....................................................18
(k) Officers' Certificate..................................................................19
(l) Certificate of Selling Stockholder.....................................................19
(m) Accountant's Comfort Letter............................................................19
(n) Bring-down Comfort Letter..............................................................19
(o) No Objection...........................................................................19
(p) Lock-up Agreements.....................................................................20
(q) Conditions to Purchase of Option Securities............................................20
(r) No Material Adverse Change.............................................................21
(s) Additional Documents...................................................................21
(t) Termination of Agreement...............................................................21
SECTION 6. Indemnification........................................................................22
(a) Indemnification of Underwriters........................................................22
(b) Indemnification of Underwriters by the Selling Stockholder.............................23
(c) Indemnification of Company, Directors and Officers and Selling Stockholder.............24
(d) Actions against Parties; Notification..................................................24
(e) Information Furnished by Underwriters..................................................25
(f) Settlement without Consent if Failure to Reimburse.....................................25
(g) Other Agreements with Respect to Indemnification.......................................25
SECTION 7. Contribution...........................................................................25
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.........................27
SECTION 9. Termination of Agreement...............................................................27
(a) Termination; General...................................................................27
(b) Liabilities............................................................................27
SECTION 10. Default by One or More of the Underwriters.............................................28
SECTION 11. Default by the Selling Stockholder.....................................................28
SECTION 12. Notices................................................................................29
SECTION 13. Counterparts...........................................................................29
SECTION 14. Parties................................................................................29
SECTION 15. Governing Law and Time.................................................................29
SECTION 16. Effect of Headings.....................................................................29
SCHEDULES
Schedule 1 - The Underwriters..........................................................Sch 1-1
Schedule 2 - Securities to be Sold ....................................................Sch 2-1
Schedule 3 - Pricing Information.......................................................Sch 3-1
Schedule 4 - List of Subsidiaries......................................................Sch 4-1
Schedule 5 - List of Persons subject to Lock-up........................................Sch 5-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel............................................A-1
Exhibit B - Form of Opinion of Xxxxxxxx, Xxxxxx, Xxxxxxx & Xxxxxx...........................B-1
Exhibit C - Form Opinion of Xxx, Xxxxx & Xxxxxxxx...........................................C-1
Exhibit D - Form of Opinion of Hwang Mok Park P.C...........................................D-1
Exhibit E - Form of Opinion of Studio Legale Tosato.........................................E-1
Exhibit F - Form of Opinion of Counsel for the Selling Stockholder..........................F-1
Exhibit G - Form of Lock-up Letter..........................................................G-1
Exhibit G-1 - Form Lock-up Letter for TPG Wafer Holdings LLC................................G-4
EXHIBIT 32
MEMC ELECTRONIC MATERIALS, INC.
(a Delaware corporation)
57,000,000 Shares of Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
----------------------
February 17, 2005
XXXXXX BROTHERS INC.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Citigroup Global Markets, Inc.
JMP Securities LLC
Xxxxxxx & Company, Inc.
As Representatives of the several Underwriters
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
MEMC Electronic Materials, Inc., a Delaware corporation (the
"Company"), and TPG Wafer Holdings LLC, a Delaware limited liability company
(the "Selling Stockholder"), confirm their respective agreements with Xxxxxx
Brothers Inc. ("Xxxxxx Brothers"), Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Citigroup Global Markets, Inc.
("Citigroup"), JMP Securities LLC ("JMP"), Xxxxxxx & Company, Inc. ("Xxxxxxx")
and each of the other Underwriters named on Schedule 1 hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxx Xxxxxxxx, Xxxxxxx
Xxxxx, Citigroup, JMP and Xxxxxxx are acting as representatives (in such
capacity, the "Representatives") with respect to (i) the sale by the Selling
Stockholder and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of shares of Common Stock, par value $.01 per
share, of the Company ("Common Stock") set forth in Schedules 1 and 2 hereto and
(ii) the grant by the Selling Stockholder to the Underwriters of the option
described in Section 2(b) hereof to purchase all or any part of 8,550,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 57,000,000 shares of Common Stock (the "Initial Securities") to be
purchased by the Underwriters and all or any part of the 8,550,000 shares of
Common Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities".
The Company and the Selling Stockholder understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-122520), including
the related preliminary prospectus or prospectuses covering the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act").
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement (as so amended, if applicable), including the exhibits and any
schedules thereto, the Rule 430A Information and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time such registration statement became effective, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Underwriters by the Company for use in
connection with the offering of the Securities, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, are collectively herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
SECTION 1 Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery), the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not as of such times contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), included or will
include as of such times an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Xxxxxx Brothers or
Xxxxxxx Xxxxx expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and the 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 1933
Act, complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they became effective or at the time they were
or hereafter are filed with the Commission, complied and will comply as
of such times in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations or the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations"),
as applicable, and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective, at the time the Prospectus was issued and at the Closing
Time (and if any Option Securities are purchased, at the Date of
Delivery), did not and will as of such times not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated Subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated Subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles as applied in the United
States ("GAAP") with respect to the Company's consolidated financial
statements and condensed financial information and generally accepted
accounting principles applied in the Republic of China with respect to
Taisil Electronic Materials Corporation's ("Taisil") financial
statements, in each case applied on a consistent basis throughout the
periods involved except as otherwise disclosed in such financial
statements. The supporting schedules, if any, included in the
Registration Statement and Prospectus present fairly in accordance with
GAAP the information required to be stated therein. The summary
consolidated financial data and the financial information set forth
under "Recent Developments" in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the
Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its Subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its Subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock. Neither the Company nor any of its Subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree which may reasonably be
expected to result in a Material Adverse Effect, otherwise than as set
forth or contemplated in the Prospectus; and, since such date, there
has not been any change in the capital stock or long-term debt of the
Company or any of its Subsidiaries otherwise than as set forth or
contemplated in the Prospectus or the Company's press release dated
January 27, 2005 and furnished to the SEC on Form 8-K, and except for
changes to the Company's capital stock as a result of the exercise of
stock options under employee benefit plans subsequent to December 31,
2004.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Significant Subsidiary" and, collectively, the
"Significant Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation or organization, has corporate or
organizational power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation or limited liability
company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed
in the Registration Statement (including the documents incorporated by
reference therein), all of the issued and outstanding capital stock of
each such Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, other than the capital
stock of Taisil, MEMC Korea Company and MEMC Kulim Electronic
Materials, Sdn. Bhd., is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for the security
interests in such capital stock granted to certain lenders, noteholders
and guarantors as described in the Prospectus; none of the outstanding
shares of capital stock of any Significant Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Significant Subsidiary. The only subsidiaries of the Company are
the subsidiaries listed on Schedule 4 hereto (each a "Subsidiary" and,
collectively, the "Subsidiaries").
(viii) Capitalization. The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Description of Securities. The Common Stock conforms to
all statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its Subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any Subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement and
the Prospectus and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
of the Company and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or, except as set forth or
contemplated in the Prospectus, Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any Subsidiary
for which the holder has not agreed to waive or forego such right.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any Subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any Subsidiary, which is required to be disclosed in the
Registration Statement or the Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any
Subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. The Company and its
Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, covenants not to sue,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would reasonably be expected to render any
Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its Subsidiaries therein, and which infringement
or conflict or invalidity or inadequacy, singly or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any third party or any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the offering or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement, except
such as have been obtained by the Company, and except for applicable
state securities or blue sky laws and requirements of the National
Association of Securities Dealers, Inc. (the "NASD").
(xvii) Possession of Licenses and Permits. The Company and its
Subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure to possess such Governmental Licenses, could not
reasonably be expected to have a Material Adverse Effect; the Company
and its Subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor
any of its Subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its Subsidiaries
have good and marketable title to all real property owned by the
Company and its Subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Registration Statement and
the Prospectus, (b) secure debt instruments and/or credit facilities
reflected in the financial statements included in the Registration
Statement or Prospectus or (c) do not, singly or in the aggregate, have
a Material Adverse Effect and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
Subsidiaries; except as otherwise disclosed in the Registration
Statement, all of the leases and subleases material to the business of
the Company and its Subsidiaries, considered as one enterprise, and
under which the Company or any of its Subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither
the Company nor any Subsidiary has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of the
Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or such Subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xix) Investment Company Act. The Company is not, and upon the
sale of the Securities as herein contemplated will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its Subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its Subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its Subsidiaries and (D) to the
knowledge of the Company, there are no events or circumstances that
might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company or any
of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxi) Statistical Data. The statistical and market-related
data included in the Prospectus and the Registration Statement are
based on or derived from sources which the Company believes to be
reliable and accurate.
(xxii) No Brokers' Fees. Except as described in the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(xxiii) Registration Rights. Except as described in the
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 1933 Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the 1933 Act. Except as disclosed
in the Prospectus and except with respect to the registration rights
exercised by the Selling Stockholder hereunder, all persons (A) to whom
the Company has granted such demand or piggyback registration rights
and (B) whose rights may be exercised in connection with the
registration and offering of the Securities have waived such
registration rights.
(xxiv) Related Party Transactions. No relationship, direct or
indirect, exists between or among the Company on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company on the other hand, which is required to be described in the
Prospectus which is not so described.
(xxv) ERISA. Except as would not reasonably be expected to
have a Material Adverse Effect, the Company and its Subsidiaries are in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company or any Subsidiary of the Company would have any
liability; neither the Company nor any of its Subsidiaries has incurred
nor does the Company or any of its Subsidiaries expect to incur
liability under (A) Title IV of ERISA with respect to the termination
of, or withdrawal from, any "pension plan" or (B) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and
each "pension plan" for which the Company or any Subsidiary of the
Company would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
(xxvi) Tax Returns. The Company has filed all federal, state
and local income and franchise tax returns required to be filed through
the date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company or any of its
Subsidiaries which has had (nor does the Company have any knowledge of
any tax deficiency which, if determined adversely to the Company or any
of its Subsidiaries, could reasonably be expected to have) a Material
Adverse Effect.
(xxvii) Disclosure Controls and Procedures. The Company has
established and maintains disclosure controls and procedures (as such
term is defined in Rule 13a-14 under the Exchange Act), which (A) are
designed to ensure that material information relating to the Company,
including its consolidated Subsidiaries, is made known to the Company's
principal executive officer and its principal financial officer by
others within those entities, particularly during the periods in which
the periodic reports required under the 1934 Act are being prepared;
(B) have been evaluated for effectiveness as of September 30, 2004; and
(C) are effective in all material respects to perform the functions for
which they were established.
(xxviii) Evaluation of Disclosure Controls and Procedures.
Based on the evaluation of its disclosure controls and procedures
through the date hereof, the Company is not aware of (A) any
significant deficiency in the design or operation of internal control
over financial reporting which could adversely affect the Company's
ability to record, process, summarize and report financial data or any
material weaknesses in internal control over financial reporting; or
(B) any fraud, whether or not material, that involves management or
other employees who have a significant role in the Company's internal
control over financial reporting and that has not been reported to the
Company's registered public accounting firm and the Audit Committee of
the Company's Board of Directors.
(xxix) Absence of Changes in Internal Controls. Since the date
of the most recent evaluation of such disclosure controls and
procedures, there have been no changes in internal control over
financial reporting, including any corrective actions with regard to
significant deficiencies and material weaknesses, that has materially
affected, or is reasonably likely to materially affect, the Company's
internal control over financial reporting.
(xxx) Listing. The Securities are listed on the New York Stock
Exchange.
(xxxi) Internal Control. The Company and its Subsidiaries have
implemented such programs and are taking such steps as are necessary to
effect compliance (not later than the relevant statutory and regulatory
deadline therefor) with all provisions of Section 404 of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations implemented
pursuant thereto and have not received, orally or in writing, any
notification that its registered public accounting firm believes that
the Company will not be able to complete its assessment before the
reporting deadline, or, if completed, that it will not be completed in
sufficient time for the registered public accounting firm to complete
its assessment or will not be able to issue unqualified attestation
reports with respect thereto.
(b) Representations and Warranties by the Selling Stockholder. The
Selling Stockholder represents and warrants to each Underwriter as of the date
hereof, as of the Closing Time, and, if the Selling Stockholder is selling
Option Securities on a Date of Delivery, as of each such Date of Delivery, and
agrees with each Underwriter, as follows:
(i) Accurate Disclosure. The Selling Stockholder has reviewed
the Prospectus, and to the knowledge of the Selling Stockholder,
neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued
and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), included or will include as of such times an
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing
by any Underwriter through Xxxxxx Brothers or Xxxxxxx Xxxxx expressly
for use in the Prospectus.
(ii) Authorization of Agreements. The Selling Stockholder has
the full right, limited liability company power and authority to enter
into this Agreement and to sell, transfer and deliver the Securities to
be sold by the Selling Stockholder hereunder. The execution and
delivery of this Agreement and the sale and delivery of the Securities
to be sold by the Selling Stockholder and the consummation of the
transactions contemplated herein and compliance by the Selling
Stockholder with its obligations hereunder have been duly authorized by
the Selling Stockholder and do not and will not, conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which any
of the property or assets of the Selling Stockholder is subject, nor
will such action result in any violation of the provisions of the
organizational documents of the Selling Stockholder, or any applicable
treaty, law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Selling Stockholder or any of its
properties.
(iii) Good and Valid Title. The Selling Stockholder has and
will at the Closing Time and, if any Option Securities are purchased,
on the Date of Delivery have good and valid title to the Securities to
be sold by the Selling Stockholder hereunder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement; and
upon delivery of such Securities and payment of the purchase price
therefor as herein contemplated, assuming each such Underwriter has no
notice of any adverse claim (within the meaning of Section 8-105 of the
Uniform Commercial Code as in effect in the State of New York), each
such Underwriter will receive good and valid title to the Securities
purchased by it from the Selling Stockholder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iv) Absence of Manipulation. The Selling Stockholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(v) Absence of Further Requirements. Except for the
registration of the Securities under the 1933 Act and such consents,
approvals, authorizations, registrations, filings or qualifications as
may be required under the 1934 Act and applicable state securities laws
in connection with the purchase and distribution of the Securities by
the Underwriters, no filing with, or consent, approval, authorization,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the performance by the Selling Stockholder of its
obligations hereunder or in connection with the sale and delivery of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its Subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholder as such and
delivered to the Representatives or to counsel for the Underwriters pursuant to
the terms of this Agreement shall be deemed a representation and warranty by the
Selling Stockholder to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Stockholder agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Selling Stockholder, at the price per share set forth in Schedule 3,
that proportion of the number of Initial Securities set forth in Schedule 2
opposite the name of the Selling Stockholder which the number of Initial
Securities set forth in Schedule 1 opposite the name of such Underwriter, plus
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, bears to
the total number of Initial Securities, subject, in each case, to such
adjustments among the Underwriters as the Representatives in their sole
discretion shall make to eliminate any sales or purchases of fractional
securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Stockholder hereby grants an option to the Underwriters,
severally and not jointly, to purchase, severally and not jointly, up to an
additional 8,550,000 shares of Common Stock at the price per share set forth in
Schedule 3, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial Securities but not payable on
the Option Securities. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon written notice by the
Representatives to the Company and the Selling Stockholder setting forth the
number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule 1 opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, 0000 Xxxxxxx xx Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, or at such other place as shall be
agreed upon by the Representatives and the Company and the Selling Stockholder,
at 10:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company and the Selling Stockholder (such
time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company and the Selling Stockholder, on each Date of Delivery as
specified in the notice from the Representatives to the Company and the Selling
Stockholder.
Payment shall be made to the Selling Stockholder by wire transfer of
immediately available funds to bank accounts designated by the Selling
Stockholder against delivery through the facilities of The Depository Trust
Company to the Representatives for the respective accounts of the several
Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for the Initial Securities and the Option Securities, if any, which it has
agreed to purchase. Xxxxxx Brothers or Xxxxxxx Xxxxx, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter
as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b) hereof, will comply with the requirements of
Rule 424 and Rule 430A and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or any document incorporated by reference therein or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period in which a Prospectus is
required by the 1933 Act to be delivered in connection with the sale of the
Securities (the "Prospectus Delivery Period"), the Company will give the
Representatives notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to each of the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time during
the Prospectus Delivery Period, any event shall occur or condition shall exist
as a result of which it is necessary, in the reasonable opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use commercially
reasonable efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to maintain the
quotation of the Securities on the New York Stock Exchange.
(i) Restriction on Sale of Securities. During a period of ninety (90)
days from the date of the Prospectus, the Company will not, without the prior
written consent of Xxxxxx Brothers and Xxxxxxx Xxxxx, (i) directly or
indirectly, 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 or otherwise transfer or dispose of any share of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or file any registration statement under the 1933 Act with respect
to any of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder, (B) any
shares of Common Stock issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof and
referred to in the Prospectus or (C) any shares of Common Stock issued or
options to purchase Common Stock granted pursuant to existing employee benefit
plans of the Company referred to in the Prospectus.
(j) Reporting Requirements. The Company, during the Prospectus Delivery
Period, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Selling Stockholder will pay all expenses incident to
the performance by the Company of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any preliminary prospectus, the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement, (iii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, or delivery of the Securities,
(iv) the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, (v) the fees and disbursements of the Company's
counsel, the Selling Stockholder's counsel, accountants and other advisors, (vi)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vii) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (viii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (ix) the fees and
expenses of any transfer agent or registrar for the Securities, (x) any stamp
duties, capital duties and stock transfer taxes, if any, payable upon the sale
of the Securities to the Underwriters and (xi) the filing fees incident to, and
the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the NASD of the terms of the sale of the
Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5(t) or Section
9(a)(i) hereof, the Selling Stockholder shall reimburse the Underwriters for all
of their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters, incurred in connection with the
transactions contemplated by this Agreement.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholder
contained in Section 1 hereof or in certificates of any officer of the Company
or any Subsidiary of the Company or on behalf of the Selling Stockholder
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder and the performance by the
Selling Stockholder of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) No Material Misstatement or Omission. No Underwriter shall have
discovered and disclosed to the Company on or prior to the Closing Time or the
relevant Date of Delivery, as the case may be, that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact, which in the opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation, counsel for the Underwriters, is material or omits to
state a fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(c) Corporate Proceedings. All corporate proceedings and other legal
matters incident to the authorization, form and validity of this Agreement, the
Securities, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company and the Selling Stockholder shall have furnished
to such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(d) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxx Xxxx LLP, counsel for the Company, together with signed or
reproduced copies of such letter for each of the other Underwriters, to the
effect set forth in Exhibit A hereto.
(e) Opinion of Senniger, Xxxxxx, Xxxxxxx & Xxxxxx. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Senniger, Powers, Xxxxxxx & Xxxxxx, special counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
to the effect set forth in Exhibit B hereto.
(f) Opinion of Xxx, Xxxxx & Xxxxxxxx. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxx, Xxxxx & Xxxxxxxx, special counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, to the
effect set forth in Exhibit C hereto.
(g) Opinion of Xxxxx Xxx Park P.C. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, of Xxxxx
Xxx Park P.C., special counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, to the effect set
forth in Exhibit D hereto.
(h) Opinion of Studio Legale Tosato. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Studio Legale Tosato, special counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, to the
effect set forth in Exhibit E hereto.
(i) Opinion of Counsel for the Selling Stockholder. At Closing Time,
the Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Selling
Stockholder, together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect set forth in Exhibit F hereto.
(j) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for
the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, with respect to the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
require. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its Subsidiaries and certificates of
public officials.
(k) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(l) Certificate of Selling Stockholder. At Closing Time, the
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of the Selling Stockholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of the Selling Stockholder contained in
Section 1(b) hereof are true and correct in all material respects with the same
force and effect as though expressly made at and as of Closing Time and (ii) the
Selling Stockholder has complied in all material respects with all agreements to
be performed under this Agreement, including its obligations to fulfill its
conditions set forth in Section 5 hereof, at or prior to Closing Time.
(m) Accountant's Comfort Letter. The Representatives shall have
received from KPMG LLP a letter dated as of the date hereof, in form and
substance previously agreed to by the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters, 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 and the
Prospectus. (n) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from KPMG LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (m) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(o) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(p) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received (i) an agreement substantially in the form
of Exhibit G hereto signed by the persons listed on Schedule 5 hereto and (ii)
an agreement substantially in the form of Exhibit G-1 hereto signed by the
Selling Stockholder.
(q) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and the Selling Stockholder contained herein and the statements
in any certificates furnished by the Company or any Subsidiary of the Company
and the Selling Stockholder hereunder shall be true and correct as of each Date
of Delivery and, at the relevant Date of Delivery, the Representatives shall
have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(k) hereof
remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Stockholder. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of the Selling
Stockholder confirming that the certificate delivered at Closing Time pursuant
to Section 5(l) remains true and correct as of such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
Xxxxx Xxxx LLP, counsel for the Company, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(d) hereof.
(iv) Opinion of Senniger, Xxxxxx, Xxxxxxx & Xxxxxx. The
favorable opinion of Xxxxxxxx, Xxxxxx, Xxxxxxx & Xxxxxx, counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(e) hereof.
(v) Opinion of Xxx, Xxxxx & Xxxxxxxx. The favorable opinion of
Xxx, Xxxxx & Xxxxxxxx, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(f) hereof.
(vi) Opinion of Xxxxx Xxx Park P.C. The favorable opinion of
Xxxxx Xxx Park P.C., counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(g) hereof.
(vii)....Opinion of Studio Legale Tosato. The favorable
opinion of Studio Legale Tosato, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(h) hereof.
(viii) Opinion of Counsel for the Selling Stockholder. The
favorable opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the
Selling Stockholder, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(i) hereof.
(ix) Opinion of Counsel for Underwriters. The favorable
opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, PC, counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(j) hereof.
(x) Bring-down Comfort Letter. A letter from KPMG LLP, in form
and substance satisfactory to the Representatives and dated such Date of
Delivery, substantially in the same form and substance as the letter furnished
to the Representatives pursuant to Section 5(m) hereof, except that the
"specified date" in the letter furnished pursuant to this paragraph shall be a
date not more than five days prior to such Date of Delivery.
(r) No Material Adverse Change. Neither the Company nor any of its
Subsidiaries shall have sustained since the date of the latest financial
statements included or incorporated by reference in the Prospectus (i) any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any change, or any development that could reasonably be expected
to result in a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its Subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is or would be, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at the relevant
Closing Time or the relevant Date of Delivery on the terms and in the manner
contemplated in the Prospectus.
(s) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company and the Selling Stockholder in connection with the sale of the
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(t) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Company
and the Selling Stockholder at any time at or prior to Closing Time or such Date
of Delivery, as the case may be, and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its directors, officers and employees and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage, expense or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Securities), as incurred,
arising out of (A) any untrue statement or alleged untrue statement of
a material fact contained (x) in the Registration Statement (or any
amendment thereto), any preliminary prospectus, or the Prospectus (or
any amendment or supplement thereto), or (y) in any materials or
information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the
Securities, including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically)
("Marketing Materials"), (B) the omission or alleged omission in the
Registration Statement (or any amendment thereto), any preliminary
prospectus, or the Prospectus (or any amendment or supplement thereto),
or in any Marketing Materials of a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
the light of the circumstances under which they were made, not
misleading, or (C) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in
any manner to, the Securities or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by
clause (A) or (B) above (provided that the Company shall not be liable
under this clause (C) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or willful misconduct);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company and the Selling Stockholder;
and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
Xxxxxx Brothers and Xxxxxxx Xxxxx), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxx Brothers or Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto), any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), which information
consists solely of the information specified in Section 6(e) hereof. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Underwriter or any officer, employee or controlling
person of that Underwriter.
(b) Indemnification of Underwriters by the Selling Stockholder. The
Selling Stockholder, solely with respect to itself, agrees to indemnify and hold
harmless each Underwriter, its directors, officers and employees and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage, expense or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Securities), as incurred, arising out
of (1) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), any
preliminary prospectus, or the Prospectus (or any amendment or supplement
thereto), or (2) the omission or alleged omission in the Registration Statement
(or any amendment thereto), any preliminary prospectus, or the Prospectus (or
any amendment or supplement thereto), of a material fact required to be stated
therein or necessary to make the statements therein not misleading, in the light
of the circumstances under which they were made, in the case of subparagraphs
(1) and (2) of this Section 6(b) to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon or in conformity with written information
furnished to the Company or such Underwriter by the Selling Stockholder directly
or through the Selling Stockholder's representatives, specifically for use in
the preparation thereof; and shall reimburse each Underwriter, its directors,
officers and employees or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Selling
Stockholder shall not be liable in any such case to the extent that any such
loss, liability, claim, damage or expense arises out of, or is based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxx Brothers or Xxxxxxx Xxxxx expressly
for use in the Registration Statement, any preliminary prospectus or the
Prospectus (or in any amendment or supplement thereto), which information
consists solely of the information specified in Section 6(e) hereof and
provided, further, that with respect to any preliminary prospectus, the
foregoing indemnity agreement shall not inure to the benefit of any Underwriter
from whom the person asserting any loss, liability, claim, damage or expense
purchased Securities, or any person controlling such Underwriter, if copies of
the Prospectus were timely delivered to the Underwriter pursuant to this
Agreement and a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, liability, claim, damage
or expense. However, in no event shall the Selling Stockholder be liable under
the provisions of this Section 6 for any amount in excess of the total proceeds
received by the Selling Stockholder from the sale of the Securities by the
Selling Stockholder (after deducting commissions, but before taxes and any other
expenses) pursuant to this Agreement. The foregoing indemnity agreement is in
addition to any liability which the Selling Stockholder may otherwise have to
any Underwriter or any officer, employee or controlling person of that
Underwriter.
(c) Indemnification of Company, Directors and Officers and Selling
Stockholder. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the Selling
Stockholder and each person, if any, who controls the Selling Stockholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsections (a) and (b) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), any preliminary prospectus, or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxx Brothers or Xxxxxxx
Xxxxx expressly for use in the Registration Statement (or any amendment
thereto), or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), which information consists solely of the information
specified in Section 6(e) hereof. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or the Selling Stockholder or any officer, employee or controlling
person of the Company or the Selling Stockholder.
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Sections 6(a) and (b)
above, counsel to the indemnified parties shall be selected by Xxxxxx Brothers
and Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to Section
6(c) above, counsel to the indemnified parties shall be selected by the Company
or the Selling Stockholder, as the case may be. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties (which consent will
not be unreasonably withheld), settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(e) Information Furnished by Underwriters. The Underwriters confirm and
the Company and the Selling Stockholder acknowledge that the statements with
respect to the public offering of the Securities by the Underwriters set forth
on the cover page of, the name of the Underwriters and its participation in the
sale of Securities under the caption "Underwriting" in, the paragraphs
addressing the underwriting discount, concessions and reallowances,
stabilization, short positions and penalty bids appearing under the caption
"Underwriting" in, and the paragraphs under the heading "Relationships"
appearing under the caption "Underwriting" in the Prospectus constitute the only
information concerning the Underwriters furnished in writing to the Company by
or on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
(f) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) 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 have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(g) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement between the Company and the Selling
Stockholder with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Selling Stockholder
on the one hand and the Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholder on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Selling Stockholder on the one
hand and the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Selling Stockholder and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of the Securities as set forth on
such cover.
The relative fault of the Company and the Selling Stockholder on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Stockholder or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
The Selling Stockholder shall not be required to contribute any amount
in excess of the total proceeds received by the Selling Stockholder from the
offering of the Securities by the Selling Stockholder (after deducting
commissions, but before taxes and other expenses).
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Selling Stockholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
the Selling Stockholder, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule 1 hereto and not joint.
The provisions of this Section shall not affect any agreement between
the Company and the Selling Stockholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its Subsidiaries or the
Selling Stockholder submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company or the
Selling Stockholder, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company and the Selling Stockholder, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus (exclusive of any amendment or supplement thereto), any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or in the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, including, without
limitation, as a result of terrorist activities, in each case the effect of
which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the NASD or any other governmental
authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Company
to sell the Option Securities to be purchased and sold on such Date of
Delivery, shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Selling Stockholder to sell the relevant Option
Securities, as the case may be, either the Representatives or the Selling
Stockholder shall have the right to postpone Closing Time or the relevant Date
of Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Default by the Selling Stockholder. If the Selling Stockholder shall
fail at Closing Time or at a Date of Delivery to sell and deliver the number of
Securities which the Selling Stockholder is obligated to sell hereunder, then
the Underwriters may, at the option of the Representatives, by notice from the
Representatives to the Company and the Selling Stockholder, either (i) terminate
this Agreement without any liability on the fault of any non-defaulting party
except that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full
force and effect or (ii) elect to purchase the Securities which the Selling
Stockholder has agreed to sell hereunder. No action taken pursuant to this
Section 11 shall relieve the Selling Stockholder so defaulting from liability,
if any, in respect of such default.
In the event of a default by the Selling Stockholder as referred to in
this Section 11, each of the Representatives and the Company shall have the
right to postpone Closing Time or Date of Delivery for a period not exceeding
seven days in order to effect any required change in the Registration Statement
or Prospectus or in any other documents or arrangements.
SECTION 12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative at Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention of Syndicate Registration Department (Fax: (212)
000-0000), with a copy, in the case of any notice pursuant to Section 6(c), to
the Director of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc.,
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, and at Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated, 0000 X Xxxxxx Xxx, Xxxx Xxxx, XX 00000-0000,
attention of Xxxx Xxxxxx; notices to the Company shall be directed to it at 000
Xxxxx Xxxxx (Xxxx xx X'Xxxxxx), Xx. Xxxxxx, Xxxxxxxx 00000, attention of Xxxxx
X. Xxxxxxxx (Fax: (000) 000-0000); and notices to the Selling Stockholder shall
be directed to TPG Wafer Holdings LLC, c/o Texas Pacific Group, 000 Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, XX 00000 (Fax: (000) 000-0000), attention of
Xxxxx X. Xxxxxx.
SECTION 13. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 14. Parties. This Agreement shall each inure to the benefit of and be
binding upon the Underwriters, the Company and the Selling Stockholder and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Selling Stockholder and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and the Selling Stockholder and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 15. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 16. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
EXHIBIT 32
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement by
and among the Underwriters, the Selling Stockholder and the Company in
accordance with its terms.
Very truly yours,
MEMC ELECTRONIC MATERIALS, INC.
By /s/ Xxx Xxxxxx
----------------------------------------
Name: Xxx Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
TPG WAFER HOLDINGS LLC
By: TPG WAFER PARTNERS LLC,
its managing member
By /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXX BROTHERS INC.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
JMP SECURITIES LLC
XXXXXXX & COMPANY, INC.
By: XXXXXX BROTHERS INC.
By /s/ XXXXX XXXXXXXX
-----------------------------------------------------
Authorized Signatory
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By /s/ XXXX XXXXXX
-----------------------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule 1 hereto.
SCHEDULE 1
Number of
Initial
Name of Underwriters Securities
-------------------- ----------
Xxxxxx Brothers Incorporated 18,480,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 20,160,000
Citigroup Global Markets, Inc. 9,520,000
JMP Securities LLC 3,920,000
Xxxxxxx & Company, Inc. 3,920,000
X.X. Xxxxxxx & Sons, Inc. 100,000
Xxxxxx X. Xxxxx & Co., L.P. 100,000
Keybanc Capital Markets, A Division of McDonald Investments Inc. 100,000
Maxim Group LLC 100,000
Xxxxxxxxxxx & Co. Inc. 100,000
Xxxxx Xxxxxxx & Co. 100,000
RBC Capital Markets Corporation 100,000
Xxxxxx, Xxxxxxxx & Company, Incorporated 100,000
Wedbush Xxxxxx Securities Inc. 100,000
Xxxxx Fargo Securities, LLC 100,000
Total 57,000,000
==========
SCHEDULE 2
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
--------------------- ---------------------
TPG Wafer Holdings LLC........ 57,000,000 8,550,000
SCHEDULE 3
MEMC ELECTRONIC MATERIALS, INC.
57,000,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $11.50.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $11.0112, being an amount equal to the initial
public offering price set forth above less $0.4888 per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
SCHEDULE 4
List of Subsidiaries
MEMC Electronic Materials (UK) Ltd.
MEMC Electronic Materials France Sarl
MEMC Electronic Materials Sales, Sdn. Bhd.
MEMC Electronic Materials, GmbH
MEMC Electronic Materials, S.p.A.
MEMC Electronic Materials, Sdn. Bhd.
MEMC Holding B.V.
MEMC Holdings Corporation
MEMC International, Inc.
MEMC Japan Ltd.
MEMC Korea Company
MEMC Kulim Electronic Materials, Sdn. Bhd.
MEMC Pasadena, Inc.
MEMC Southwest Inc.
PlasmaSil, LLC
SiBond, LLC
Taisil Electronic Materials Corporation
SCHEDULE 5
List of persons and entities
subject to lock-up
Xxxxxx Xxxxxx
Xxx Xxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx-Xxxxxx
Xxxx Xxxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx-Xxxx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxx Xxxxxx
X. Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
[Xxxxx Xxxx Opinion to be attached]
Exhibit B
FORM OF OPINION OF XXXXXXXX, XXXXXX, XXXXXXX & XXXXXX
TO BE DELIVERED PURSUANT TO SECTION 5(e)
[Senniger Powers Opinion to be attached]
Exhibit C
FORM OF OPINION OF XXX, XXXXX & KATAYAMA
TO BE DELIVERED PURSUANT TO SECTION 5(f)
MEMC Japan (a) has been duly incorporated and is validly existing as a limited
liability company (Kabushiki Kaisha) under the Commercial Code of Japan, (b) has
corporate or organizational power and authority to own, lease and operate its
properties and to conduct its business as presently conducted under the laws of
Japan and (c) is duly qualified as a foreign corporation or limited liability
company to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse Effect.
All of the issued and outstanding capital stock of MEMC Japan has been duly
authorized and validly issued and is fully paid and non-assessable. To our
knowledge, all of the issued and outstanding capital stock of MEMC Japan is
owned by the Company.
For purposes of this opinion, a "Material Adverse Effect" means a material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospectus of MEMC Japan.
Exhibit D
FORM OF OPINION OF HWANG MOK PARK P.C.
TO BE DELIVERED PURSUANT TO SECTION 5(g)
1. The Company is a joint stock corporation (chusik hoesa) duly
incorporated and validly existing in good standing under the laws of Korea;
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as presently conducted;
3. To the best of our knowledge after due inquiry, the Company is
duly qualified as a joint stock corporation (xxxxxx xxxxx) to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. For the purpose of this
opinion, a "Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company; and
4. All of the issued and outstanding capital stock of the Company has
been duly authorized and validly issued and is fully paid and non-assessable. To
our knowledge, forty percent (40%) of the issued and outstanding capital stock
of the Company is owned by MEMC International, Inc. and another forty percent
(40%) of the issued and outstanding capital stock of the Company is owned by
MEMC Holding B.V.
Exhibit E
FORM OF OPINION OF STUDIO LEGALE TOSATO
TO BE DELIVERED PURSUANT TO SECTION 5(h)
MEMC Electronic Materials, S.p.A. (a) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Italy, (b) has
corporate or organizational power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and (c) is duly
qualified to transact business and is in good standing in each jurisdiction
where it owns or leases property or otherwise conducts business, except where
the failure to so qualify or be in good standing would not result in a Material
Adverse Effect. All of the issued and outstanding capital stock of MEMC
Electronic Materials, S.p.A. has been duly authorized and validly issued and is
fully paid and non-assessable. To our knowledge, all of the issued and
outstanding capital stock of MEMC Electronic Materials, S.p.A. is owned by MEMC
Electronic Materials, Inc. To our knowledge, 100% of the issued and outstanding
capital stock of MEMC Holding B.V. is owned by MEMC Electronic Materials, S.p.A.
The issued and outstanding capital stock of MEMC Holding B.V. that is owned by
MEMC Electronic Materials, S.p.A. is, to our knowledge, owned free and clear of
any security interest, mortgage, pledge, lien, encumbrance or other claim.
For purposes of this opinion, a "Material Adverse Effect" means a material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of MEMC Electronic Materials, S.p.A.
Exhibit F
FORM OF OPINION OF COUNSEL FOR THE SELLING STOCKHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(j)
[Xxxxxx, Xxxxxxxx Opinion to be attached]
Exhibit G
LOCK-UP LETTER AGREEMENT
February 1, 2005
XXXXXX BROTHERS INC.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED CITIGROUP GLOBAL MARKETS INC.
JMP SECURITIES LLC
XXXXXXX & COMPANY, INC.
As the several
Underwriters named in Schedule 1
to the Underwriting Agreement,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
World Financial Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned understands that you and certain other firms propose to
enter into an Underwriting Agreement (the "Underwriting Agreement") providing
for the purchase by you and such other firms (the "Underwriters") of shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of
MEMC Electronic Materials, Inc., a Delaware corporation (the "Company") held by
a certain stockholder of the Company (the "Selling Stockholder"), and that the
Underwriters propose to reoffer the Shares to the public (the "Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc. and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, on behalf
of the Underwriters, the undersigned will not, directly or indirectly, (1) offer
for sale, sell, pledge, or otherwise dispose of (or enter into any transaction
or device that is designed to, or could reasonably be expected to, result in the
disposition by any person at any time in the future of) any shares of Common
Stock (including, without limitation, shares of Common Stock that may be deemed
to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and shares of Common Stock
that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Common Stock (other than the Shares) owned
by the undersigned on the date of execution of this Lock-Up Letter Agreement or
on the date of the completion of the Offering, or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise, for a period of ninety (90) days after the date of the final
Prospectus relating to the Offering.
The foregoing sentence shall not apply to bona fide gifts, sales or
other dispositions of shares of any class of the Company's capital stock, in
each case that are made exclusively between and among the undersigned or members
of the undersigned's family, or affiliates of the undersigned, including its
partners (if a partnership) or members (if a limited liability company);
provided that it shall be a condition to any such transfer that (i) the
transferee/donee agrees to be bound by the terms of the lock-up letter agreement
(including, without limitation, the restrictions set forth in the preceding
sentence) to the same extent as if the transferee/donee were a party hereto,
(ii) no filing by any party (donor, donee, transferor or transferee) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), shall be
required or shall be voluntarily made in connection with such transfer or
distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or
13D-A or 13G-A) made after the expiration of the ninety (90)-day period referred
to above), (iii) each party (donor, donee, transferor or transferee) shall not
be required by law (including without limitation the disclosure requirements of
the Securities Act of 1933, as amended, and the Exchange Act) to make, and shall
agree to not voluntarily make, any public announcement of the transfer or
disposition, and (iv) the undersigned notifies Xxxxxx Brothers' Equity Capital
Markets and Xxxxxxx Xxxxx Equity Capital Markets at least two business days
prior to the proposed transfer or disposition.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective before April 30, 2005, or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be
terminated prior to payment for and delivery of the Shares, we will be released
from our obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company, the Selling Stockholder
and the Underwriters will proceed with the Offering in reliance on this Lock-Up
Letter Agreement.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between
the Company, the Selling Stockholder and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents reasonably
necessary in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
By:
---------------------------------
Dated: February __, 2005
Exhibit G-1
LOCK-UP LETTER AGREEMENT
February 1, 2005
XXXXXX BROTHERS INC.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED CITIGROUP GLOBAL MARKETS INC.
JMP SECURITIES LLC
XXXXXXX & COMPANY, INC.
As the several
Underwriters named in Schedule 1
to the Underwriting Agreement,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
World Financial Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned understands that you and certain other firms propose to
enter into an Underwriting Agreement (the "Underwriting Agreement") providing
for the purchase by you and such other firms (the "Underwriters") of shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of
MEMC Electronic Materials, Inc., a Delaware corporation (the "Company") held by
one of the undersigned stockholders of the Company (the "Selling Stockholder"),
and that the Underwriters propose to reoffer the Shares to the public (the
"Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc. and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, on behalf
of the Underwriters, the undersigned will not, directly or indirectly, (1) offer
for sale, sell, pledge, or otherwise dispose of (or enter into any transaction
or device that is designed to, or could reasonably be expected to, result in the
disposition by any person at any time in the future of) any shares of Common
Stock (including, without limitation, shares of Common Stock that may be deemed
to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and shares of Common Stock
that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Common Stock (other than the Shares) owned
by the undersigned on the date of execution of this Lock-Up Letter Agreement or
on the date of the completion of the Offering, or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise, for a period of one hundred eighty (180) days after the date of the
final Prospectus relating to the Offering.
The foregoing sentence shall not apply to bona fide gifts, sales or
other dispositions of shares of any class of the Company's capital stock, in
each case that are made exclusively between and among the undersigned or members
of the undersigned's family, or affiliates of the undersigned, including its
partners (if a partnership) or members (if a limited liability company);
provided that it shall be a condition to any such transfer that (i) the
transferee/donee agrees to be bound by the terms of the lock-up letter agreement
(including, without limitation, the restrictions set forth in the preceding
sentence) to the same extent as if the transferee/donee were a party hereto,
(ii) no filing by any party (donor, donee, transferor or transferee) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), shall be
required or shall be voluntarily made in connection with such transfer or
distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or
13D-A or 13G-A) made after the expiration of the one hundred eighty (180)-day
period referred to above), (iii) each party (donor, donee, transferor or
transferee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act of 1933, as amended, and the
Exchange Act) to make, and shall agree to not voluntarily make, any public
announcement of the transfer or disposition, and (iv) the undersigned notifies
Xxxxxx Brothers' Equity Capital Markets and Xxxxxxx Xxxxx Equity Capital Markets
at least two business days prior to the proposed transfer or disposition.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective before April 30, 2005, or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be
terminated prior to payment for and delivery of the Shares, we will be released
from our obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between
the Company, the Selling Stockholder and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents reasonably
necessary in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
TPG WAFER HOLDINGS LLC
By:
----------------------------
Name:
Title:
Dated: February __, 2005
