Eloqua, Inc. _____ Shares of Common Stock Underwriting Agreement
Exhibit 1.1
_____ Shares of Common Stock
_______________, 2012
X.X. Xxxxxx Securities LLC
Deutsche Bank Securities Inc.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
Deutsche Bank Securities Inc.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Eloqua, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the
several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate of [•] shares of common stock, par value $
0.0001 per share (“Common Stock”), of the Company, and certain stockholders of the Company named in
Schedule 2 hereto (the “Selling Stockholders”) propose, severally and not jointly, to sell to the
several Underwriters an aggregate of [•] shares of Common Stock of the Company (collectively, the
“Underwritten Shares”). In addition, the Company proposes to issue and sell, at the option of the
Underwriters, up to an additional [•] shares of Common Stock of the Company, and the Selling
Stockholders propose, severally and not jointly, to sell, at the option of the Underwriters, up to
an additional [•] shares of Common Stock of the Company (collectively, the “Option Shares”). The
Underwritten Shares and the Option Shares are herein referred to as the “Shares”. The shares of
Common Stock of the Company to be outstanding after giving effect to the sale of the Shares are
referred to herein as the “Stock”.
Deutsche Bank Securities Inc. (“Deutsche Bank”) has agreed to reserve a portion of the Shares
to be purchased by it under this Agreement, up to [•] Shares, for sale to the Company’s directors,
officers, employees and other parties related to the Company (collectively, “Participants”), as set
forth in the Prospectus (as hereinafter defined) under the heading “Underwriting” (the “Directed
Share Program”). The Shares to be sold by Deutsche Bank and its affiliates pursuant to the Directed
Share Program are referred to hereinafter as the “Directed Shares”. Any Directed Shares not orally
confirmed for purchase by any Participant by 11:00 p.m. New York
City
time on the business day on which this Agreement is executed will be offered to the public by
the Underwriters as set forth in the Prospectus.
The Company and the Selling Stockholders hereby confirm their agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement (File No. 333-176484), including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became effective, including the information, if any, deemed
pursuant to Rule 430A under the Securities Act to be part of the registration statement at the time
of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration
Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus included in
such registration statement (and any amendments thereto) before effectiveness, any prospectus filed
with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in
the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and
the term “Prospectus” means the prospectus in the form first used (or made available upon request
of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of
sales of the Shares. If the Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference
herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have the meanings given to such
terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively with the pricing information set forth on Annex B, the “Pricing
Disclosure Package”): a Preliminary Prospectus dated [•], 2012 and each “free-writing prospectus”
(as defined pursuant to Rule 405 under the Securities Act) listed on Annex B hereto.
“Applicable Time” means [•] [A/P].M., New York City time, on [•], 2012.
2. Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and
sell, and each of the Selling Stockholders agrees, severally and not jointly, to sell, the
Underwritten Shares to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase at a
price per share (the “Purchase Price”) of $ [•] from the Company the respective number of
Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto and from each
of the Selling Stockholders the number of Underwritten Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of Underwritten Shares
to be sold by each of the Selling Stockholders as set forth opposite their respective names in
Schedule 2 hereto by a fraction, the numerator of which is the aggregate number of Underwritten
Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in
Schedule 1 hereto and the denominator of which is the aggregate number of Underwritten Shares to be
purchased by all the Underwriters from all of the Selling Stockholders hereunder.
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In addition, the Company agrees to issue and sell, and each of the Selling Stockholders
agrees, severally and not jointly, as and to the extent indicated in Schedule 2 hereto, to sell,
the Option Shares to the several Underwriters as provided in this Agreement, and the Underwriters,
on the basis of the representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, shall have the option to purchase, severally and not jointly, from
each of the Company and each Selling Stockholder at the Purchase Price less an amount per share
equal to any dividends or distributions declared by the Company and payable on the Underwritten
Shares but not payable on the Option Shares. If any Option Shares are to be purchased, the number
of Option Shares to be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased as the number of
Underwritten Shares set forth opposite the name of such Underwriter in Schedule 1 hereto (or such
number increased as set forth in Section 12 hereof) bears to the aggregate number of Underwritten
Shares being purchased from the Company and the Selling Stockholders by the several Underwriters,
subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in
their sole discretion shall make. Any such election to purchase Option Shares shall be made in
proportion to the maximum number of Option Shares to be sold by the Company and by each Selling
Stockholder as set forth in Schedule 2 hereto.
The Underwriters may exercise the option to purchase Option Shares at any time in whole, or
from time to time in part, on or before the thirtieth day following the date of the Prospectus, by
written notice from the Representatives to the Company and the Attorneys-in-Fact (as defined
below). Such notice shall set forth the aggregate number of Option Shares as to which the option
is being exercised and the date and time when the Option Shares are to be delivered and paid for,
which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be
earlier than the Closing Date or later than the tenth full business day (as hereinafter defined)
after the date of such notice (unless such time and date are postponed in accordance with the
provisions of Section 12 hereof). Any such notice shall be given at least two business days prior
to the date and time of delivery specified therein.
(b) The Company and the Selling Stockholders understand that the Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable, and initially to offer the Shares on the terms set forth in
the Prospectus. The Company and the Selling Stockholders acknowledge and agree that the
Underwriters may offer and sell Shares to or through any affiliate of an Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the accounts specified by the Company and the Attorneys-in-Fact or any of them (with regard to
payment to the Selling Stockholders), to the Representatives in the case of the Underwritten
Shares, at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxxxxx Xxxxxx XX, Xxxxxxxxxx, Xxxxxxxx xx
Xxxxxxxx 00000 at 10:00 A.M., New York City time, on the third (fourth, if the pricing occurs after
4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 12 hereof), or at such other time or place
on the same or such other date, not later than the fifth business day thereafter, as the
Representatives, the Company and the Attorneys-in-Fact may agree upon in writing or, in the case of
the Option Shares, on the date and at the time and place specified by the Representatives in the
written notice of the Underwriters’ election to purchase such Option Shares. The time and date of
such payment for the Underwritten Shares is referred to herein as the “Closing Date”, and
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the time and date for such payment for the Option Shares, if other than the Closing Date, is
herein referred to as the “Additional Closing Date”.
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date or the Additional Closing
Date, as the case may be, with any transfer taxes payable in connection with the sale of such
Shares duly paid by the Company and the Selling Stockholders, as applicable. Delivery of the
Shares shall be made through the facilities of The Depository Trust Company (“DTC”) unless the
Representatives shall otherwise instruct. The certificates for the Shares will be made available
for inspection and packaging by the Representatives at the office of DTC or its designated
custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing
Date or the Additional Closing Date, as the case may be.
(d) The Company and each Selling Stockholder acknowledge and agree that the Underwriters are
acting solely in the capacity of an arm’s length contractual counterparty to the Company and the
Selling Stockholders with respect to the offering of Shares contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company, the Selling Stockholders or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company, the
Selling Stockholders or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company and the Selling Stockholders each shall
consult with their own advisors concerning such matters and each shall be responsible for making
its own independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company or the Selling Stockholders
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company or the Selling Stockholders.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter and the Selling Stockholders that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the
Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with
the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any
untrue statement of a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in Section
9(c) hereof.
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(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did
not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will
not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that the Company makes no representation and warranty with respect
to any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such in
Section 9(c) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary
Prospectus and the Prospectus, the Company (including its agents and representatives, other than
the Underwriters in their capacity as such) has not prepared, used, authorized, approved or
referred to and will not prepare, use, authorize, approve or refer to any “written communication”
(as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Shares (each such communication by the Company or its agents and
representatives (other than a communication referred to in clause (i) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed
on Annex B hereto, each electronic road show and any other written communications approved in
writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in
all material respects with the Securities Act, has been or will be (within the time period
specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to
delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or omissions made in
each such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus or
Preliminary Prospectus, it being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in Section 9(c) hereof.
(d) Registration Statement and Prospectus. The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness of the Registration Statement
has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of
the Securities Act against the Company or related to the offering of the Shares has been initiated
or, to the knowledge of the Company, threatened by the Commission; as of the applicable effective
date of the Registration Statement and any post-effective amendment thereto, the Registration
Statement and any such post-effective amendment complied and will comply in all material respects
with the Securities Act, and did not and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the Prospectus and any
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amendment or supplement thereto and as of the Closing Date and as of the Additional Closing
Date, as the case may be, the Prospectus will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that the Company
makes no representation and warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter consists of the information
described as such in Section 9(c) hereof.
(e) Testing-the-Waters Materials. The Company (i) has not alone engaged in any
Testing-the-Waters Communications other than Testing-the-Waters Communications with the consent of
the Representatives with entities that are qualified institutional buyers within the meaning of
Rule 144A under the Securities Act or institutions that are accredited investors within the meaning
of Rule 501 under the Securities Act and (ii) has not authorized anyone other than the
Representatives to engage in Testing-the-Waters Communications. “Testing-the-Waters Communication”
means any oral or written communication with potential investors undertaken in reliance on Section
5(d) of the Securities Act. The Company reconfirms that the Representatives have been authorized
to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not
distributed or approved for distribution any Written Testing-the-Waters Communications other than
those listed on Schedule 3 hereto. “Written Testing-the-Waters Communication” means any
Testing-the-Waters Communication that is a written communication within the meaning of Rule 405
under the Securities Act. Any individual Written Testing-the-Waters Communication does not
conflict with the information contained in the Registration Statement or the Pricing Disclosure
Package, complied in all material respects with the Securities Act, and when taken together with
the Pricing Disclosure Package as of the Applicable Time, did not, and as of the Closing Date and
as of the Additional Closing Date, as the case may be, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(f) Financial Statements. The financial statements (including the related notes thereto) of
the Company and its consolidated subsidiaries included in the Registration Statement, the Pricing
Disclosure Package and the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries as of the dates indicated and the results
of their operations and the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods covered thereby, and any
supporting schedules included in the Registration Statement present fairly in all material respects
the information required to be stated therein; the other financial information included in the
Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the
accounting records of the Company and its consolidated subsidiaries and presents fairly in all
material respects the information shown thereby; and the pro forma financial information and the
related notes thereto included in the Registration Statement, the Pricing Disclosure Package and
the Prospectus have been prepared in accordance with the applicable requirements of the
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Commission’s Division of Corporation Finance Financial Reporting Manual, the pro forma
adjustments have been properly compiled on the pro forma bases described in the notes thereto and
applied to the historical amounts in the compilation thereof, and the assumptions underlying such
pro forma financial information are reasonable and are set forth in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(g) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
(i) there has not been any change in the capital stock (other than the issuance of shares of Common
Stock upon exercise of stock options and warrants described as outstanding in, and the grant of
options and awards under existing equity incentive plans described in, the Registration Statement,
the Pricing Disclosure Package and the Prospectus), short-term debt or long-term debt of the
Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any material adverse
change, or any development that reasonably could involve a prospective material adverse change, in
or affecting the business, properties, management, financial position, stockholders’ equity, or
results of operations of the Company and its subsidiaries taken as a whole; (ii) neither the
Company nor any of its subsidiaries has entered into any transaction or agreement (whether or not
in the ordinary course of business) that is material to the Company and its subsidiaries taken as a
whole or incurred any liability or obligation, direct or contingent, that is material to the
Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its
subsidiaries has sustained any loss or interference with its business that is material to the
business of the Company and its subsidiaries taken as a whole and that is either from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(h) Organization and Good Standing. The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing (or equivalent concept) under the laws of
their respective jurisdictions of organization (to the extent the concept of “good standing” or
such equivalent concept exists under the laws of any such jurisdiction), are duly qualified to do
business and are in good standing in each jurisdiction (to the extent the concept of “good
standing” or such equivalent concept exists under the laws of any such jurisdiction) in which their
respective ownership or lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the failure to be
so qualified or in good standing or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on, or involve a prospective material adverse change in
or affecting, the business, properties, management, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries taken as a whole or on the performance by
the Company of its obligations under this Agreement (a “Material Adverse Effect”). The Company
does not own or control, directly or indirectly, any corporation, association or other entity other
than the subsidiaries listed in Exhibit 21 to the Registration Statement. The subsidiaries listed
in Schedule 2 to this Agreement are the only significant subsidiaries of the Company.
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(i) Emerging Growth Company. From April 5, 2012 through the date hereof, the Company has been
and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging
Growth Company”).
(j) Material Contracts. Each material contract, agreement and license filed as an exhibit to
the Registration Statement to which the Company or any of its subsidiaries is bound is legal,
valid, binding, enforceable and in full force and effect against the Company or such subsidiary,
and to the knowledge of the Company, each other party thereto, except to the extent such
enforceability is subject to (i) laws of general application relating to bankruptcy, insolvency,
moratorium and the relief of debtors and (ii) the availability of specific performance, injunctive
relief and other equitable remedies. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any other party is in material breach or default with respect to any such
contract, agreement or license, and, to the knowledge of the Company, no event has occurred which
with notice or lapse of time would constitute a material breach or default, or permit termination,
modification, or acceleration, under any such contract, agreement or license. To the Company’s
knowledge, no party has repudiated any material provision of any such contract, agreement or
license.
(k) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company (including the Shares
to be sold by the Selling Stockholders) have been duly and validly authorized and issued and are
fully paid and non-assessable and are not subject to any pre-emptive or similar rights; except as
described in or expressly contemplated by the Pricing Disclosure Package and the Prospectus, there
are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options
to acquire, or instruments convertible into or exchangeable for, any shares of capital stock or
other equity interest in the Company or any of its subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the issuance of any capital stock
of the Company or any such subsidiary, any such convertible or exchangeable securities or any such
rights, warrants or options; the capital stock of the Company conforms in all material respects to
the description thereof contained in the Registration Statement, the Pricing Disclosure Package and
the Prospectus under the heading “Description of Capital Stock”; and all the outstanding shares of
capital stock or other equity interests of each subsidiary owned, directly or indirectly, by the
Company have been duly and validly authorized and issued, are fully paid and non-assessable
(except, in the case of any foreign subsidiary, for directors’ qualifying shares and except as
otherwise described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus,) and are owned directly or indirectly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any
third party.
(l) Stock Options. With respect to the stock options (the “Stock Options”) granted pursuant
to the stock-based compensation plans of the Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an “incentive stock option” under Section 422
of the Code so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the
date on which the grant of such Stock Option was by its terms to be effective by all necessary
corporate action, including, as applicable, approval by the board of directors of the Company (or a
duly constituted and authorized committee thereof) and any required stockholder
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approval by the necessary number of votes or written consents, and the award agreement
governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each
such grant was made in accordance with the terms of the Company Stock Plans and all other
applicable laws and regulatory rules or requirements, and (iv) each such grant was properly
accounted for in accordance with GAAP in the financial statements (including the related notes) of
the Company.
(m) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all action required to be taken for
the due and proper authorization, execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby has been duly and validly taken.
(n) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(o) The Shares. The Shares to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid for as provided herein, will be
duly and validly issued, will be fully paid and nonassessable and will conform to the descriptions
thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the
issuance of the Shares is not subject to any preemptive or similar rights.
(p) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter, by-laws or other similar governing documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject, or
other agreements governing their respective corporate governance, including the Second Amended and
Restated Investor Rights Agreement, dated September 27, 2007 (as the same may be amended and
restated to date or otherwise superseded, the “Investor Rights Agreement”) and the Amended and
Restated Stockholders Agreement, dated September 27, 2007 (as the same may be amended and restated
to date or otherwise superseded, the “Stockholders Agreement”); or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(q) No Conflicts. The execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Shares by the Company and the consummation by
the Company of the transactions contemplated by this Agreement and the Registration Statement, the
Pricing Disclosure Package and the Prospectus will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which any
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of the property or assets of the Company or any of its subsidiaries is subject, including the
Investor Rights Agreement and Stockholders Agreement, (ii) result in any violation of the
provisions of the charter, by-laws or other similar governing documents of the Company or any of
its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in
the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that
would not, individually or in the aggregate, have a Material Adverse Effect.
(r) No Consents Required. No consent, approval, authorization, order, license, registration
or qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement, the issuance
and sale of the Shares and the consummation of the transactions contemplated by this Agreement,
except for the registration of the Shares under the Securities Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may be required by the Financial
Industry Regulatory Authority, Inc. (“FINRA”), for official listing on the Nasdaq Stock Exchange
and under applicable state securities laws in connection with the purchase and distribution of the
Shares by the Underwriters.
(s) Legal Proceedings. Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or any of its
subsidiaries is or, to the knowledge of the Company, may be a party or to which any property of the
Company or any of its subsidiaries is or, to the knowledge of the Company, may be the subject that,
individually or in the aggregate, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have a Material Adverse Effect; no such
investigations, actions, suits or proceedings are threatened or, to the knowledge of the Company,
contemplated by any governmental or regulatory authority or threatened by others; and (i) there are
no current or pending legal, governmental or regulatory actions, suits or proceedings that are
required under the Securities Act to be described in the Registration Statement, the Pricing
Disclosure Package or the Prospectus that are not so described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus and (ii) there are no statutes, regulations or
contracts or other documents that are required under the Securities Act to be filed as exhibits to
the Registration Statement or described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus that are not so filed as exhibits to the Registration Statement or
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(t) Independent Accountants. KPMG LLP, who has certified certain financial statements of the
Company and its subsidiaries, is an independent registered public accounting firm with respect to
the Company and its subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board (United States) and as required by the
Securities Act.
(u) Title to Real and Personal Property. The Company and its subsidiaries have good title in
fee simple (in the case of real property) to, or have valid rights to lease or otherwise use, all
items of real and personal property and assets that are material to the respective businesses of
the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims
and defects and imperfections of title except those that (i) do not materially interfere with
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the use made and proposed to be made of such property by the Company and its
subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(v) Right to Use. With respect to each material item of domestic and foreign patents, patent
applications; inventions; registered and unregistered trademarks and service marks; trade dress,
logos, slogans, brand names, trade names, internet domain names and corporate names; registered and
unregistered copyrights and copyrightable works, licenses, software, know-how (including trade
secrets and confidential information, systems or procedures) and other intellectual property
(collectively, the “Intellectual Property”) used by the Company and its subsidiaries in the conduct
of their respective businesses as currently conducted and as proposed to be conducted in the
Registration Statement, the Pricing Disclosure Package and the Prospectus: (i) to the Company’s
knowledge, either (x) the Company or one of its subsidiaries is the sole owner and possesses all
right, title, and interest in and to such item, free and clear of any liens and encumbrances (other
than non-exclusive rights granted in the ordinary course of business) or (y) the Company and its
subsidiaries have a right to use the Intellectual Property in the conduct of their respective
businesses as currently conducted and as proposed to be conducted as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; (ii) there is no pending or, to the
knowledge of the Company, threatened action, suit proceeding or claim by others challenging the
validity or scope of any material Intellectual Property right owned or exclusively licensed by the
Company or its subsidiaries; and (iii) none of the material Intellectual Property rights owned or
exclusively licensed by the Company and its subsidiaries has been adjudged invalid or
unenforceable, in whole or in part, by a court or administrative agency, whether foreign or
domestic.
(w) Infringement. (i) To the knowledge of the Company, and except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, the operation of the
business of the Company and its subsidiaries as currently conducted and as proposed to be conducted
in the Registration Statement, the Pricing Disclosure Package and the Prospectus does not infringe
or misappropriate any Intellectual Property of any other person; (ii) except as otherwise disclosed
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no proceedings
are pending, and to the knowledge of the Company, neither the Company nor any of its subsidiaries
has received any charge, complaint, claim, demand, or notice alleging any such infringement or
misappropriation (including any claim that the Company or any of its subsidiaries may need to
obtain a license to a patent owned by a third party); (iii) except as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, to the knowledge of the
Company, no person has infringed or misappropriated any material Intellectual Property owned or
controlled by Company and its subsidiaries in any material respect and (iv) neither the Company nor
any of its subsidiaries has sent any written charge, complaint, claim, demand, or notice to any
person alleging that such person has infringed or misappropriated any material Intellectual
Property right owned or exclusively licensed by Company and its subsidiaries.
(x) Trade Secrets. The Company and its subsidiaries have taken reasonable and customary
actions to protect their rights in and prevent the unauthorized use and disclosure of material
trade secrets and confidential business information (including confidential source code, ideas,
research and development information, know-how, formulas, compositions, technical data,
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designs, drawings, specifications, research records, records of inventions, test information,
financial, marketing and business data, customer and supplier lists and information, pricing and
cost information, business and marketing plans and proposals) owned by the Company and its
subsidiaries, and, to the knowledge of the Company, there has been no unauthorized use or
disclosure.
(y) IT Assets. Except as could not reasonably be expected to have a Material Adverse Effect
and to the knowledge of the Company (i) the computers, software, servers, networks, data
communications lines, and other information technology systems owned, licensed, leased or otherwise
used by the Company or its subsidiaries (excluding any public networks) (collectively, the “IT
Assets”) operate and perform in all material respects as is necessary for the operation of the
business of the Company and its subsidiaries as currently conducted and as proposed to be conducted
as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and
(ii) such IT Assets are not infected by viruses, disabling code or other harmful code.
(z) Policies. The Company and its subsidiaries have in place, comply with, and take
appropriate steps reasonably designed to ensure compliance in all material respects with their
policies and procedures relating to privacy and the collection, storage, use, handling, and
analysis of Personal Data (the “Policies”). The Policies are designed to comply with all
applicable laws and regulatory rules or requirements. “Personal Data” means (i) a natural person’s
name, street address, telephone number, e-mail address, photograph, social security number or tax
identification number, driver’s license number, passport number, credit card number, bank
information, or customer or account number, (ii) any information which would qualify as “personally
identifying information” under the Federal Trade Commission Act, as amended, or any other piece of
information that allows the identification of such natural person, or his or her family, or permits
the collection or analysis of any data related to an identified person’s health or sexual
orientation. The Company and its subsidiaries have at all times made all disclosures to users or
customers required by applicable laws and regulatory rules or requirements, and none of such
disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate
or in violation of any applicable laws and regulatory rules or requirements in any material
respect.
(aa) No Complaints. There is no complaint to or audit, proceeding, investigation (formal or
informal) or claim currently pending against the Company or its subsidiaries, or to the knowledge
of the Company, any of its customers (specific to the customer’s use of the products or services of
the Company) by the Federal Trade Commission or any similar authority in any jurisdiction other
than the Unites States or any other governmental entity, or by any person in respect of the
collection, use or disclosure of Personal Data by the Company or its subsidiaries, and, to the
knowledge of the Company, no such complaint, audit, proceeding, investigation or claim is
threatened.
(bb) Third Party Handling of Data. All agreements with third parties that have access to
Personal Data require the third party to handle Personal Data in a manner that is consistent with
the Policies and otherwise sufficient to meet all applicable laws and regulatory rules or
requirements. The Company and its subsidiaries have confidentiality agreements in place with all
subsidiaries, affiliates, partners, vendors or other persons with access to Personal Data that require such persons to protect such Personal Data in a manner consistent with the obligations
of Company and its Subsidiaries in the Policies.
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(cc) Escrow; Open Source. Neither the Company nor any of its subsidiaries has furnished or
disclosed to any third party any source code for any software material to the Company and its
subsidiaries respective businesses, including any escrow agent, and none of the material products
or services sold by the Company and its subsidiaries includes or incorporates any software that is
subject to license rights customarily referred to as “open source” or “free software” in a manner
that requires any source code that is material to such material products and services (other than
the open source or free software itself) to be made available to the public.
(dd) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in the Registration Statement and the Prospectus
and that is not so described in such documents and in the Pricing Disclosure Package.
(ee) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof received by the Company as described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be
required to register as an “investment company” or an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(ff) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof; and except as
otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there is no material tax deficiency that has been, or would reasonably be expected to
be, asserted against the Company or any of its subsidiaries or any of their respective properties
or assets.
(gg) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except where the failure to possess or make the same would
not, individually or in the aggregate, have a Material Adverse Effect. Except as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor
any of its subsidiaries has received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course, except where the
failure to pay or file or where such revocation, modification or non-renewal has not and would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(hh) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened,
and the Company is not aware of any existing or imminent labor disturbance by, or
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dispute with, the
employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except
as would not have a Material Adverse Effect.
(ii) Compliance with and Liability under Environmental Laws. (i) The Company and its
subsidiaries (a) are, and at all prior times were, in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, requirements, decisions, judgments,
decrees, orders and the common law relating to pollution or the protection of the environment,
natural resources or human health or safety, including those relating to the generation, storage,
treatment, use, handling, transportation, Release or threat of Release of Hazardous Materials
(collectively, “Environmental Laws”), (b) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses, (c) have not received notice of any
actual or potential liability under or relating to, or actual or potential violation of, any
Environmental Laws, including for the investigation or remediation of any Release or threat of
Release of Hazardous Materials, and have no knowledge of any event or condition that would
reasonably be expected to result in any such notice, (d) are not conducting or paying for, in whole
or in part, any investigation, remediation or other corrective action pursuant to any Environmental
Law at any location, and (e) are not a party to any order, decree or agreement that imposes any
obligation or liability under any Environmental Law, and (ii) there are no costs or liabilities
associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the
case of each of (i) and (ii) above, for any such matter, as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described
the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a) there are no
proceedings that are pending, or to the knowledge of the Company, contemplated, against the Company
or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a
party, other than such proceedings regarding which it is reasonably believed no monetary sanctions
of $100,000 or more will be imposed, (b) the Company and its subsidiaries are not aware of any
facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations
under Environmental Laws, including the Release or threat of Release of Hazardous Materials, that,
individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect,
and (c) none of the Company and its subsidiaries anticipates material capital expenditures relating
to any Environmental Laws.
(jj) Hazardous Materials. There has been no storage, generation, transportation, use,
handling, treatment, Release or threat of Release of Hazardous Materials by, relating to or caused
by the Company or any of its subsidiaries (or, to the knowledge of the Company and its
subsidiaries, any other entity (including any predecessor) for whose acts or omissions the Company
or any of its subsidiaries is or would reasonably be expected to be liable) at, on, under or from
any property or facility now or previously owned, operated or leased by the Company or any of its
subsidiaries, or at, on, under or from any other property or facility, in violation of any
Environmental Laws or in a manner or amount or to a location that could reasonably be expected to
result in any liability under any Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. “Hazardous Materials” means any material, chemical, substance, waste, pollutant,
contaminant, compound, mixture, or constituent thereof, in any form or amount, including
petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas
liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials,
brine, and drilling
-14-|
mud, regulated or which can give rise to liability under any Environmental Law.
“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or
through the environment, or in, into, from or through any building or structure.
(kk) Compliance with ERISA. (i) Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the
Company or any member of its “Controlled Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of
1986, as amended (the “Code”)) has any liability (each, a “Plan”) has been maintained in compliance
with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to, ERISA and the Code, except for noncompliance that would not
reasonably be expected to result in material liability to the Company or its subsidiaries; (ii) no
prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any Plan excluding transactions effected pursuant to a statutory or
administrative exemption that would reasonably be expected to result in a material liability to the
Company or its subsidiaries; (iii) no Plan is subject to the funding rules of Section 412 of the
Code or Section 302 of ERISA, the minimum funding standard of Section 412 of the Code or Section
302 of ERISA, or Title IV of ERISA; (iv) neither the Company nor any member of the Controlled Group
has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC, in the ordinary course and without default) in
respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of
ERISA); and (v) there is no pending audit or investigation by the Internal Revenue Service, the
U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental agency
or any foreign regulatory agency with respect to any Plan that would reasonably be expected to
result in material liability to the Company or its subsidiaries. None of the following events has
occurred or is reasonably likely to occur: (x) a material increase in the aggregate amount of
contributions required to be made to all Plans by the Company or its subsidiaries in the current
fiscal year of the Company and its subsidiaries compared to the amount of such contributions made
in the Company and its subsidiaries’ most recently completed fiscal year; or (y) a material
increase in the Company and its subsidiaries’ “accumulated post-retirement benefit obligations”
(within the meaning of Statement of Financial Accounting Standards 106) compared to the amount of
such obligations in the Company and its subsidiaries’ most recently completed fiscal year.
(ll) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that
complies with the requirements of the Exchange Act and that has been designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Commission’s rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure.
(mm) Accounting Controls. The Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or under the
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supervision of,
the Company’s principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted
accounting principles in the United States, including, but not limited to, internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no material
weaknesses in the Company’s internal controls. The Company’s auditors and the Audit Committee of
the Board of Directors of the Company have been advised of: (i) all significant deficiencies and
material weaknesses in the design or operation of internal controls over financial reporting which
have adversely affected or are reasonably likely to adversely affect the Company’s ability to
record, process, summarize and report financial information; and (ii) to the knowledge of the
Company after due inquiry, any fraud, whether or not material, that involves management or other
employees who have a significant role in the Company’s internal controls over financial reporting.
(nn) Insurance. The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as are generally maintained by
companies engaged in the same or similar business and which the Company believes in good faith are
adequate to protect the Company and its subsidiaries and their respective businesses; and neither
the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or necessary to be made in
order to continue such insurance or (ii) any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to continue its business.
(oo) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(pp) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered
-16-|
or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and
no action, suit or proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(qq) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not, directly
or indirectly, use the proceeds of the offering of the Shares hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(rr) No Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it is a party or is
subject, from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or assets to the Company
or any other subsidiary of the Company.
(ss) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Shares.
(tt) No Registration Rights. No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the Securities Act by reason of the filing
of the Registration Statement with the Commission, the issuance and sale of the Shares by the
Company or, to the knowledge of the Company, the sale of the Shares to be sold by the Selling
Stockholders hereunder, except for such rights as have been satisfied or waived.
(uu) No Stabilization. The Company has not taken, directly or indirectly, any action designed
to or that would reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(vv) Business with Cuba. The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida, as amended) relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
(ww) Margin Rules. The application of the proceeds received by the Company from the issuance,
sale and delivery of the Shares as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus will not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(xx) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration
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Statement, the Pricing Disclosure Package or the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(yy) Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Registration Statement, the Pricing Disclosure Package and the Prospectus is not based on or
derived from sources that are reliable and accurate in all material respects.
(zz) Xxxxxxxx-Xxxxx Act. (i) There is and has been no failure on the part of the Company or,
to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as
such, to comply with, and (ii) the Company has taken all necessary actions to ensure that, upon
effectiveness of the Registration Statement, it will be in compliance with, any applicable
provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302 and
906 related to certifications.
(aaa) Status under the Securities Act. At the time of filing the Registration Statement and
any post-effective amendment thereto, at the earliest time thereafter that the Company or any
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the
Securities Act) of the Shares and at the date hereof, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405 under the Securities Act. The Company has paid the registration
fee for this offering pursuant to Rule 457 under the Securities Act.
(bbb) No Ratings. There are no securities or preferred stock of or guaranteed by the Company
or any of its subsidiaries that are rated by a “nationally recognized statistical rating
organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act.
(ccc) Directed Share Program. (i) The Registration Statement, the Pricing Disclosure Package
and the Prospectus, any Preliminary Prospectus and any Issuer Free Writing Prospectuses comply in
all material respects, and any further amendments or supplements thereto will comply in all
material respects, with any applicable laws or regulations of foreign jurisdictions in which the
Pricing Disclosure Package, the Prospectus, any Preliminary Prospectus and any Issuer Free Writing
Prospectus, as amended or supplemented, if applicable, are distributed in connection with the
Directed Share Program, and (ii) no authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental instrumentality or court, other than such
as have been obtained, is necessary under the securities laws and regulations of foreign
jurisdictions in which the Directed Shares are offered outside the United States. The Company has
not offered, or caused the Underwriters to offer, Shares to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (x) a customer or supplier of the
Company to alter the customer’s or supplier’s level or type of business with the
Company, or (y) a trade journalist or publication to write or publish favorable information
about the Company or its products.
(ddd) Investor Rights and Stockholders Agreements. The restrictions contained in Section 2.13
of the Second Amended and Restated Investor Rights Agreement, dated September 27, 2007 (as the same
may be amended and restated to date or otherwise superseded, the “Investor
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Rights Agreement”) and
Section 7.3 of the Amended and Restated Stockholders Agreement, dated September 27, 2007 (as the
same may be amended and restated to date or otherwise superseded, the “Stockholders Agreement”) are
legally, valid, binding and enforceable against the parties thereto, and assuming the
Representatives provide the requisite notice as provided therein, in full force and effect in
accordance with the terms thereof.
(eee) Exchangeable Common Shares. The Company has caused all of the exchangeable common shares
(the “Exchangeable Common Shares”) of its subsidiary Eloqua Corporation to be validly and
irrevocably called for redemption pursuant to the terms of Eloqua Corporation’s Second Articles of
Amendment, dated as of August 25, 2006, and, assuming the consummation of the transactions
contemplated hereby, all of the Exchangeable Common Shares will be ex-changed for an equivalent
number of shares of the Company’s Common Stock concurrently therewith.
4. Representations and Warranties of the Selling Stockholders. Each of the Selling
Stockholders severally and not jointly represents and warrants to each Underwriter and the Company
that:
(a) Required Consents; Authority. All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of this Agreement and the
Power of Attorney (the “Power of Attorney”) and the Custody Agreement (the “Custody Agreement”)
hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; and such Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the Custody Agreement and to
sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder;
this Agreement, the Power of Attorney and the Custody Agreement have each been duly authorized,
executed and delivered by such Selling Stockholder.
(b) No Conflicts. The execution, delivery and performance by such Selling Stockholder of this
Agreement, the Power of Attorney and the Custody Agreement, the sale of the Shares to be sold by
such Selling Stockholder and the consummation by such Selling Stockholder of the transactions
contemplated herein or therein will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of such Selling
Stockholder pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is
bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result
in any violation of the provisions of the charter or by-laws or similar organizational documents of
such Selling Stockholder or (iii) result in the violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory agency, except,
in the case of clauses (i) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the aggregate, have a material adverse
effect on the ability of such Selling Stockholder to consummate the transactions contemplated by
this Agreement, the Power of Attorney and the Custody Agreement.
(c) Title to Shares. Such Selling Stockholder has good and valid title to the Shares to be
sold at the Closing Date or the Additional Closing Date, as the case may be, by such Selling
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Stockholder hereunder, free and clear of all liens, encumbrances, equities or adverse claims; such
Selling Stockholder will have, immediately prior to the Closing Date or the Additional Closing
Date, as the case may be, good and valid title to the Shares to be sold at the Closing Date or the
Additional Closing Date, as the case may be, by such Selling Stockholder, free and clear of all
liens, encumbrances, equities or adverse claims; and, upon delivery of the Shares and payment
therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or adverse claims, will pass to the several Underwriters.
(d) No Stabilization. Such Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or that would reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Shares.
(e) Pricing Disclosure Package. The Pricing Disclosure Package, at the Applicable Time did
not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will
not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that such Selling Stockholder’s representations under this Section
4(e) shall only apply to any untrue statement of a material fact or omission to state a material
fact made in reliance upon and in conformity with any information furnished to the Company in
writing by such Selling Stockholder expressly for use in the Pricing Disclosure Package, it being
understood and agreed that the only such information furnished by any such Selling Stockholder
consists of (A) the legal name and address of such Selling Stockholder set forth in the Selling
Stockholder’s respective footnote that appears under the caption “Principal and selling
stockholders,” (B) the number of shares of Common Stock owned by such Selling Stockholder before
and after the offering (excluding percentages) that appears in the table (and corresponding
footnotes) under the caption “Principal and selling stockholders” and (C) if such Selling
Stockholder is an executive officer, key employee or director of the Company, the biographical
information with respect to such Selling Stockholder that appears under the caption
“Management—Executive Officers, Key Employees and Directors” in the Registration Statement, the
Preliminary Prospectus and the Prospectus (with respect to each Selling Stockholder, collectively,
the “Selling Stockholder Information”).
(f) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary
Prospectus and the Prospectus, such Selling Stockholder (including its agents and representatives,
other than the Underwriters in their capacity as such) has not prepared, used, authorized, approved
or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing
Prospectus, other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed
on Annex B hereto, each electronic road show and any other written communications approved in
writing in advance by the Company and the Representatives.
(g) Registration Statement and Prospectus. As of the applicable effective date of the
Registration Statement and any post-effective amendment thereto, the Registration Statement and any
such post-effective amendment complied and will comply in all material respects with the Securities
Act, and did not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein
not misleading; and as of the date of the Prospectus and any amendment or supplement
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thereto and as
of the Closing Date and as of the Additional Closing Date, as the case may be, the Prospectus will
not contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that such Selling
Stockholder’s representations under this Section 4(g) shall only apply to any untrue statement of a
material fact or omission to state a material fact made in reliance upon and in conformity with
such Selling Stockholder’s Selling Stockholder Information.
(h) Material Information. As of the date hereof, as of the Closing Date and as of the
Additional Closing Date, as the case may be, that the sale of the Shares by such Selling
Stockholder is not and will not be prompted by any material information concerning the Company
which is not set forth in the Registration Statement, the Pricing Disclosure Package or the
Prospectus.
Each of the Selling Stockholders represents and warrants that certificates in negotiable form
representing all of the Shares to be sold by such Selling Stockholders hereunder have been placed
in custody under a Custody Agreement relating to such Shares, in the form heretofore furnished to
you, duly executed and delivered by such Selling Stockholder to American Stock Transfer & Trust
Company, LLC, as custodian (the “Custodian”), and that such Selling Stockholder has duly executed
and delivered Powers of Attorney, in the form heretofore furnished to you, appointing the person or
persons indicated in Schedule II hereto, and each of them, as such Selling Stockholder’s
Attorneys-in-fact (the “Attorneys-in-Fact” or any one of them the “Attorney-in Fact”) with
authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to determine
the purchase price to be paid by the Underwriters to the Selling Stockholders as provided herein,
to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and
otherwise to act on behalf of such Selling Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement.
Each of the Selling Stockholders specifically agrees that the Shares represented by the
certificates held in custody for such Selling Stockholder under the Custody Agreement are subject
to the interests of the Underwriters hereunder, and that the arrangements made by such Selling
Stockholder for such custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. Each of the Selling
Stockholders specifically agrees that the obligations of such Selling Stockholder hereunder shall
not be terminated by operation of law, whether by the death or incapacity of any individual Selling
Stockholder, or, in the case of an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a partnership, corporation or
similar organization, by the dissolution of such partnership, corporation or organization, or by
the occurrence of any other event. If any individual Selling Stockholder or any such executor or
trustee should die or become incapacitated, or if any such estate or trust should be terminated, or
if any such partnership, corporation or similar organization should be dissolved, or if any other
such event should occur, before the delivery of the Shares hereunder, certificates
representing such Shares shall be delivered by or on behalf of such Selling Stockholder in
accordance with the terms and conditions of this Agreement and the Custody Agreement, and actions
taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such
death, incapacity, termination, dissolution or other event had not occurred, regardless of whether
or not the Custodian,
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the Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
5. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A under the Securities Act, will file any
Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; and
will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not
previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time,
on the business day next succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to each of the
Representatives, two signed copies of the Registration Statement as originally filed and each
amendment thereto, in each case including all exhibits and consents filed therewith; and (ii) to
each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each
amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined
below), as many copies of the Prospectus (including all amendments and supplements thereto and each
Issuer Free Writing Prospectus) as the Representatives may reasonably request. As used herein, the
term “Prospectus Delivery Period” means such period of time after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters a prospectus relating to
the Shares is required by law to be delivered (or required to be delivered but for Rule 172 under
the Securities Act) in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed
amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, (i)
when the Registration Statement has become effective; (ii) when any amendment to the Registration
Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus, any
Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication or any amendment to
the Prospectus has been filed or distributed; (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information,
including, but not limited to, any request for information concerning any Testing-the-Waters
Communications; (v) of the issuance by the Commission of any order suspending the effectiveness of
the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any
of the Pricing Disclosure Package, the Prospectus or any Written Testing-the-Waters Communication
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or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of
the Securities Act; (vi) of the occurrence of any event or development within the Prospectus
Delivery Period as a result of which the Prospectus, the Pricing Disclosure Package, any Issuer
Free Writing Prospectus or any Written Testing-the-Waters Communication as then amended or
supplemented would include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances existing when
the Prospectus, the Pricing Disclosure Package, any such Issuer Free Writing Prospectus or Written
Testing-the-Waters Communication is delivered to a purchaser, not misleading; and (vii) of the
receipt by the Company of any notice with respect to any suspension of the qualification of the
Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and the Company will use its best efforts to prevent the issuance of any such
order suspending the effectiveness of the Registration Statement, preventing or suspending the use
of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or any
Written Testing-the-Waters Communication or suspending any such qualification of the Shares and, if
any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event or
development shall occur or condition shall exist as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to
amend or supplement the Prospectus to comply with law, the Company will immediately notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the Representatives may designate
such amendments or supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances existing when
the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply
with law and (2) if at any time prior to the Closing Date (i) any event or development shall occur
or condition shall exist as a result of which the Pricing Disclosure Package as then amended or
supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances existing
when the Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it is
necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company
will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to
such dealers as the Representatives may designate, such amendments or supplements to the Pricing
Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package as
so amended or supplemented will not, in the light of the circumstances existing when the Pricing
Disclosure Package is delivered to a purchaser, be misleading or so that the Pricing Disclosure
Package will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the Shares;
provided that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not
-23-|
otherwise be
required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earnings statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement; provided
that the Company will be deemed to have furnished such statements to its security holders and the
Representatives to the extent they are filed on the Commission’s Electronic Data Gathering,
Analysis, and Retrieval system.
(h) Clear Market. For a period of 180 days after the date of the Prospectus, the Company will
not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, or file with the Commission a registration
statement under the Securities Act relating to, any shares of Stock or any securities convertible
into or exercisable or exchangeable for Stock, or publicly disclose the intention to make any
offer, sale, pledge, disposition or filing, or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of the Stock or any
such other securities, whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Stock or such other securities, in cash or otherwise, without the prior
written consent of the Representatives, other than (x) the Shares to be sold hereunder, (y) any
shares of Stock of the Company issued upon the exercise of options granted under Company Stock
Plans and (z) the entry into an agreement providing for the issuance by the Company of shares of
Stock or any security convertible into or exercisable for shares of Stock in connection with the
bona fide acquisition by the Company or any of its subsidiaries of the securities, business,
property or other assets of another person or entity; provided that in the case of clause
(z), the aggregate number of shares of Stock that the Company may sell or issue or agree to sell or
issue pursuant to clause (z) shall not exceed 5% of the total number of shares of Stock issued and
outstanding immediately following the completion of the transactions contemplated by this
Agreement; and provided further that each recipient of shares of Stock or securities
convertible into or exercisable for Stock pursuant to clause (z) shall execute a lock-up agreement
substantially in the form of Exhibit A hereto. Notwithstanding the foregoing, if (1) during the
last 17 days of the 180-day restricted period, the Company issues an earnings release or material
news or a material event relating to the Company occurs; or (2) prior to the expiration of the
180-day restricted period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 180-day period, the restrictions imposed by this
Agreement shall continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or material event.
If the Representatives, in their sole discretion, agree to release or waive the restrictions
set forth in Section 6(a) or a lock-up letter described in Section 8(o) hereof for an officer or
director of the Company and provide the Company with notice of the impending release or waiver at
least three business days before the effective date of the release or waiver, the Company agrees to
announce the impending release or waiver by a press release substantially in the form
-24-|
of Exhibit C
hereto through a major news service at least two business days before the effective date of the
release or waiver.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares as
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus under
the heading “Use of proceeds”.
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that would reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Stock.
(k) Exchange Listing. The Company will use its best efforts to list for quotation the Shares
on the Nasdaq Global Market (the “Nasdaq Global Market”).
(l) Reports. Until the fifth anniversary of the date hereof, the Company will furnish to the
Representatives, as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities exchange or
automatic quotation system; provided the Company will be deemed to have furnished such reports and
financial statements to the Representatives to the extent they are filed on the Commission’s
Electronic Data Gathering, Analysis, and Retrieval system.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
(n) Filings. The Company will file with the Commission such reports as may be required by
Rule 463 under the Securities Act.
(o) Directed Share Program. The Company will comply with all applicable securities and other
laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in
connection with the Directed Share Program.
(p) Lock-Up Restrictions in Investor Rights Agreement and Stockholders Agreement. So long as
any lock-up agreement substantially in the form of Exhibit A hereto (a “Lock-up Agreement”) is
effective (including any extension thereof), the Company hereby agrees that, without the prior
written consent of the Representatives, it will not (i) waive, with respect to any individual or
entity party thereto, the lock-up restrictions contained in Section 2.13 of the Investor Rights
Agreement or Section 7.3 of the Stockholders Agreement or (ii) allow the parties to either of the
Investor Rights Agreement or Stockholders Agreement to (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, or file
with the Commission a registration statement under the Securities Act relating to,
any shares of Stock or any securities convertible into or exercisable or exchangeable for
Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing,
or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Stock or any such other securities, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Stock or such
other securities,
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in cash or otherwise, without the prior written consent of the Representatives,
other than the Shares to be sold hereunder and any shares of Stock of the Company issued upon the
exercise of options granted under Company Stock Plans, in contravention of either of the Investor
Rights Agreement or Stockholders Agreement. The Company further hereby agrees that, in the event
the 180-day restricted period is extended pursuant to any Lock-Up Agreement, it will extend the
restrictions under Section 2.13 of the Investor Rights Agreement and Section 7.3 of the
Stockholders Agreement to the same extent that the 180-day restricted period is extended pursuant
to any such Lock-Up Agreement.
(q) Emerging Growth Company. The Company will promptly notify the Representative if the
Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of
distribution of Shares within the meaning of the Securities Act and (ii) completion of the 180-day
restricted period referred to in Section 5(h) hereof.
6. Further Agreements of the Selling Stockholders. Each of the Selling Stockholders
covenants and agrees with each Underwriter that:
(a) Clear Market. It has executed and delivered a lock-up agreement substantially in the form
of Exhibit A hereto.
(b) Tax Form. It will deliver to the Representatives prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by the Treasury Department regulations in lieu thereof) in order to
facilitate the Underwriters’ documentation of their compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated.
7. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for use
of, and will not use, authorize use of, refer to or participate in the planning for use of, any
“free writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use
of any written information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through incorporation by reference) in
the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer
Free Writing Prospectus listed on Annex B or prepared pursuant to Section 3(c) or Section 4(c)
above (including any electronic road show), or (iii) any free writing prospectus prepared by such
underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Shares unless such terms have previously
been included in a free writing prospectus filed with the Commission.
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(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company and the Selling Stockholders if any
such proceeding against it is initiated during the Prospectus Delivery Period).
8. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by the Company and each
of the Selling Stockholders of their respective covenants and other obligations hereunder and to
the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to
Section 8A under the Securities Act shall be pending before or threatened by the Commission; the
Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission
under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required
by Rule 433 under the Securities Act) and in accordance with Section 5(a) hereof; and all requests
by the Commission for additional information shall have been complied with to the reasonable
satisfaction of the Representatives.
(b) Representations and Warranties. The respective representations and warranties of the
Company and the Selling Stockholders contained herein shall be true and correct on the date hereof
and on and as of the Closing Date or the Additional Closing Date, as the case may be; and the
statements of the Company and its officers and of each of the Selling Stockholders and their
officers made in any certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date or the Additional Closing Date, as the case may be.
(c) No Material Adverse Change. No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Pricing
Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding
any amendment or supplement thereto) and the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares
on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the
manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(d) Officers’ Certificate. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, (x) a certificate of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representatives (i) confirming that such officers have
carefully reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus
and, to the best knowledge of such officers, the representations of the Company set forth in
Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations
and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date or the Additional Closing Date, as the case
may be, and (iii) to the effect set forth in paragraphs (a) and (c) above and (y) a certificate of
each of the Selling Stockholders, in form and substance reasonably satisfactory to the
Representatives,
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(A) confirming that the representations of such Selling Stockholder set forth in
Sections 4(e), 4(f) and 4(g) hereof are true and correct and (B) confirming that the other
representations and warranties of such Selling Stockholder in this Agreement are true and correct
and that the such Selling Stockholder has complied with all agreements and satisfied all conditions
on their part to be performed or satisfied hereunder at or prior to such Closing Date.
(e) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, KPMG LLP shall have furnished to the Representatives, at the
request of the Company, letters, dated the respective dates of delivery thereof and addressed to
the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing
statements and information of the type customarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information contained
in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided, that
the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall
use a “cut-off” date no more than three business days prior to such Closing Date or such Additional
Closing Date, as the case may be.
(f) Opinion and 10b-5 Statement of Counsel for the Company. Xxxxxxx Procter LLP, counsel for
the Company, shall have furnished to the Representatives, at the request of the Company, their
written opinion and 10b-5 statement, dated the Closing Date or the Additional Closing Date, as the
case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex A-1 hereto.
(g) Opinion of Counsel for Certain Selling Stockholders. Xxxxxxx Procter LLP, counsel for
certain Selling Stockholders, shall have furnished to the Representatives, at the request of such
Selling Stockholders, their written opinion, dated the Closing Date or the Additional Closing Date,
as the case may be, and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Annex A-2 hereto.
(h) Opinion of Canadian Counsel for the Company and Certain Selling Stockholders. Gowling
Xxxxxxx Xxxxxxxxx LLP, Canadian counsel for the Company and certain Selling Stockholders, shall
have furnished to the Representatives, at the request of the Company and such Selling Stockholders,
their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be,
and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex A-3 hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall
have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an
opinion and 10b-5 statement of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, with respect to
such matters as the Representatives may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to pass upon such
matters.
(j) Certificate as to Certain Financial Information. The Representatives shall have received
on and as of the date hereof, the Closing Date and any Additional Closing Date, as the case may be,
a certificate addressed to the Underwriters of Xxxxxx X. Xxxxxx, Chief Financial Officer, Treasurer
and Secretary of the Company, covering certain financial and accounting
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information in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, in form and substance
reasonably satisfactory to the Representatives, to the effect set forth in Annex A-4 hereto.
(k) Canadian Exchangeable Shares. On or prior to the Closing Date, all of the transactions
that are to occur in order to consummate the redemption of all of the Exchangeable Common Shares
shall have been consummated and all of the Exchangeable Common Shares shall have been exchanged for
an equivalent number of shares of Common Stock, and the Company shall provide evidence reasonably
satisfactory to the Representatives on behalf of the Underwriters of the consummated redemption and
exchange.
(l) No Legal Impediment to Issuance and/or Sale. No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state
or foreign governmental or regulatory authority that would, as of the Closing Date or the
Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares by the
Company or the sale of the Shares by the Selling Stockholders; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the Closing Date or the
Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares by the
Company or the sale of the Shares by the Selling Stockholders.
(m) Good Standing. The Representatives shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company and its subsidiaries in their respective jurisdictions of organization and their good
standing as foreign entities in such other jurisdictions as the Representatives may reasonably
request, in each case in writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(n) Exchange Listing. On the Closing Date, the Shares to be delivered on the Closing Date or
Additional Closing Date, as the case may be, shall have been approved for listing on the Nasdaq
Global Market, subject to official notice of issuance.
(o) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, between you and certain shareholders, officers and directors of the Company relating to
sales and certain other dispositions of shares of Stock or certain other securities, including,
without limitation, the Directed Shares, delivered to you on or before the date hereof, shall be
full force and effect on the Closing Date or Additional Closing Date, as the case may be; and
restrictions contained in Section 2.13 of the Investor Rights Agreement and Section 7.3 of the
Stockholders Agreement shall be in full force and effect on Closing Date or Additional Closing
Date, as the case may be.
(p) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company and the Selling Stockholders shall have furnished to the
Representatives such further certificates and documents as the Representatives may reasonably
request.
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All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
9. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or
several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or necessary in order to
make the statements therein, not misleading, (ii) or any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or supplement thereto),
any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act or any
Pricing Disclosure Package (including any Pricing Disclosure Package that has subsequently been
amended), or caused by any omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in light of the circumstances under which they were made,
not misleading, in each case except insofar as such losses, claims, damages or liabilities arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use
therein, it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (c) below.
(b) Indemnification of the Underwriters by the Selling Stockholders. Each of the Selling
Stockholders severally and not jointly in proportion to the number of Shares to be sold by such
Selling Stockholder hereunder agrees to indemnify and hold harmless each Underwriter, its
affiliates, directors and officers and each person, if any, who controls such Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the indemnity set forth in paragraph (a) above, in each case except to the extent, but
only to the extent, that such losses, claims, damages or liabilities arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information furnished to the Company in writing by or on behalf of
such Selling Stockholder expressly for use in the Registration Statement, the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus, any Written
Testing-the-Waters Communication or any Pricing Disclosure Package, it being understood and agreed
that the only such information furnished by or on behalf of such Selling Stockholder consists of
such Selling Stockholder’s Selling Stockholder Information. No Selling Stockholder shall be liable
under the indemnity agreement contained in this paragraph in excess of an amount equal to the
aggregate net proceeds (after deducting underwriting commissions and discounts but before
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deducting
expenses) applicable to the Shares sold by such Selling Stockholder pursuant to this Agreement.
(c) Indemnification of the Company and the Selling Stockholders. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers
who signed the Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each of the
Selling Stockholders to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to such Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use in the Registration Statement,
the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, any
Written Testing-the-Waters Communication or any Pricing Disclosure Package, it being understood and
agreed upon that the only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the first and second sentence of the third paragraph under the
caption “Underwriting” and the information contained in the first sentence of the seventeenth
paragraph under the caption “Underwriting.”
(d) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to the preceding paragraphs of this Section
9, such person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under the preceding paragraphs of this Section 9 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided further that the failure to notify the Indemnifying Person shall not relieve it
from any liability that it may have to an Indemnified Person otherwise than under the preceding
paragraphs of this Section 9. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying
Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not,
without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent
the Indemnified Person in such proceeding and shall pay the reasonable fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal defenses available to it
that are materially different from or in addition to those available to the Indemnifying Person; or
(iv) the named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interest between them. It is
understood and
agreed that the Indemnifying Person shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate
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firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of such Underwriter
shall be designated in writing by X.X. Xxxxxx Securities LLC, any such separate firm for the
Company, its directors, its officers who signed the Registration Statement and any control persons
of the Company shall be designated in writing by the Company and any such separate firm for the
Selling Stockholders shall be designated in writing by the Attorneys-in-Fact or any one of them.
The Indemnifying Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from
all liability on claims that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b) and (c) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders, on the one hand, and the Underwriters on the other, from the offering of the
Shares and with the proportions among the Company and the Selling Stockholders to reflect the
relative fault of the Company and the Selling Stockholders 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) but also the relative fault of the Company and
the Selling Stockholders, on the one hand, and the Underwriters on the other, in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations and with the proportions among the Company and the
Selling Stockholders to reflect the relative fault of the Company and the Selling Stockholders.
The relative benefits received by the Company and the Selling Stockholders, on the one hand, and
the Underwriters on the other, shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company and the Selling Stockholders from the
sale of the Shares and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate offering price of the Shares. The
relative
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fault of the Company and the Selling Stockholders, on the one hand, and the Underwriters
on the other, and among the Company and the Selling Stockholders, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company and the Selling Stockholders or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
No Selling Stockholder shall be liable under the indemnity agreement contained in this paragraph in
excess of an amount equal to the aggregate net proceeds (after deducting underwriting commissions
and discounts but before deducting expenses) applicable to the Shares sold by such Selling
Stockholder pursuant to this Agreement
(f) Limitation on Liability. The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Selling Stockholders or the Underwriters were
treated as one entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (e) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (e) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 9, in no event shall (i) an
Underwriter be required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter with respect to the offering of
the Shares exceeds the amount of any damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission or (ii) a
Selling Stockholder be required to contribute, other than to the extent the losses, claims,
damages, liabilities or expenses arose from the written information furnished to the Company by
such Selling Stockholder expressly for use in the Registration Statement, the Pricing Disclosure
Package or the Prospectus, any amount in excess of the amount by which the total net proceeds
received by such Selling Stockholder (before deducting expenses) exceeds the amount of any damages
that such Selling Stockholder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 9 are several in proportion to
their respective purchase obligations hereunder and not joint. Moreover, each Selling Stockholder’s
obligations to contribute pursuant to this Section 9 are several and not joint in proportion to the
number of Shares sold by such Selling Stockholder.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
(h) Directed Share Program Indemnification. The Company agrees to indemnify and hold harmless
Deutsche Bank, each person, if any, who controls Deutsche Bank within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act and each
affiliate of Deutsche Bank within the meaning of Rule 405 of the Securities Act (“Deutsche
Bank Entities”) from and against any and all losses, claims, damages and liabilities (including,
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without limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in any material prepared by or with the consent of the
Company for distribution to Participants in connection with the Directed Share Program or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the failure of any
Participant to pay for and accept delivery of Directed Shares that the Participant agreed to
purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program,
other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of the Deutsche Bank
Entities.
(i) In case any proceeding (including any governmental investigation) shall be instituted
involving any Deutsche Bank Entity in respect of which indemnity may be sought pursuant to Section
9(h), the Deutsche Bank Entity seeking indemnity, shall promptly notify the Company in writing and
the Company, upon request of the Deutsche Bank Entity, shall retain counsel reasonably satisfactory
to the Deutsche Bank Entity to represent the Deutsche Bank Entity and any others the Company may
designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any Deutsche Bank Entity shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of
such Deutsche Bank Entity unless (i) the Company shall have agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including any impleaded parties) include both the
Company and the Deutsche Bank Entity and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. The Company shall
not, in respect of the legal expenses of the Deutsche Bank Entities in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for all Deutsche Bank
Entities. Any such separate firm for the Deutsche Bank Entities shall be designated in writing by
Deutsche Bank. The Company shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Company agrees to indemnify the Deutsche Bank Entities from and against any loss
or liability by reason of such settlement or judgment. The Company shall not, without the prior
written consent of Deutsche Bank, effect any settlement of any pending or threatened proceeding in
respect of which any Deutsche Bank Entity is or could have been a party and indemnity could have
been sought hereunder by such Deutsche Bank Entity, unless such settlement includes an
unconditional release of the Deutsche Bank Entities from all liability on claims that are the
subject matter of such proceeding.
(j) To the extent the indemnification provided for in Section 9(g) is unavailable to a
Deutsche Bank Entity or insufficient in respect of any losses, claims, damages or liabilities
referred to therein (other than as a result of the limitations imposed on indemnification described
in Section 9(h)), then the Company in lieu of indemnifying the Deutsche Bank Entity thereunder,
shall contribute to the amount paid or payable by the Deutsche Bank Entity as a result of such
losses, claims, damages or liabilities (1) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Deutsche Bank Entities on the
other
hand from the offering of the Directed Shares or (2) if the allocation provided by clause
9(j)(1) above is not permitted by applicable law, in such proportion as is appropriate to reflect
not only
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the relative benefits referred to in clause 9(j)(1) above but also the relative fault of
the Company on the one hand and of the Deutsche Bank Entities on the other hand in connection with
any statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Deutsche Bank Entities on the other hand in connection with the offering of
the Directed Shares shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Directed Shares (before deducting expenses) and the total underwriting
discounts and commissions received by the Deutsche Bank Entities for the Directed Shares, bear to
the aggregate public offering price of the Directed Shares. If the loss, claim, damage or liability
is caused by an untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact, the relative fault of the Company on the one hand and the
Deutsche Bank Entities on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement or the omission or alleged omission relates to
information supplied by the Company or by the Deutsche Bank Entities and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
(k) The Company and the Deutsche Bank Entities agree that it would not be just or equitable if
contribution pursuant to Sections 7(h) through (j) above were determined by pro rata allocation
(even if the Deutsche Bank Entities were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations referred to in
Section 9(j). The amount paid or payable by the Deutsche Bank Entities as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by the Deutsche Bank Entities in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of Sections 9(h) through (j), no Deutsche Bank
Entity shall be required to contribute any amount in excess of the amount by which the total price
at which the Directed Shares distributed to the public were offered to the public exceeds the
amount of any damages that such Deutsche Bank Entity has otherwise been required to pay. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in Sections 9(h) through (k) are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
(l) The indemnity and contribution provisions contained in Sections 9(h) through (k) shall
remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Deutsche Bank Entity or the Company, its
officers or directors or any person controlling the Company and (iii) acceptance of and payment for
any of the Directed Shares.
10. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
11. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company and the Selling Stockholders, if after the execution and
delivery of this Agreement and prior to the Closing Date or, in the case of the Option Shares,
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prior to the Additional Closing Date (i) trading generally shall have been suspended or materially
limited on or by any of the New York Stock Exchange, the American Stock Exchange, The Nasdaq Stock
Market, the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended
on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities; or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with
the offering, sale or delivery of the Shares on the Closing Date or the Additional Closing Date, as
the case may be, on the terms and in the manner contemplated by this Agreement, the Pricing
Disclosure Package and the Prospectus.
12. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Shares by other persons satisfactory to the Company and the Selling Stockholders
on the terms contained in this Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Shares, then
the Company and the Selling Stockholders shall be entitled to a further period of 36 hours within
which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such
Shares on such terms. If other persons become obligated or agree to purchase the Shares of a
defaulting Underwriter, either the non-defaulting Underwriters or the Company and the Selling
Stockholders may postpone the Closing Date or the Additional Closing Date, as the case may be, for
up to five full business days in order to effect any changes that in the opinion of counsel for the
Company, counsel for the Selling Stockholders or counsel for the Underwriters may be necessary in
the Registration Statement and the Prospectus or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to the Registration Statement and
the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in Schedule 1 hereto that, pursuant to this Section 12, purchases Shares that a defaulting
Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date, then the Company and
the Selling Stockholders shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares that such Underwriter agreed to purchase hereunder on such date plus
such Underwriter’s pro rata share (based on the number of
Shares that such Underwriter agreed to purchase on such date) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
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(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, exceeds
one-eleventh of the aggregate amount of Shares to be purchased on such date, or if the Company and
the Selling Stockholders shall not exercise the right described in paragraph (b) above, then this
Agreement or, with respect to any Additional Closing Date, the obligation of the Underwriters to
purchase Shares on the Additional Closing Date, shall terminate without liability on the part of
the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 12
shall be without liability on the part of the Company, except that the Company and the Selling
Stockholders will continue to be liable for the payment of expenses as set forth in Section 13
hereof and except that the provisions of Section 9 hereof shall not terminate and shall remain in
effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Stockholders or any non-defaulting Underwriter for damages caused
by its default.
13. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company and the Selling Stockholders will pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Shares and any taxes payable in that connection; (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus
(including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii)
the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and
expenses incurred in connection with the registration or qualification and determination of
eligibility for investment of the Shares under the state or foreign securities or blue sky laws of
such jurisdictions as the Representatives may designate and the preparation, printing and
distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the
Underwriters), provided that the reimbursement obligation for such fees and expenses does not
exceed $15,000; (vi) the cost of preparing stock certificates; (vii) the costs and charges of any
transfer agent and any registrar; (viii) all expenses and application fees incurred in connection
with any filing with, and clearance of the offering by, FINRA, provided that the reimbursement
obligation for any such fees and expenses representing fees and expenses of counsel for the
Underwriters shall be documented and not exceed $25,000 (it being agreed and understood that any
other related fees and expenses, including filing fees, shall be reimbursed in full); (ix) all
expenses incurred by the Company in connection with any “road show” presentation and/or
presentation involving a Written Testing-the-Waters Communication to potential investors, it being
understood that except as provided in this Section 13 or Section 9 hereof, the Underwriters will
pay all of the travel, lodging and other expenses of the Underwriters or any of their employees
incurred by them in connection with the “road show” and/or presentation involving a Written Testing-the-Waters
Communication to potential investors, including the pro rata (based on the number of passengers
from the Company and the Selling Stockholders on the one hand and the Underwriters on the other)
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cost of any aircraft chartered in connection with the “road show” and/or presentation involving a
Written Testing-the-Waters Communication to potential investors, it being further understood that
the Selling Stockholders will pay all of their own costs and expenses, including the fees of their
respective counsel and stock transfer taxes on the sale of their shares, except as provided in any
separate agreement relating to the allocation of payment of expenses between the Company, on the
one hand, and the Selling Stockholders, on the other hand; (x) the reasonable and documented fees
and disbursements of counsel incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program; and (xi) all expenses and application
fees related to the listing of the Shares on the Nasdaq Global Market.
(b) If (i) this Agreement is terminated pursuant to Section 11, (ii) the Company or the
Selling Stockholders for any reason fail to tender the Shares for delivery to the Underwriters or
(iii) the Underwriters decline to purchase the Shares for any reason permitted under this
Agreement, the Company and the Selling Stockholders agree to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably
incurred by the Underwriters in connection with this Agreement and the offering contemplated
hereby.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 9 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
15. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Selling Stockholders and the Underwriters contained
in this Agreement or made by or on behalf of the Company, the Selling Stockholders or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive
the delivery of and payment for the Shares and shall remain in full force and effect, regardless of
any termination of this Agreement or any investigation made by or on behalf of the Company, the
Selling Stockholders or the Underwriters.
16. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule
405 under the Securities Act ; and (d) the term “significant subsidiary” has the meaning set forth
in Rule 1-02 of Regulation S-X under the Exchange Act.
17. Miscellaneous.
(a) Authority of X.X. Xxxxxx Securities LLC and Deutsche Bank Securities Inc. Any action by
the Underwriters hereunder may be taken by X.X. Xxxxxx Securities LLC and Deutsche
-38-|
Bank Securities
Inc. on behalf of the Underwriters, and any such action taken by X.X. Xxxxxx Securities LLC or
Deutsche Bank Securities Inc. shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o X.X.
Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention: Equity Syndicate Desk and c/o Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, XX 00000 (fax: (000) 000-0000), Attention: ECM Syndicate Desk with
a copy to the General Counsel (fax: (000) 000-0000). Notices to the Company shall be given to it
at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, (fax: (000) 000-0000; Attention: Chief
Executive Officer with a copy to Xxxxxxx Procter LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 (fax: (000)
000-0000); Attention: Xxxxxxxxxxx X. Xxxxxx, Esq. Notices to the Selling Stockholders shall be
given to the Attorneys-in-Fact at Eloqua, Inc., 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000, (fax: (000) 000-0000; Attention: Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxxx with a copy to Xxxxxxx
Procter LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 (fax: (000) 000-0000); Attention: Xxxxxxxxxxx X.
Xxxxxx, Esq.
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or
related to this Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such state.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[Signature Pages Follow]
-39-|
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, | ||||||
| ELOQUA, INC. | ||||||
| By: | ||||||
| [SELLING STOCKHOLDERS] | ||||||
| By: | ||||||
| Title: | ||||||
| By: | ||||||
| Title: | ||||||
| As Attorneys-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule 2 to this Agreement. |
||||||
Accepted: __________, 2012
X.X. XXXXXX SECURITIES LLC
| For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. |
||||
By: |
||||
| DEUTSCHE BANK SECURITIES INC. | ||||
| For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. |
||||
By: |
||||
By: |
||||
Schedule 1
| Underwriter | Number of Shares | |||
X.X. Xxxxxx Securities LLC |
||||
Deutsche Bank Securities Inc. |
||||
JMP Securities LLC |
||||
Xxxxxxx & Company, LLC |
||||
Pacific Crest Securities LLC |
||||
| Total |
Schedule 2
| Number of | Number of | |||
| Selling Stockholders: | Underwritten Shares: | Option Shares: | ||
Schedule 3
Written Testing-the-Waters Communications
[Description of any Written Testing-the-Waters Communications distributed by the Company]
Annex A-1
[Form of Opinion of Counsel for the Company]
Annex A-2
[Form of Opinion of Counsel For
The Selling Stockholders]
The Selling Stockholders]
Annex A-3
[Form of Opinion of Canadian Counsel For
The Company]
The Company]
Annex A-4
_____________, 2012
Ladies and Gentlemen:
I, Xxxxxx X. Xxxxxx, in my capacity as Chief Financial Officer and Treasurer of Eloqua, Inc.,
a Delaware corporation (the “Company”), and having responsibility for financial matters
with respect to the Company, hereby certify on behalf of the Company that I have reviewed the
Registration Statement, including the Preliminary Prospectus, the Prospectus[,](1)
[and](2) the Pricing Disclosure Package [and the final Prospectus filed pursuant to Rule
424(b)](1) (collectively, the “Offering Materials”), in each case relating to
the initial public offering by the Company and Selling Stockholders of the Company’s Common Stock.
This Chief Financial Officer’s Certificate is being provided pursuant to Section 8(j) of the
Underwriting Agreement, dated _______, 2012, among the Company, the Representatives of the several
Underwriters and the Selling Stockholders (the “Underwriting Agreement”). Capitalized
terms used herein, but not otherwise defined, have the meanings ascribed to them in the
Underwriting Agreement.
In connection with the foregoing, I hereby certify as follows:
1. I have reviewed each item marked on the pages of the Offering Materials attached hereto as
Schedule A, and compared each item to the corresponding amount indicated in, or recomputed
such item based upon amounts derived from, and found the same to be in agreement with: (i) the
financial statements and/or accounting records, as applicable, of the Company as of and for the
periods indicated as updated to the date hereof; (ii) the Company’s general ledger or other
accounting books and records as of and for the periods indicated as updated to the date hereof;
and/or (iii) a schedule or report prepared by the Company from the Company’s accounting and/or
operational records as of and for the periods indicated as updated to the date
hereof.1
2. Nothing has come to my attention that has caused me to believe that the information
marked on Schedule A and referred to in paragraph 1 above is not accurate and does not
fairly present, in all material respects, the financial condition, results of operations and other
applicable data of the Company and its subsidiaries as of and for the periods indicated.
| By: | ||||||
| Name: | ||||||
| Title: | Chief Financial Officer and Treasurer |
| (1) | To be included in certificate delivered at closing or any over-allotment closing date. | |
| (2) | To be included in certificate delivered at pricing. | |
|
|
||
| 1 | Note: Covered items shall be limited to specified items not covered by the auditor’s comfort letter. | |
Annex B
a. Pricing Disclosure Package
[List each Issuer Free Writing Prospectus to be included in the Pricing Disclosure Package]
b. Pricing Information Provided Orally by Underwriters
[Set out key information included in script that will be used by Underwriters to confirm
sales]
Exhibit A
FORM OF LOCK-UP AGREEMENT
____ __, 2012
X.X. XXXXXX SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
As Representatives of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
DEUTSCHE BANK SECURITIES INC.
As Representatives of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Eloqua, Inc. — Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Eloqua, Inc., a
Delaware corporation (the “Company”) and the Selling Stockholders listed on Schedule 2 to the
Underwriting Agreement, providing for the public offering (the “Public Offering”) by the several
Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”) of common stock
of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of X.X. Xxxxxx
Securities LLC and Deutsche Bank Securities Inc. on behalf of the Underwriters, the undersigned
will not, during the period ending 180 days after the date of the final prospectus relating to the
Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock, $0.0001 per share par value, of the Company (the “Common Stock”) or any securities
convertible into or exercisable or exchangeable for Common Stock (including without limitation,
Common Stock or such other securities which may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities and Exchange Commission
and securities which may be issued upon exercise of a stock option or warrant), or publicly
disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Common Stock or such other securities, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (3) make any demand for or exercise any right with
respect to the registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock without the prior written consent of the
Representatives, in each case other than (A) the Securities to be sold by the undersigned pursuant
to the Underwriting Agreement, (B) transfers of shares of Common Stock or other securities of the
Company as a bona fide gift or gifts, (C) transfers of shares of Common Stock or other securities
of the Company to a trust or limited family partnership for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, (D) transfers of shares of Common Stock or
other securities of the Company by will, other testamentary document or intestate succession to the
legal representative, heir, beneficiary or a member of the immediate family of the undersigned in a
transaction not involving a disposition for value, (E) the exercise, including by “net” exercise,
of any options or warrants to acquire shares of Common Stock or the conversion of any convertible
security into Common Stock, (F) the sale or transfer to the Company of such number of shares of
Common Stock acquired by the undersigned in connection with the exercise of options or warrants on
a “net” exercise basis described in the foregoing clause (E) necessary to generate only such amount
of cash needed for the payment of taxes (including estimated taxes) due as a result of the exercise
of such options or warrant, (G) transfers or distributions of shares of Common Stock to members,
limited partners, stockholders or affiliates of, or any investment fund or other entity that
controls or manages, the undersigned, provided that the transfer or distribution shall not involve
a disposition for value, and (H) transactions relating to shares of Common Stock or any security
convertible into Common Stock acquired in open market transactions after the completion of the
Public Offering, provided that no filing under Section 16(a) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”) shall be required or shall be made during the 180-day period
referred to above (and any extension thereof as provided herein) in connection with subsequent
sales of Common Stock or any security convertible into Common Stock acquired in such open market
transactions; provided that in the case of any transfer or distribution pursuant to clause
(B), (C), (D), or (G), each donee or distributee shall execute and deliver to the Representatives a
lock-up letter in the form of this paragraph; and provided, further, that in the
case of any transfer or distribution pursuant to clause (B), (C), (D) or (G), no filing by any
party (donor, donee, transferor or transferee) under the Exchange Act or other public announcement
shall be required or shall be made voluntarily in connection with such transfer or distribution
(other than a filing on a Form 5 made after the expiration of the 180-day period referred to
above). If the undersigned is an officer or director of the Company, the undersigned further
agrees that the foregoing provisions shall be equally applicable to any Company-directed Securities
the undersigned may purchase in the Public Offering.
The foregoing restrictions shall not apply to the establishment of any contract, instruction
or plan (a “Plan”) that satisfies all of the requirements of Rule 10b5-1(c)(1) under the Exchange
Act; provided that no sales of the undersigned’s Securities shall be made pursuant to such
a Plan prior to the expiration of the 180-day restricted period (and any extension thereof as
provided herein), and such a Plan may only be established if no public announcement of the
establishment or existence thereof and no filing with the Securities and Exchange Commission or
other regulatory authority in respect thereof or transactions thereunder or contemplated thereby,
by the undersigned, the Company or any other person, shall be required, and no such announcement or
filing is made voluntarily, by the undersigned, the Company or any other person, prior to the
expiration of the 180-day restricted period (and any extension thereof as provided herein).
If the undersigned is an officer or director of the Company, (i) X.X. Xxxxxx Securities LLC
and Deutsche Bank Securities Inc. on behalf of the Underwriters agree that, at least three business
days before the effective date of any release or waiver of the foregoing restrictions in connection
with a transfer of shares of Common Stock, X.X. Xxxxxx Securities LLC and Deutsche Bank Securities
Inc. on behalf of the Underwriters will notify the Company of the impending release or waiver, and
(ii) the Company has agreed in the Underwriting Agreement to announce the impending release or
waiver by press release through a major news service at least two business days before the
effective date of the release or waiver. Any release or waiver granted by X.X. Xxxxxx Securities
LLC and Deutsche Bank Securities Inc. on behalf of the Underwriters hereunder to any such officer
or director shall only be effective two business days after the publication date of such press
release. The provisions of this paragraph will not apply if (a) the release or waiver is effected
solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to
be bound by the same terms described in this letter to the extent and for the duration that such
terms remain in effect at the time of the transfer.
The undersigned further agrees that the foregoing restrictions shall be equally applicable to
any issuer-directed shares of Common Stock the undersigned may purchase in the Public Offering.
Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted
period, the Company issues an earnings release or material news or a material event relating to the
Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company
announces that it will release earnings results during the 16-day period beginning on the last day
of the 180-day period, the restrictions imposed by this Letter Agreement shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
Notwithstanding anything to the contrary contained herein, if (a) the Underwriting Agreement
does not become effective by October 31, 2012, or (b) after becoming effective, the Underwriting
Agreement (other than the provisions thereof which survive termination) shall terminate or be
terminated prior to payment for and delivery of the Common Stock to be sold thereunder, then the
undersigned shall be released from all obligations under this Letter Agreement. The undersigned
understands that the Underwriters are entering into the Underwriting Agreement and proceeding with
the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement and any claim, controversy or dispute arising under or related to this
Letter Agreement shall be governed by and construed in accordance with the laws of the State of New
York, without regard to the conflict of laws principles thereof.
| Very truly yours, | ||||||
| [NAME OF STOCKHOLDER] |
||||||
| By: | ||||||
| Title: | ||||||
Exhibit B
[Form of Waiver of Lock-up]
X.X. XXXXXX SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
Eloqua, Inc.
Public Offering of Common Stock
Public Offering of Common Stock
, 2012
[Name and Address of
Officer or Director
Requesting Waiver]
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered to you in connection with the offering by Eloqua, Inc. (the
“Company”) of shares of common stock, $0.0001 par value (the “Common Stock”), of the Company
and the lock-up letter dated , 2012 (the “Lock-up Letter”), executed by you in connection with
such offering, and your request for a [waiver] [release] dated , 20 , with respect to
shares of Common Stock (the “Shares”).
X.X. Xxxxxx Securities LLC and Deutsche Bank Securities Inc. hereby agree to [waive] [release]
the transfer restrictions set forth in the Lock-up Letter, but only with respect to the Shares,
effective , 20 ; provided, however, that such [waiver] [release] is
conditioned on the Company announcing the impending [waiver] [release] by press release through a
major news service at least two business days before effectiveness of such [waiver] [release].
This letter will serve as notice to the Company of the impending [waiver] [release].
Except as expressly [waived] [released] hereby, the Lock-up Letter shall remain in full force
and effect.
Yours very truly,
[Signature of X.X. Xxxxxx Securities LLC Representative]
[Name of X.X. Xxxxxx Securities LLC Representative]
[Signature of Deutsche Bank Securities Inc. Representative]
[Name of Deutsche Bank Securities Inc. Representative]
cc: Company
Exhibit C
[Form of Press Release]
Eloqua, Inc.
[Date]
[Date]
Eloqua, Inc. (the “Company”) announced today that X.X. Xxxxxx Securities LLC and Deutsche Bank
Securities Inc., the lead book-running managers in the Company’s recent public sale of shares
of common stock, is [waiving] [releasing] a lock-up restriction with respect to shares of the
Company’s common stock held by [certain officers or directors] [an officer or director] of the
Company. The [waiver] [release] will take effect on , 20 , and the shares may be sold on or
after such date.
This press release is not an offer for sale of the securities in the United States or in any
other jurisdiction where such offer is prohibited, and such securities may not be offered or sold
in the United States absent registration or an exemption from registration under the United States
Securities Act of 1933, as amended.
