] Shares SS&C TECHNOLOGIES HOLDINGS, INC. COMMON STOCK ($0.01 PAR VALUE PER SHARE) UNDERWRITING AGREEMENT
EXHIBIT 1.1
[ ] Shares
SS&C TECHNOLOGIES HOLDINGS, INC.
COMMON STOCK ($0.01 PAR VALUE PER SHARE)
[ ], 2010
[ ], 2010
X.X. Xxxxxx Securities Inc.
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Deutsche Bank Securities Inc.
As Representatives of the
Several Underwriters listed in
Schedule I hereto
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Deutsche Bank Securities Inc.
As Representatives of the
Several Underwriters listed in
Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Credit Suisse Securities (USA) LLC
00 Xxxxxxx Xxx.
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxxxx Xxx.
Xxx Xxxx, Xxx Xxxx 00000
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
SS&C Technologies Holdings, Inc., a Delaware corporation (the “Company”), proposes to
issue and sell to the several Underwriters named in Schedule II to this Agreement (the
“Underwriters”), for whom you are acting as Representatives, and certain stockholders of
the Company (the “Selling Stockholders”) named in Schedule I to this Agreement,
severally propose to sell to the several Underwriters, an aggregate
of
[ ] shares of the common
stock ($0.01 par value per share) of the Company (the “Firm
Shares”), of which
[ ] shares
are to be issued and sold by the Company and
[ ] shares are to be sold by the Selling Stockholders,
each Selling Stockholder selling the amount set forth opposite such Selling Stockholder’s name in
Schedule I hereto.
The
Company also proposes to sell to the several Underwriters not more than an additional [ ]
shares of the Company’s common stock ($0.01 par value per share) (the “Additional Shares”),
if and to the extent that you shall have determined to exercise, on behalf of the Underwriters, the
right to purchase such shares of the Company’s common stock granted to the Underwriters in
Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the “Shares.” The shares of common stock ($0.01 par value per share) of the
Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the “Common Stock.” The Company and the Selling Stockholders are
hereinafter sometimes collectively referred to as the “Sellers.”
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The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1 (File No. 333-164043), including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective, including the
information (if any) deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the “Securities Act”),
is hereinafter referred to as the “Registration Statement”; the prospectus in the form
first used to confirm sales of Shares (or in the form first made available to the Underwriters by
the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Prospectus.” If the Company has filed an abbreviated
registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under
the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to
the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in
Rule 405 under the Securities Act, “preliminary prospectus” means any preliminary
prospectus relating to the Shares included in the Registration Statement, “Time of Sale
Prospectus” means the preliminary prospectus together with the free writing prospectuses, if
any, and the term sheets communicated pursuant to Rule 134 under the Securities Act, if any, each
as identified in Schedule III hereto, and “broadly available road show” means a
“bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has
been made available without restriction to any person. As used herein, the terms “Registration
Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein.
1. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus
does not, and at the time of each sale of the Shares in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in
Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, (iv) each broadly available road show, if any, when considered together
with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (v) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
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statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing by any Underwriter
through you expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule III hereto, and electronic road shows, if any, each furnished to you
before first use, the Company has not prepared, used or referred to, and will not, without your
prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly organized, is validly existing as an entity
in good standing under the laws of the jurisdiction of its organization, has the power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital stock or equity interests of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable (to the extent
legally applicable) and, except as disclosed in the Time of Sale Prospectus and except for
directors’ qualifying shares, are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims.
(f) 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.
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(g) This Agreement has been duly authorized, executed and delivered by the Company.
(h) The authorized capital stock of the Company conforms as to legal matters in all material
respects to the description thereof contained in each of the Time of Sale Prospectus and the
Prospectus.
(i) The shares of Common Stock outstanding prior to the issuance of the Shares to be sold by
the Company have been duly authorized and are validly issued, fully paid and non assessable.
(j) The Shares to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and
non assessable, and the issuance of such Shares will not be subject to any preemptive or similar
rights.
(k) Neither the Company nor any of its subsidiaries is (i) in violation of its certificate of
incorporation or by-laws or similar organizational 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 (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 be materially adverse to the Company and
its subsidiaries, taken as a whole.
(l) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement, the issue and sale of the Shares being delivered by the Company
and the consummation of the transactions herein contemplated will not contravene (i) any provision
of applicable law, (ii) the certificate of incorporation or by-laws of the Company, (iii) any
agreement or other instrument binding upon the Company or any of its subsidiaries or (iv) any
judgment, order or decree of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, except in the case of clauses (iii) and (iv), for any such contravention
that would not affect the validity of the Shares or otherwise be materially adverse to the Company
and its subsidiaries, taken as a whole, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, except for the registration of the Shares under the
Securities Act, such consents, approvals, authorizations, orders or qualifications as may be
required by the Financial Industry Regulatory Authority, Inc. (“FINRA”) and by the
securities or Blue Sky laws of the various states in connection with the offer and sale of the
Shares.
(m) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business, management, financial position, stockholders equity or operations of the
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Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale
Prospectus.
(n) There are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and proceedings that
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or
on the power or ability of the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required
to be described in the Registration Statement or the Prospectus and are not so described; and there
are no statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(o) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(p) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
(q) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(r) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(s) Except as disclosed in the Time of Sale Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect
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to any securities of the Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(t) Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and its
subsidiaries, taken as a whole, have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction; (ii) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of
any kind on its capital stock other than ordinary and customary dividends; and (iii) there has not
been any material change in the capital stock, short-term debt or long-term debt of the Company and
its subsidiaries, taken as a whole, except in each case as disclosed in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(u) Neither the Company nor any of its subsidiaries owns any material real property. The
Company and its subsidiaries have good and valid title to all personal property owned by them which
is material to the business of the Company and its subsidiaries, taken as a whole, in each case
free and clear of all liens, encumbrances and defects except such as are disclosed in the Time of
Sale Prospectus or such as do not materially affect the value of such property and do not interfere
materially with the use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere materially with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries, in each case except as disclosed
in the Time of Sale Prospectus.
(v) Except as disclosed in the Time of Sale Prospectus, the Company and its subsidiaries own,
possess or have the right to use all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), trademarks, service marks, trade names and
other similar intellectual property rights currently employed by them in connection with the
business now operated by them, and, except as disclosed in the Time of Sale Prospectus, neither the
Company nor any of its subsidiaries has received any written or, to the knowledge of the Company’s
officers, oral notice of infringement of or conflict with rights of others with respect to any of
the foregoing that, singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a material adverse effect on the Company and its subsidiaries, taken as a
whole; except as disclosed in the Time of Sale Prospectus, the Company and its subsidiaries have
taken all reasonable steps necessary to secure from their employees and contractors assignment of
all rights of such persons in any intellectual property rights of the Company and its subsidiaries;
except as disclosed in the Time of Sale Prospectus, the Company has no knowledge of any
infringement or unauthorized use by any third party of any intellectual property rights of the
Company and its subsidiaries, except for any such infringement or unauthorized use that would not
have a material adverse effect on the Company and it subsidiaries, taken as a whole; except as
disclosed in the Time of Sale Prospectus, the Company is not aware of outstanding options, licenses
or agreements that grant to any third parties rights under any intellectual property rights of the
Company and its subsidiaries which are required to be set forth in the Time of Sale Prospectus; the
Company and its subsidiaries have taken reasonable measures to prevent the unauthorized
dissemination or publication of their
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confidential information and, to the extent contractually required to do so, the confidential
information of third parties in their possession.
(w) No material labor dispute with the employees of the Company or any of its subsidiaries
exists, except as disclosed in the Time of Sale Prospectus, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or contractors that would reasonably
be expected to have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(x) The Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as the Company reasonably believes
to be prudent and customary in the businesses in which they are engaged; neither the Company nor
any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither
the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a cost that would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole, except as disclosed
in the Time of Sale Prospectus.
(y) The Company and its subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, other than such certificates, authorizations and permits the failure
to so possess would not reasonably be expected to have a material adverse effect on the Company and
its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries has
received any written notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole, except as disclosed in the Time of Sale Prospectus.
(z) The Company and each of its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as disclosed in the Time of
Sale Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i)
no material weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (ii) no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.
(aa) Upon effectiveness of the Registration Statement, the Company will implement disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under the
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Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that have been
designed to ensure that material information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and principal financial officer by others within
those entities; the Company has no reason to believe that, upon the effectiveness of the
Registration Statement, such disclosure controls and procedures will not be effective and in
material compliance with the requirements of the Exchange Act.
(bb) Except as disclosed in the Registration Statement or the Time of Sale Prospectus, the
Company has not sold, issued or distributed any shares of Common Stock during the six-month period
preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S
of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified
stock option plans or other employee compensation plans or pursuant to outstanding options, rights
or warrants.
(cc) To the Company’s knowledge, PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, are independent public accountants as
required by the Securities Act and the rules and regulations of the Commission thereunder.
(dd) The consolidated financial statements and schedules of the Company, and the related notes
thereto, included in the Registration Statement and the Prospectus present fairly in all material
respects the financial position of the Company as of the respective dates of such financial
statements and schedules, and the results of operations and cash flows of the Company for the
respective periods covered thereby; such statements, schedules and related notes have been prepared
in accordance with generally accepted accounting principles in the United States applied on a
consistent basis as certified by the independent public accountants named in paragraph (aa) above;
except for the financial statements of Zoologic, Inc. and Financial Models Company Inc., whose
omission has not raised an objection from the staff of the Division of Corporation Finance of the
Commission, no other financial statements or schedules are required to be included in the
Registration Statement; the pro forma financial information and the related notes thereto included
in the Registration Statement, the Time of Sale Prospectus and the Prospectus have been prepared in
accordance with the applicable requirements of the Securities Act and the assumptions underlying
such pro forma financial information are reasonable and are set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus; and the selected financial data set
forth in the Prospectus under the captions “Summary Consolidated Financial Data” “Capitalization”
and “Selected Consolidated Financial Data” fairly present in all material respects the information
set forth therein on the basis stated in the Registration Statement.
(ee) 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 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 (the “Grant Date”) 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
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, (ii) each such grant was
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made in accordance with the terms of the Company Stock Plans and all other applicable laws and
regulatory rules or requirements, and (iii) each such grant was properly accounted for in
accordance with GAAP in the financial statements (including the related notes) of the Company.
(ff) The Company meets the standards of eligibility to register on Form S-1.
(gg) Other than SS&C Technologies, Inc., Open Information Systems, Inc., OMR Systems
Corporation, SS&C Technologies Canada Corp., SS&C Technologies Limited and SS&C Fund Administration
Services LLC, there are no subsidiaries of the Company that constitute “significant subsidiaries”
as defined in Rule 1-02 of Regulation S-X (it being acknowledged and agreed that the Company is
making no representation or warranty that the subsidiaries referred to in this paragraph (dd) are
“significant subsidiaries” as defined in Rule 1-02 of Regulation S-X).
(hh) The statistical and market-related data contained in the Time of Sale Prospectus are
based on or derived from sources which the Company reasonably and in good faith believes are
reliable and accurate, and such data agree with the sources from which they were derived.
(ii) 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 Time of Sale Prospectus and the Prospectus,
there is no tax deficiency that has been, or could reasonably be expected to be, asserted against
the Company or any of its subsidiaries or any of their respective properties or assets, except
where such failure to pay or file would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(jj) 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, which payment, receipt or retention of funds or other violation is of a character
required to be disclosed in the Time of Sale Prospectus and the Prospectus.
(kk) The operations of the Company and its subsidiaries are and have been conducted at all
times in compliance in all material respects 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 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.
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(ll) 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.
2. Representations and Warranties of the Selling Stockholders. Each Selling
Stockholder severally and not jointly represents and warrants to and agrees with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such
Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such
Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such
Selling Stockholder and the Company, as Custodian, relating to the deposit of the Shares to be sold
by such Selling Stockholder (the “Custody Agreement”) and the Power of Attorney appointing
certain individuals as such Selling Stockholder’s attorneys in fact to the extent set forth
therein, relating to the transactions contemplated hereby and by the Registration Statement (the
“Power of Attorney”) will not contravene (i) any provision of applicable law, (ii) the
certificate of incorporation or by laws of such Selling Stockholder (if such Selling Stockholder is
a corporation), (iii) any agreement or other instrument binding upon such Selling Stockholder or
(iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction
over such Selling Stockholder, except in the case of clauses (i), (iii) and (iv), for any such
contravention that would not reasonably be expected to impair in any material respect the
consummation of such Selling Stockholder’s obligations hereunder.
(c) On the Closing Date such Selling Stockholder will have valid title to, or a valid
“security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code
in respect of, the Shares to be sold by such Selling Stockholder free and clear of all security
interests, claims, liens, equities or other encumbrances and the legal right and power, and all
authorization and approval required by law, to enter into this Agreement, the Custody Agreement and
the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling
Stockholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and
delivered by such Selling Stockholder and are valid and binding agreements of such Selling
Stockholder.
(e) Delivery of the Shares to be sold by such Selling Stockholder and payment therefor
pursuant to this Agreement will pass valid title to such Shares, free and clear of any adverse
claim within the meaning of Section 8-102 of the New York Uniform Commercial Code, to each
Underwriter who has purchased such Shares without notice of an adverse claim.
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(f) Such Selling Stockholder is not prompted by any information concerning the Company or its
subsidiaries that is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to
this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares
in connection with the offering when the Prospectus is not yet available to prospective purchasers
and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and (iii) the Prospectus
does not contain and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided
that with respect to each Selling Stockholder, the representations and warranties set forth in this
paragraph 2(g) are limited to statements and omissions made in reliance upon information relating
to such Selling Stockholder furnished to the Company in writing in connection with the preparation
of the disclosure required by Items 7 and 11(m) of Form S-1 by such Selling Stockholder expressly
for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus or any
amendments or supplements thereto.
(h) Except for the free writing prospectuses, if any, identified in Schedule III
hereto, and electronic road shows, if any, each furnished to you before first use, such Selling
Stockholder, including such Selling Stockholder’s agents and representatives, has not prepared,
used or referred to, and will not, without your prior consent, prepare, use or refer to, any free
writing prospectus.
3. Agreements to Sell and Purchase. Each Seller, severally and not jointly, hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from such Seller at $[ ] a share (the
“Purchase Price”) the number of Firm Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the number of Firm Shares
to be sold by such Seller as the number of Firm Shares set forth in Schedule II hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to [ ]
Additional Shares at the Purchase Price. The Representatives may exercise this right on behalf of
the Underwriters in whole or from time to time in part by giving written notice to the Company not
later than 30 days after the date of this Agreement. Any exercise notice shall specify the number
of Additional Shares to be purchased by the Underwriters and the date on which such shares are to
be purchased. Each purchase date must be at least one business day after the written notice is
given and may not be earlier than the closing date for the Firm Shares
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nor later than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 5 hereof solely for the purpose of covering over
allotments made in connection with the offering of the Firm Shares. On each day, if any, that
Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter agrees,
severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments
to eliminate fractional shares as you may determine) that bears the same proportion to the total
number of Additional Shares to be purchased on such Option Closing Date as the number of Firm
Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of the Representatives on
behalf of the Underwriters, it will not, during the period ending 180 days after the date of the
Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise or (3) file any registration statement with the Commission relating to the offering of
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock.
The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof and disclosed in
the Time of Sale Prospectus or of which the Underwriters have been advised in writing, (c) the
issuance by the Company of shares or options to purchase shares of Common Stock pursuant to the
Company’s equity plans disclosed in the Prospectus, (d) the filing by the Company of any
Registration Statement on Form S-8 or a successor form thereto or (e) the issuance by the Company
of up to [ ] shares of Common Stock in connection with any acquisition, collaboration or other
strategic transaction involving the Company or any of its subsidiaries, provided that the
recipients thereof 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 restricted period, the restrictions imposed by this agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings release
or the occurrence of the material news or material event. The Company shall promptly notify the
Representatives of any earnings release, news or event that may give rise to an extension of the
initial 180-day restricted period.
4. Terms of Public Offering. The Sellers are advised by you that the Underwriters
propose to make a public offering of their respective portions of the Shares as soon after the
Registration Statement and this Agreement have become effective as in your judgment is advisable.
The Sellers are further advised by you that the Shares are to be offered to the public
- 12 -
initially at $[ ] a share (the “Public Offering Price”) and to certain
dealers selected by you at a price that represents a concession not in excess of $[ ] a
share under the Public Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $[ ] a share, to any Underwriter or to certain
other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by each Seller shall
be made to such Seller in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on [ ] [ ], 2010, or at such other time on the same or
such other date, not later than [ ] [ ], 2010, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as the “Closing
Date.”
Payment for any Additional Shares shall be made to the Company in Federal or other funds
immediately available in New York City against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 3 or at such other time on the
same or on such other date, in any event not later than [ ] [ ], 2010, as shall
be designated in writing by you.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly paid, against
payment of the Purchase Price therefor.
6. Conditions to the Underwriters’ Obligations. The obligations of the Sellers to
sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and
pay for the Shares on the Closing Date are subject to the condition that the Registration Statement
shall have become effective not later than 5:00 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
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(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth in
the Time of Sale Prospectus (excluding any amendments or supplements thereto) that, in your
judgment, is material and adverse and that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Time of Sale
Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section
6(a)(i) above and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and that the Company has
complied in all material respects with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing
and delivering such certificate may rely upon the best of his or her knowledge as to proceedings
threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx and Xxxx LLP, outside counsel for the Company, dated the Closing Date, in the form
attached hereto as Exhibit B.
(d) Xxxxxxx X.X. Xxxxxxx, Esq., general counsel to the Company, shall have furnished to you
his written opinion, dated as the Closing Date, in form and substance satisfactory to you, to the
effect that the issue and sale of the Shares being delivered by the Company and the compliance by
the Company with all of the provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material 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 by which any of the
property or assets of the Company or any of its subsidiaries is subject.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Selling Stockholders, dated the Closing Date, in the
form attached hereto as Exhibit C.
(f) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxx Procter
LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as the
Underwriters may reasonably request.
With respect to paragraphs (a), (b), (c) and (d) of the form of opinion attached hereto as
Exhibit B and with respect to Section 6 of the form of opinion attached hereto as
Exhibit C, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, may state that their opinions and
beliefs are based upon their participation in the preparation of the Registration Statement, the
Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or verification, except as
specified. With respect to the opinions in the third sentence of paragraph one and the third
- 14 -
sentence of paragraph two of the form of opinion attached hereto as Exhibit B, Xxxxxx
Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP may rely upon an opinion or opinions of counsel for such
subsidiaries; provided that (A) each such counsel for such subsidiaries is reasonably satisfactory
to your counsel and (B) a copy of each opinion so relied upon is delivered to you and is in form
and substance reasonably satisfactory to your counsel.
The opinions of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP described in Sections 6(c)
and 6(e) above (and any opinions of counsel for any Selling Stockholder referred to in the
immediately preceding paragraph) shall be rendered to the Underwriters at the request of the
Company or one or more of the Selling Stockholders, as the case may be, and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
reasonably satisfactory to the Underwriters, from PricewaterhouseCoopers LLP, independent public
accountants, containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the Time of Sale Prospectus and the
Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not
earlier than the date hereof.
(h) The “lock up” agreements, each substantially in the form of Exhibit A hereto,
between you and certain stockholders (including the Selling Stockholders), officers and directors
of the Company relating to sales and certain other dispositions of shares of Common Stock or
certain other securities, delivered to you on or before the date hereof, shall be in full force and
effect on the Closing Date.
(i) The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Shares.
7. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the Registration Statement (including
exhibits thereto) and for delivery to each other Underwriter that so requests a conformed copy of
the Registration Statement (without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date
of this Agreement and during the period mentioned in Sections 7(e) or 7(f) below,
as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which you
- 15 -
reasonably object, and to file with the Commission within the applicable period specified in
Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time
of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of
Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to
which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request; provided that in no event shall the
- 16 -
Company or any of its subsidiaries be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to service of process
in suits in any jurisdiction where it is not now subject or to subject itself to taxation in excess
of a nominal amount in respect of doing business in any jurisdiction.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement, including: (i) the
fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in
connection with the registration and delivery of the Shares under the Securities Act and all other
fees or expenses in connection with the preparation and filing of the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements
to any of the foregoing, including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the qualification of the
Shares for offer and sale under state securities laws as provided in Section 7(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of the offering of the Shares
by FINRA, (v) all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident
to listing the Shares on [ ], (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the
costs and expenses of the Company relating to investor presentations on any “road show” undertaken
in connection with the marketing of the offering of the Shares, including, without limitation,
expenses associated with the preparation or dissemination of any electronic road show, expenses
associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the Company and any
such consultants, and half of the cost of any aircraft chartered in connection with the road show,
(ix) the document production charges and expenses associated with printing this Agreement and (x)
all other costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section 8. It is understood,
however, that except as provided in this Section 8, Section 10 entitled “Indemnity
and Contribution” and the last paragraph of Section 12 below, the Underwriters will pay all
of their costs and expenses, including fees and disbursements of their
- 17 -
counsel, stock transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make and travel and lodging expenses of the
representatives of the Underwriters in connection with the road show. In addition, the
Underwriters will pay half of the cost of any aircraft chartered in connection with the road show.
The provisions of this Section 8 shall not supersede or otherwise affect any agreement
that the Sellers may otherwise have for the allocation of such expenses among themselves.
9. Covenants of the Underwriters. Each Underwriter severally covenants with the
Company not to take any action that would result in the Company being required to file with the
Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on
behalf of such Underwriter that otherwise would not be required to be filed by the Company
thereunder, but for the action of the Underwriter.
10. Indemnity and Contribution. (a) The Company agrees to indemnify and hold
harmless each Underwriter, its directors and officers, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment thereof, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined
in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any
amendment or supplement thereto, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(b) Each of the Selling Stockholders, severally and not jointly, agrees to indemnify and hold
harmless each Underwriter, its directors and officers, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment thereof, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined
in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any
amendment or supplement thereto, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration
- 18 -
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus, the Prospectus or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such Selling Stockholder expressly for use in
preparation of the disclosure required by Items 7 and 11(m) of Form S-1. The liability of each
Selling Stockholder under the indemnity agreement contained in this paragraph shall be limited to
an amount equal to (i) the number of Shares sold by such Selling Stockholder under this Agreement
multiplied by (ii) the Public Offering Price (minus the related underwriting discounts and
commissions).
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Selling Stockholders, the directors of the Company, the officers of the Company who
sign the Registration Statement and each person, if any, who controls the Company or any Selling
Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment thereof, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined
in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act, or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with reference to information
relating to any Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus or the Prospectus or any amendment or supplement
thereto, it being understood and agreed upon that the only such information furnished by any
Underwriter consists of the concession and reallowance figures appearing in the third paragraph
under the caption “Underwriting”.
(d) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 10(a),
10(b) or 10(c), such person (the “indemnified party”) shall promptly notify
the person against whom such indemnity may be sought (the “indemnifying party”) in writing;
provided that (1) the failure to notify the indemnifying party shall not relieve it from any
liability it may have under such Sections except to the extent it has been materially prejudiced
through the forfeiture of substantive rights or defenses by such failure and (2) the failure to
notify the indemnifying party shall not relieve it from any liability it may have to an indemnified
party otherwise than under this Section 10. The indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any
- 19 -
impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any,
who control any Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule
405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within the meaning of
either such Section and (iii) the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and that all such reasonably incurred fees
and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for
the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be
designated in writing by X.X. Xxxxxx Securities Inc. In the case of any such separate firm for
the Company, and such directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for the Selling
Stockholders and such control persons of any Selling Stockholders, such firm shall be designated in
writing by the persons named as attorneys in fact for the Selling Stockholders under the Powers of
Attorney. The indemnifying party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by the first and
second sentences of this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(e) To the extent the indemnification provided for in Section 10(a), 10(b) or
10(c) is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party or parties on the other
hand from the offering of the Shares or (ii) if the allocation provided by clause 10(e)(i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits
- 20 -
referred to in clause 10(e)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits received by the Sellers
on the one hand and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net proceeds from the
offering of the Shares (before deducting expenses) received by each Seller and the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Sellers on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Sellers or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Underwriters’ respective obligations to contribute pursuant to this Section 10 are
several in proportion to the respective number of Shares they have purchased hereunder, and not
joint. The liability of each Selling Stockholder under the contribution agreement contained in
this paragraph is several in proportion to the respective number of Shares such Selling Stockholder
has sold hereunder and shall be limited to an amount equal to (i) the number of Shares sold by such
Selling Stockholder under this Agreement multiplied by (ii) the Public Offering Price (minus the
related underwriting discounts and commissions).
(f) The Sellers and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation (even if
the Sellers 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 Section
10(e). The amount paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 10(e) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 10 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 10 and the
representations, warranties and other statements of the Company and the Selling Stockholders
contained in this Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter,
any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Stockholder
or any person controlling any Selling Stockholder, or the Company, its
- 21 -
officers or directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
11. Termination. The Underwriters may terminate this Agreement by notice given by you
to the Company, if after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on, or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or
in any over the counter market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium on commercial
banking activities shall have been declared by Federal or New York State authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in financial markets
or any calamity or crisis that, in your judgment, is material and adverse and which, singly or
together with any other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms
and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
12. Effectiveness; Defaulting Underwriters. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the
names of all such non defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 12
by an amount in excess of one ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to you, the Company and the Selling Stockholders for the purchase of
such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non defaulting Underwriter, the Company or the Selling
Stockholders. In any such case either you or the relevant Sellers shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any
other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be
- 22 -
purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option
to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such
Option Closing Date or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence of such default.
Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of any Seller to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any Seller shall be unable to perform its
obligations under this Agreement, the Sellers will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out of pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
13. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other, with respect to the
preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct
of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
14. Applicable Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
16. Notices. All communications hereunder shall be in writing and effective only upon
receipt and if to the Underwriters shall be delivered, mailed or sent to you in care of each of the
Representatives: X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Credit
Suisse Securities (USA) LLC, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Deutsche Bank Securities Inc., 00 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, in each case, Attention: Equity Syndicate Desk, with a
copy to Xxxxxxx Procter LLP, Exchange Place, Boston, Massachusetts 02109, Attention: Xxxx X.
Xxxxxxxxxxx; and if to the Company shall be delivered, mailed or sent to SS&C Technologies
Holdings, Inc., 00 Xxxxxxxxx Xxxx, Xxxxxxx,
- 00 -
Xxxxxxxxxxx 00000, Attention: Chief Executive Officer, with a copy to the General Counsel and
a copy to Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxx.
17. Counterparts. This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
[Remainder of page intentionally left blank]
- 24 -
| Very truly yours, SS&C Technologies Holdings, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
The Selling Stockholders named in Schedule I hereto,
acting severally
acting severally
By: |
||||||||||
Accepted as of the date hereof |
||||||||||
| X.X. Xxxxxx Securities Inc. Credit Suisse Securities (USA) LLC Xxxxxx Xxxxxxx & Co. Incorporated Deutsche Bank Securities Inc. Acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto |
||||||||||
| By: X.X. Xxxxxx Securities Inc. | By: Credit Suisse Securities (USA) LLC | |||||||||
By:
|
By: | |||||||||
| Title: | Title: | |||||||||
| By: Xxxxxx Xxxxxxx & Co. Incorporated | By: Deutsche Bank Securities Inc. | |||||||||
By:
|
By: | |||||||||
| Title: | Title: | |||||||||
[Signature Page to Underwriting Agreement]
SCHEDULE I
Selling Stockholders
| Number of | ||||
| Firm Shares | ||||
| Selling Stockholder | To Be Sold | |||
[ ] |
[ ] | |||
Total: |
[ ] | |||
I-1
SCHEDULE II
Underwriters
| Number of | Number of | |||||||
| Firm Shares | Additional Shares | |||||||
| Underwriter | To Be Purchased | To Be Purchased | ||||||
X.X. Xxxxxx Securities Inc. |
[ ] | [ ] | ||||||
Credit Suisse Securities (USA) LLC |
[ ] | [ ] | ||||||
Xxxxxx Xxxxxxx & Co. Incorporated |
[ ] | [ ] | ||||||
Deutsche Bank Securities Inc. |
[ ] | [ ] | ||||||
Total: |
[ ] | [ ] | ||||||
II-1
SCHEDULE III
Time of Sale Prospectus
| 1. | Preliminary Prospectus issued [date] | |
| 2. | [any/all free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act] | |
| 3. | [free writing prospectus containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a final term sheet] | |
| 4. | [orally communicated pricing information to be included if final term sheet is not used] |
C-1
