Exhibit 29
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MEMC ELECTRONIC MATERIALS, INC.
(a Delaware corporation)
34,000,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: February 9, 2004
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Table of Contents
Page
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UNDERWRITING AGREEMENT.........................................................1
SECTION 1. Representations and Warranties...............................2
(a) Representations and Warranties by the Company................2
(i) Compliance with Registration Requirements...........3
(ii) Incorporated Documents..............................3
(iii) Independent Accountants.............................4
(iv) Financial Statements................................4
(v) No Material Adverse Change in Business..............4
(vi) Good Standing of the Company........................5
(vii) Good Standing of Subsidiaries.......................5
(viii) Capitalization......................................6
(ix) Authorization of Agreement..........................6
(x) Description of Securities...........................6
(xi) Absence of Defaults and Conflicts...................6
(xii) Absence of Labor Dispute............................7
(xiii) Absence of Proceedings..............................7
(xiv) Accuracy of Exhibits................................7
(xv) Possession of Intellectual Property.................7
(xvi) Absence of Further Requirements.....................8
(xvii) Possession of Licenses and Permits..................8
(xviii) Title to Property...................................8
(xix) Investment Company Act..............................9
(xx) Environmental Laws..................................9
(xxi) Statistical Data....................................9
(xxii) No Brokers' Fees...................................10
(xxiii) Registration Rights................................10
(xxiv) Related Party Transactions.........................10
(xxv) ERISA..............................................10
(xxvi) Tax Returns........................................10
(xxvii) Disclosure Controls and Procedures.................11
(xxviii) Evaluation of Disclosure Controls and
Procedures.........................................11
(xxix) Absence of Significant Changes in Internal
Controls...........................................11
(xxx) Listing............................................11
(b) Representations and Warranties by the Selling
Stockholder.................................................11
(i) Accurate Disclosure................................11
(ii) Authorization of Agreements........................12
(iii) Good and Valid Title...............................12
(iv) Absence of Manipulation............................12
(v) Absence of Further Requirements....................13
(c) Officer's Certificates......................................13
SECTION 2. Sale and Delivery to Underwriter; Closing...................13
(a) Initial Securities..........................................13
(b) Option Securities...........................................13
(c) Payment.....................................................14
(d) Denominations; Registration.................................14
SECTION 3. Covenants of the Company....................................14
(a) Compliance with Securities Regulations and Commission
Requests....................................................14
(b) Filing of Amendments........................................15
(c) Delivery of Registration Statements.........................15
(d) Delivery of Prospectuses....................................15
(e) Continued Compliance with Securities Laws...................16
(f) Blue Sky Qualifications.....................................16
(g) Rule 158....................................................16
(h) Restriction on Sale of Securities...........................16
(i) Reporting Requirements......................................17
SECTION 4. Payment of Expenses.........................................17
(a) Expenses....................................................17
(b) Termination of Agreement....................................18
SECTION 5. Conditions of Underwriter's Obligations.....................18
(a) Effectiveness of Registration Statement.....................18
(b) No Material Misstatement or Omission........................18
(c) Corporate Proceedings.......................................18
(d) Opinion of Counsel for Company..............................19
(e) Opinion of Senniger, Powers, Xxxxxxx & Xxxxxx...............19
(f) Opinion of Abe, Ikubo & Katayama............................19
(g) Opinion of Hwang Mok Park P.C...............................19
(h) Opinion of Studio Legale Tosato.............................19
(i) Opinion of Counsel for the Selling Stockholder..............19
(j) Opinion of Counsel for Underwriter..........................19
(k) Officers' Certificate.......................................20
(l) Certificate of Selling Stockholder..........................20
(m) Accountant's Comfort Letter.................................20
(n) [Intentionally Deleted......................................20
(o) No Objection................................................20
(p) Lock-up Agreements..........................................20
(q) Conditions to Purchase of Option Securities.................21
(r) No Material Adverse Change..................................22
(s) Additional Documents........................................22
(t) Termination of Agreement....................................23
SECTION 6. Indemnification.............................................23
(a) Indemnification of Underwriter..............................23
(b) Indemnification of Underwriter by the Selling
Stockholder.................................................24
(c) Indemnification of Company, Directors and Officers
and Selling Stockholder.....................................25
(d) Actions against Parties; Notification.......................25
(e) Information Furnished by Underwriter........................26
(f) Settlement without Consent if Failure to Reimburse..........26
(g) Other Agreements with Respect to Indemnification............26
SECTION 7. Contribution................................................26
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery....................................................28
SECTION 9. Termination of Agreement....................................28
(a) Termination; General........................................28
(b) Liabilities.................................................29
SECTION 10. [Intentionally Omitted].....................................29
SECTION 11. [Intentionally Omitted].....................................29
SECTION 12. Notices.....................................................29
SECTION 13. Counterparts................................................29
SECTION 14. Parties.....................................................29
SECTION 15. GOVERNING LAW AND TIME......................................30
SECTION 16. Effect of Headings..........................................30
SCHEDULES
Schedule 1 - The Underwriter...................................Sch 1-1
Schedule 2 - Securities to be Sold ............................Sch 2-1
Schedule 3 - Pricing Information...............................Sch 3-1
Schedule 4 - List of Subsidiaries..............................Sch 4-1
Schedule 5 - List of Persons subject to Lock-up................Sch 5-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel....................A-1
Exhibit B - Form of Opinion of Senniger, Powers, Xxxxxxx &
Xxxxxx..................................................B-1
Exhibit C - Form Opinion of Abe, Ikubo & Katayama...................C-1
Exhibit D - Form of Opinion of Hwang Mok Park P.C...................D-1
Exhibit E - Form of Opinion of Studio Legale Tosato.................E-1
Exhibit F - Form of Opinion of Counsel for the Selling
Stockholder.............................................F-1
Exhibit G - Form of Lock-up Letter..................................G-1
MEMC ELECTRONIC MATERIALS, INC.
(a Delaware corporation)
34,000,000 Shares of Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
----------------------
February 9, 2004
DEUTSCHE BANK SECURITIES INC.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
MEMC Electronic Materials, Inc., a Delaware corporation (the
"Company"), and TPG Wafer Holdings LLC, a Delaware limited liability company
(the "Selling Stockholder"), confirm their respective agreements with Deutsche
Bank Securities Inc. (the "Underwriter"), with respect to (i) the sale by the
Selling Stockholder and the purchase by the Underwriter, of the number of shares
of Common Stock, par value $.01 per share, of the Company ("Common Stock") set
forth in Schedules 1 and 2 hereto and (ii) the grant by the Selling Stockholder
to the Underwriter of the option described in Section 2(b) hereof to purchase
all or any part of 5,100,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 34,000,000 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriter and all or any part of
the 5,100,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities".
The Company and the Selling Stockholder understand that the Underwriter
proposes to make a public offering of the Securities as soon as the Underwriter
deems advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-109120) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"). The registration statement includes a base prospectus prepared in
accordance with Rule 415 under the 1933 Act relating to the Securities and the
offering thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement has been declared effective by the Commission. As
provided in Section 3(a), a prospectus supplement reflecting the terms of the
offered Securities, the terms of the offering thereof and the other matters set
forth herein will be prepared and filed pursuant to Rule 424 of the 1933 Act
Regulations. Such prospectus supplement, in the form first filed after the date
hereof pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement (as so amended, if applicable),
including the exhibits thereto, schedules thereto, if any, and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, is herein called the "Registration Statement." Any registration statement
filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to
as the "Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The base prospectus included in the Registration Statement relating to all
offerings of Securities under the Registration Statement, as supplemented by the
Prospectus Supplement relating to the offering of the Securities, in the form
first furnished to the Underwriter by the Company for use in connection with the
offering of the Securities, is herein called the "Prospectus", except that, if
such base prospectus is amended or supplemented on or prior to the date on which
the Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the base prospectus, as so amended or supplemented
and as supplemented by the Prospectus Supplement, in either case including all
documents incorporated by reference therein. Promptly after execution and
delivery of this Agreement, the Company will prepare a Prospectus Supplement
that complies with the 1933 Act and that sets forth the number of offered
Securities, the name of the Underwriter, the price at which the offered
Securities are to be purchased by the Underwriter from the Selling Stockholder,
the public offering price, any selling concession and reallowance, and such
other information as the Underwriter, the Company and the Selling Stockholder
deem appropriate in connection with the offering of the offered Securities. The
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant Rule 424 under the 1933 Act. For purposes of this
Agreement, all references to the Registration Statement, the Prospectus or the
Prospectus Supplement or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information which is incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with the Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement,
any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not as of such times contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), included or will
include as of such times an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by the Underwriter expressly for use in the
Registration Statement or Prospectus.
The prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the 1933 Act, complied when so filed
in all material respects with the 1933 Act Regulations and the
Prospectus delivered to the Underwriter for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they became effective or at the time they were
or hereafter are filed with the Commission, complied and will comply as
of such times in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations or the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations"),
as applicable, and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective, at the time the Prospectus was issued and at the Closing
Time (and if any Option Securities are purchased, at the Date of
Delivery), did not and will as of such times not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated Subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated Subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles as applied in the United
States ("GAAP") with respect to the Company's consolidated financial
statements and condensed financial information and generally accepted
accounting principles applied in the Republic of China with respect to
Taisil Electronic Materials Corporation's financial statements, in each
case applied on a consistent basis throughout the periods involved
except as otherwise disclosed in such financial statements. The
supporting schedules, if any, included in the Registration Statement
and Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The financial information set forth
under "Recent Developments" in the Prospectus Supplement and in
Appendix A attached to the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its Subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its Subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock. Neither the Company nor any of its Subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree which may reasonably be
expected to result in a Material Adverse Effect, otherwise than as set
forth or contemplated in the Prospectus; and, since such date, there
has not been any change in the capital stock or long-term debt of the
Company or any of its Subsidiaries otherwise than as set forth or
contemplated in the Prospectus and except for long-term debt of Taisil
Electronic Materials Corporation ("Taisil") assumed by the Company and
its subsidiaries as a result of the Company's acquisition of Taisil and
changes to capital stock as a result of the exercise of stock options
under employee benefit plans subsequent to December 31, 2003.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Significant Subsidiary" and, collectively, the
"Significant Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation or organization, has corporate or
organizational power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation or limited liability
company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed
in the Registration Statement (including the documents incorporated by
reference therein), all of the issued and outstanding capital stock of
each such Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, other than the capital
stock of Taisil and MEMC Kulim Electronic Materials, Sdn. Bhd., is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for the security interests in such capital stock granted
to certain lenders, noteholders and guarantors as described in the
Prospectus; none of the outstanding shares of capital stock of any
Significant Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Significant Subsidiary.
The only subsidiaries of the Company are the subsidiaries listed on
Schedule 4 hereto (each a "Subsidiary" and, collectively, the
"Subsidiaries").
(viii) Capitalization. The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Description of Securities. The Common Stock conforms to
all statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its Subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any Subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement and
the Prospectus and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
of the Company and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or, except as set forth or
contemplated in the Prospectus, Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any Subsidiary
for which the holder has not agreed to waive or forego such right.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any Subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any Subsidiary, which is required to be disclosed in the
Registration Statement or the Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any
Subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. The Company and its
Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, covenants not to xxx,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would reasonably be expected to render any
Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its Subsidiaries therein, and which infringement
or conflict or invalidity or inadequacy, singly or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any third party or any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the offering or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement, except
such as have been obtained by the Company, and except for applicable
state securities or blue sky laws and requirements of the National
Association of Securities Dealers, Inc.
(xvii) Possession of Licenses and Permits. The Company and its
Subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure to possess such Governmental Licenses, could not
reasonably be expected to have a Material Adverse Effect; the Company
and its Subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor
any of its Subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its Subsidiaries
have good and marketable title to all real property owned by the
Company and its Subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Registration Statement and
the Prospectus, (b) secure debt instruments and/or credit facilities
reflected in the financial statements included in the Registration
Statement or Prospectus, (c) are restricted deposits not exceeding
$5,100,000 in the aggregate securing letters of credit obtained by the
Company and its Subsidiaries in the ordinary course of business, (d)
secure obligations under debt instruments and/or credit facilities of
Taisil not exceeding $15 million in the aggregate or (e) do not, singly
or in the aggregate, have a Material Adverse Effect and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its Subsidiaries; except as otherwise disclosed
in the Registration Statement, all of the leases and subleases material
to the business of the Company and its Subsidiaries, considered as one
enterprise, and under which the Company or any of its Subsidiaries
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any Subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any Subsidiary under any of the leases
or subleases mentioned above, or affecting or questioning the rights of
the Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xix) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its Subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its Subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its Subsidiaries and (D) to the
knowledge of the Company, there are no events or circumstances that
might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company or any
of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxi) Statistical Data. The statistical and market-related
data included in the Prospectus and the Registration Statement are
based on or derived from sources which the Company believes to be
reliable and accurate.
(xxii) No Brokers' Fees. Except as described in the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or the Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(xxiii) Registration Rights. Except as described in the
Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the 1933 Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the 1933 Act. Except as disclosed
in the Prospectus and except with respect to the registration rights
exercised by the Selling Stockholder hereunder, all persons (A) to whom
the Company has granted such demand or piggyback registration rights
and (B) whose rights may be exercised in connection with the
registration and offering of the Securities have waived such
registration rights.
(xxiv) Related Party Transactions. No relationship, direct or
indirect, exists between or among the Company on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company on the other hand, which is required to be described in the
Prospectus which is not so described.
(xxv) ERISA. Except as would not reasonably be expected to
have a Material Adverse Effect, the Company and its Subsidiaries are in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company or any Subsidiary of the Company would have any
liability; neither the Company nor any of its Subsidiaries has incurred
nor does the Company or any of its Subsidiaries expect to incur
liability under (A) Title IV of ERISA with respect to the termination
of, or withdrawal from, any "pension plan" or (B) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and
each "pension plan" for which the Company or any Subsidiary of the
Company would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification.
(xxvi) Tax Returns. The Company has filed all federal, state
and local income and franchise tax returns required to be filed through
the date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company or any of its
Subsidiaries which has had (nor does the Company have any knowledge of
any tax deficiency which, if determined adversely to the Company or any
of its Subsidiaries, could reasonably be expected to have) a Material
Adverse Effect.
(xxvii) Disclosure Controls and Procedures. The Company has
established and maintains disclosure controls and procedures (as such
term is defined in Rule 13a-14 under the Exchange Act), which (A) are
designed to ensure that material information relating to the Company,
including its consolidated Subsidiaries, is made known to the Company's
principal executive officer and its principal financial officer by
others within those entities, particularly during the periods in which
the periodic reports required under the 1934 Act are being prepared;
(B) have been evaluated for effectiveness as of the end of the
Company's most recent fiscal year; and (C) are effective in all
material respects to perform the functions for which they were
established.
(xxviii) Evaluation of Disclosure Controls and Procedures.
Based on the evaluation of its disclosure controls and procedures, the
Company is not aware of (A) any significant deficiency in the design or
operation of internal controls which could adversely affect the
Company's ability to record, process, summarize and report financial
data or any material weaknesses in internal controls; or (B) any fraud,
whether or not material, that involves management or other employees
who have a significant role in the Company's internal controls.
(xxix) Absence of Significant Changes in Internal Controls.
Since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses.
(xxx) Listing. The Securities are listed on the New York Stock
Exchange.
(b) Representations and Warranties by the Selling Stockholder. The
Selling Stockholder represents and warrants to the Underwriter as of the date
hereof, as of the Closing Time, and, if the Selling Stockholder is selling
Option Securities on a Date of Delivery, as of each such Date of Delivery, and
agrees with the Underwriter, as follows:
(i) Accurate Disclosure. The Selling Stockholder has reviewed
the Prospectus, and to the knowledge of the Selling Stockholder,
neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued
and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), included or will include as of such times an
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing
by the Underwriter expressly for use in the Prospectus.
(ii) Authorization of Agreements. The Selling Stockholder has
the full right, limited liability company power and authority to enter
into this Agreement and to sell, transfer and deliver the Securities to
be sold by the Selling Stockholder hereunder. The execution and
delivery of this Agreement and the sale and delivery of the Securities
to be sold by the Selling Stockholder and the consummation of the
transactions contemplated herein and compliance by the Selling
Stockholder with its obligations hereunder have been duly authorized by
the Selling Stockholder and do not and will not, conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which any
of the property or assets of the Selling Stockholder is subject, nor
will such action result in any violation of the provisions of the
organizational documents of the Selling Stockholder, or any applicable
treaty, law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Selling Stockholder or any of its
properties.
(iii) Good and Valid Title. The Selling Stockholder has and
will at the Closing Time and, if any Option Securities are purchased,
on the Date of Delivery have good and valid title to the Securities to
be sold by the Selling Stockholder hereunder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement; and
upon delivery of such Securities and payment of the purchase price
therefor as herein contemplated, assuming the Underwriter has no notice
of any adverse claim (within the meaning of Section 8-105 of the
Uniform Commercial Code as in effect in the State of New York), the
Underwriter will receive good and valid title to the Securities
purchased by it from the Selling Stockholder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iv) Absence of Manipulation. The Selling Stockholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(v) Absence of Further Requirements. Except for the
registration of the Securities under the 1933 Act and such consents,
approvals, authorizations, registrations, filings or qualifications as
may be required under the 1934 Act and applicable state securities laws
in connection with the purchase and distribution of the Securities by
the Underwriter, no filing with, or consent, approval, authorization,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the performance by the Selling Stockholder of its
obligations hereunder or in connection with the sale and delivery of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its Subsidiaries delivered to the Underwriter or to
counsel for the Underwriter shall be deemed a representation and warranty by the
Company to the Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholder as such and
delivered to the Underwriter or to counsel for the Underwriter pursuant to the
terms of this Agreement shall be deemed a representation and warranty by the
Selling Stockholder to the Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Stockholder agrees to sell to the Underwriter and the
Underwriter agrees to purchase from the Selling Stockholder, at the price per
share set forth in Schedule 3, the number of Initial Securities set forth in
Schedule 2 opposite the name of the Selling Stockholder.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Stockholder hereby grants an option to the Underwriter to
purchase up to an additional 5,100,000 shares of Common Stock at the price per
share set forth in Schedule 3, less an amount per share equal to any dividends
or distributions declared by the Company and payable on the Initial Securities
but not payable on the Option Securities. The option hereby granted will expire
30 days after the date hereof and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Securities upon
written notice by the Underwriter to the Company and the Selling Stockholder
setting forth the number of Option Securities as to which the Underwriter is
then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Underwriter, but shall not be later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxx
& Xxxxxxx LLP, 000 X. Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, or at such
other place as shall be agreed upon by the Underwriter and the Company and the
Selling Stockholder, at 10:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof, or such other time not later than ten business days after
such date as shall be agreed upon by the Underwriter and the Company and the
Selling Stockholder (such time and date of payment and delivery being herein
called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriter, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Underwriter and
the Company and the Selling Stockholder, on each Date of Delivery as specified
in the notice from the Underwriter to the Company and the Selling Stockholder.
Payment shall be made to the Selling Stockholder by wire transfer of
immediately available funds to bank accounts designated by the Selling
Stockholder against delivery through the facilities of The Depository Trust
Company to the Underwriter for the account of the Underwriter of certificates
for the Securities to be purchased by it.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Underwriter may request in writing at least one
full business day before the Closing Time or two full business days before the
relevant Date of Delivery, as the case may be. The certificates for the Initial
Securities and the Option Securities, if any, will be made available for
examination and packaging by the Underwriter in The City of New York not later
than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with the
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rules 415
and 424 of the 1933 Act Regulations and will notify the Underwriter immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any prospectus, or
of the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period in which a Prospectus is
required by the 1933 Act to be delivered in connection with the sale of the
Securities (the "Prospectus Delivery Period"), the Company will give the
Underwriter notice of its intention to file or prepare any amendment to the
Registration Statement, or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Underwriter with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Underwriter or
counsel for the Underwriter shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriter and counsel for the Underwriter, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriter, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for the Underwriter. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will furnish to the
Underwriter, without charge, during the Prospectus Delivery Period, such number
of copies of the Prospectus (as amended or supplemented) as the Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time during
the Prospectus Delivery Period, any event shall occur or condition shall exist
as a result of which it is necessary, in the reasonable opinion of counsel for
the Underwriter or for the Company, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriter such number of copies of such amendment or supplement as the
Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use commercially
reasonable efforts, in cooperation with the Underwriter, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Underwriter may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectus, the Company will not, without the prior written
consent of the Underwriter, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus or (C)
any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
Prospectus.
(i) Reporting Requirements. The Company, during the Prospectus Delivery
Period, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Selling Stockholder will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), the Prospectus and any amendment or
supplement to the Prospectus or any document incorporated by reference therein,
all as provided in this Agreement, (iii) the preparation, printing and delivery
to the Underwriter of this Agreement, and such other documents as may be
required in connection with the offering, purchase, sale, or delivery of the
Securities, (iv) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriter, (v) the fees and disbursements of the
Company's counsel, the Selling Stockholder's counsel, accountants and other
advisors, (vi) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriter in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vii) the printing and delivery to the
Underwriter of copies of the Prospectus and any amendments or supplements
thereto, (viii) the preparation, printing and delivery to the Underwriter of
copies of the Blue Sky Survey and any supplement thereto, (ix) the fees and
expenses of any transfer agent or registrar for the Securities, (x) any stamp
duties, capital duties and stock transfer taxes, if any, payable upon the sale
of the Securities to the Underwriter, (xi) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriter in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities, if applicable, and (xii) the
fees and expenses incurred in connection with the listing of the Securities on
the New York Stock Exchange, if applicable.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5(u) or Section 9(a)(i)
hereof, the Selling Stockholder shall reimburse the Underwriter for all of their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter, incurred in connection with the
transactions contemplated by this Agreement.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company and the Selling Stockholder contained in Section 1
hereof or in certificates of any officer of the Company or any Subsidiary of the
Company or on behalf of the Selling Stockholder delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder and the performance by the Selling Stockholder of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriter. A Prospectus
Supplement containing information relating to the description of the Securities,
the specific method of distribution and similar matters shall have been filed
with the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable.
(b) No Material Misstatement or Omission. The Underwriter shall not
have discovered and disclosed to the Company on or prior to the Closing Time or
the relevant Date of Delivery, as the case may be, that the Registration
Statement or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact, which in the opinion of Xxxxxx & Xxxxxxx LLP,
counsel for the Underwriter, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) Corporate Proceedings. All corporate proceedings and other legal
matters incident to the authorization, form and validity of this Agreement, the
Securities, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to counsel for the
Underwriter, and the Company and the Selling Stockholder shall have furnished to
such counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
(d) Opinion of Counsel for Company. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of Xxxxx
Xxxx LLP, counsel for the Company, to the effect set forth in Exhibit A hereto.
(e) Opinion of Senniger, Powers, Xxxxxxx & Xxxxxx. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing Time,
of Senniger, Powers, Xxxxxxx & Xxxxxx, special counsel for the Company, in form
and substance satisfactory to counsel for the Underwriter, to the effect set
forth in Exhibit B hereto.
(f) Opinion of Abe, Ikubo & Katayama. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of Abe,
Ikubo & Katayama, special counsel for the Company, in form and substance
satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit
C hereto.
(g) Opinion of Hwang Mok Park P.C. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of Hwang
Mok Park P.C., special counsel for the Company, in form and substance
satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit
D hereto.
(h) Opinion of Studio Legale Tosato. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of Studio
Legale Tosato, special counsel for the Company, in form and substance
satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit
E hereto.
(i) Opinion of Counsel for the Selling Stockholder. At Closing Time,
the Underwriter shall have received the favorable opinion, dated as of Closing
Time, of Cleary, Gottlieb, Xxxxx and Xxxxxxxx, counsel for the Selling
Stockholder, to the effect set forth in Exhibit F hereto.
(j) Opinion of Counsel for Underwriter. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing Time,
of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriter, with respect to the
Registration Statement, the Prospectus and other related matters the
Underwriters may reasonably require. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Underwriter. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its Subsidiaries and
certificates of public officials.
(k) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriter shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(l) Certificate of Selling Stockholder. At Closing Time, the
Underwriter shall have received a certificate of an Attorney-in-Fact on behalf
of the Selling Stockholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of the Selling Stockholder contained in Section
1(b) hereof are true and correct in all material respects with the same force
and effect as though expressly made at and as of Closing Time and (ii) the
Selling Stockholder has complied in all material respects with all agreements to
be performed under this Agreement, including its obligations to fulfill its
conditions set forth in Section 5 hereof, at or prior to Closing Time.
(m) Accountant's Comfort Letter. The Underwriter shall have received
from KPMG LLP a letter dated as of the Closing Time, in form and substance
previously agreed to by the Underwriter, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(n) [Intentionally Deleted]
(o) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(p) Lock-up Agreements. At the date of this Agreement, the Underwriter
shall have received an agreement substantially in the form of Exhibit G hereto
signed by the persons listed on Schedule 5 hereto.
(q) Conditions to Purchase of Option Securities. In the event that the
Underwriter exercises its option provided in Section 2(b) hereof to purchase all
or any portion of the Option Securities, the representations and warranties of
the Company and the Selling Stockholder contained herein and the statements in
any certificates furnished by the Company or any Subsidiary of the Company and
the Selling Stockholder hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Underwriter shall have
received:
(i) Officers' Certificate. A certificate, dated such
Date of Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(k) hereof
remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Stockholder. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of the Selling
Stockholder confirming that the certificate delivered at Closing Time pursuant
to Section 5(l) remains true and correct as of such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
Xxxxx Xxxx LLP, counsel for the Company, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(d) hereof.
(iv) Opinion of Senniger, Powers, Xxxxxxx & Xxxxxx. The
favorable opinion of Senniger, Powers, Xxxxxxx & Xxxxxx, counsel for the
Company, in form and substance satisfactory to counsel for the Underwriter,
dated such Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(e) hereof.
(v) Opinion of Abe, Ikubo & Katayama. The favorable opinion
of Abe, Ikubo & Katayama, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriter, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(f) hereof.
(vi) Opinion of Hwang Mok Park P.C. The favorable opinion of
Hwang Mok Park P.C., counsel for the Company, in form and substance satisfactory
to counsel for the Underwriter, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(g) hereof.
(vii) Opinion of Studio Legale Tosato. The favorable opinion
of Studio Legale Tosato, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriter, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(h) hereof.
(viii) Opinion of Counsel for the Selling Stockholder. The
favorable opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the Selling
Stockholder, dated such Date of Delivery, relating to the Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(i) hereof.
(ix) Opinion of Counsel for Underwriter. The favorable opinion
of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriter, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by Section
5(j) hereof.
(x) Bring-down Comfort Letter. A letter from KPMG LLP, in form
and substance satisfactory to the Underwriter and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriter pursuant to Section 5(m) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(r) No Material Adverse Change. Neither the Company nor any of its
Subsidiaries shall have sustained since the date of the latest financial
statements included or incorporated by reference in the Prospectus (i) any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any change, or any development that could reasonably be expected
to result in a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its Subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is or would be, in the judgment of the Underwriter, so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at the relevant
Closing Time or the relevant Date of Delivery on the terms and in the manner
contemplated in the Prospectus.
(s) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriter shall have been furnished with such documents and
opinions as it may reasonably require for the purpose of enabling it to pass
upon the sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company and the Selling Stockholder in connection with the sale of the
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriter and counsel for the Underwriter.
(t) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the Underwriter to purchase the Option Securities, may be
terminated by the Underwriter by notice to the Company and the Selling
Stockholder at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to indemnify and
hold harmless the Underwriter, its directors, officers and employees and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage,
expense or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Securities), as
incurred, arising out of (A) any untrue statement or alleged untrue
statement of a material fact contained (x) in the Registration
Statement, Prospectus Supplement or the Prospectus (or any amendment
or supplement thereto), or (y) in any materials or information
provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Securities
("Marketing Materials"), (B) the omission or alleged omission in the
Registration Statement, Prospectus Supplement or the Prospectus (or
any amendment or supplement thereto), or in any Marketing Materials of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in the light of the circumstances
under which they were made, not misleading, or (C) any act or failure
to act or any alleged act or failure to act by the Underwriter in
connection with, or relating in any manner to, the Securities or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (A) or (B) above
(provided that the Company shall not be liable under this clause (C)
to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by the Underwriter through its gross
negligence or willful misconduct);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company and the Selling Stockholder;
and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
the Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any Prospectus Supplement or the Prospectus (or any amendment or
supplement thereto), which information consists solely of the information
specified in Section 6(e) hereof. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to the
Underwriter or any officer, employee or controlling person of the Underwriter.
(b) Indemnification of Underwriter by the Selling Stockholder. The
Selling Stockholder, solely with respect to itself, agrees to indemnify and hold
harmless the Underwriter, its directors, officers and employees and each person,
if any, who controls the Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage, expense or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Securities), as incurred, arising out
of (1) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, Prospectus Supplement or the Prospectus
(or in any amendment or supplement thereto), or (2) the omission or alleged
omission in the Registration Statement, Prospectus Supplement or the Prospectus
(or in any amendment or supplement thereto), of a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
the light of the circumstances under which they were made, in the case of
subparagraphs (1) and (2) of this Section 6(b) to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon or in conformity with written
information furnished to the Company or the Underwriter by the Selling
Stockholder directly or through the Selling Stockholder's representatives,
specifically for use in the preparation thereof; and shall reimburse the
Underwriter, its directors, officers and employees or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Selling Stockholder shall not be liable in any such
case to the extent that any such loss, liability, claim, damage or expense
arises out of, or is based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for
use in the Registration Statement, Prospectus Supplement or the Prospectus (or
in any amendment or supplement thereto), which information consists solely of
the information specified in Section 6(e) hereof. However, in no event shall the
Selling Stockholder be liable under the provisions of this Section 6 for any
amount in excess of the total proceeds received by the Selling Stockholder from
the sale of the Securities by the Selling Stockholder (after deducting
commissions, but before taxes and any other expenses) pursuant to this
Agreement. The foregoing indemnity agreement is in addition to any liability
which the Selling Stockholder may otherwise have to the Underwriter or any
officer, employee or controlling person of the Underwriter.
(c) Indemnification of Company, Directors and Officers and Selling
Stockholder. The Underwriter agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and the Selling Stockholder and
each person, if any, who controls the Selling Stockholder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsections (a) and (b) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), or any Prospectus
Supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or such Prospectus Supplement or the Prospectus (or any
amendment or supplement thereto), which information consists solely of the
information specified in Section 6(e) hereof. The foregoing indemnity agreement
is in addition to any liability which the Underwriter may otherwise have to the
Company or the Selling Stockholder or any officer, employee or controlling
person of the Company or the Selling Stockholder.
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Sections 6(a) and (b)
above, counsel to the indemnified parties shall be selected by the Underwriter,
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company or the Selling
Stockholder, as the case may be. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties (which consent will not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(e) Information Furnished by Underwriter. The Underwriter confirms and
the Company and the Selling Stockholder acknowledge that the statements with
respect to the public offering of the Securities by the Underwriter set forth on
the cover page of, the name of the Underwriter and its participation in the sale
of Securities under the caption "Underwriting" in, the paragraphs addressing the
underwriting discount, stabilization and short positions appearing under the
caption "Underwriting" in the Prospectus constitute the only information
concerning the Underwriter furnished in writing to the Company by or on behalf
of the Underwriter specifically for inclusion in the Registration Statement and
the Prospectus.
(f) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(g) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement between the Company and the Selling
Stockholder with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriter on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholder on the one hand and of the Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriter on the other hand in connection
with the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Stockholder and the total
underwriting discount received by the Underwriter, in each case as set forth on
the cover of the Prospectus, bear to the aggregate initial public offering price
of the Securities as set forth on such cover.
The relative fault of the Company and the Selling Stockholder on the
one hand and the Underwriter on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Stockholder or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
The Selling Stockholder shall not be required to contribute any amount
in excess of the total proceeds received by the Selling Stockholder from the
offering of the Securities by the Selling Stockholder (after deducting
commissions, but before taxes and other expenses).
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Selling Stockholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
the Selling Stockholder, as the case may be.
The provisions of this Section shall not affect any agreement between
the Company and the Selling Stockholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its Subsidiaries or the
Selling Stockholder submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriter or controlling person, or by or on behalf of the Company or the
Selling Stockholder, and shall survive delivery of the Securities to the
Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this Agreement,
by notice to the Company and the Selling Stockholder, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus (exclusive of any amendment or supplement thereto), any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or in the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, including, without
limitation, as a result of terrorist activities, in each case the effect of
which is such as to make it, in the judgment of the Underwriter, impracticable
or inadvisable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the
United States, or (iv) if a banking moratorium has been declared by either
Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. [Intentionally Omitted]
SECTION 11. [Intentionally Omitted]
SECTION 12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriter shall be
directed to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
XX 00000, attention of Xxxxx Xxxxxx with a copy to the General Counsel; notices
to the Company shall be directed to it at 000 Xxxxx Xxxxx (City of X'Xxxxxx),
Xx. Xxxxxx, Xxxxxxxx 00000, attention of Xxxxx X. Xxxxxxxx (Fax: (636)
000-0000); and notices to the Selling Stockholder shall be directed to TPG Wafer
Holdings LLC, c/o Texas Pacific Group, 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxx
Xxxxx, XX 00000 (Fax: (000) 000-0000), attention of Xxxxxxx X. Xxxxxxxxx.
SECTION 13. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 14. Parties. This Agreement shall each inure to the benefit of and be
binding upon the Underwriter, the Company and the Selling Stockholder and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, the Company and the Selling Stockholder and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriter, the Company and the Selling Stockholder and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 16. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement by
and among the Underwriter, the Selling Stockholder and the Company in accordance
with its terms.
Very truly yours,
MEMC ELECTRONIC MATERIALS, INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Senior Vice President and Chief
Financial Officer
TPG WAFER HOLDINGS LLC
By: TPG WAFER PARTNERS LLC,
its managing member
By /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
DEUTSCHE BANK SECURITIES INC.
By /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Authorized Signatory
By /s/ Xxxxx Xxxxxxx
-------------------------------------------
Authorized Signatory
SCHEDULE 1
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Deutsche Bank Securities Inc.................................... 34,000,000
SCHEDULE 2
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
--------------------- ---------------------
TPG Wafer Holdings LLC........ 34,000,000 5,100,000
Total.........................
--------
SCHEDULE 3
MEMC ELECTRONIC MATERIALS, INC.
34,000,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $9.70.
2. The purchase price per share for the Securities to be paid by the
Underwriter shall be $9.60, being an amount equal to the initial public offering
price set forth above less $0.10 per share; provided that the purchase price per
share for any Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities.
SCHEDULE 4
List of Subsidiaries
MEMC Electronic Materials (UK) Ltd.
MEMC Electronic Materials France Sarl
MEMC Electronic Materials Sales, Sdn. Bhd.
MEMC Electronic Materials, GmbH
MEMC Electronic Materials, S.p.A.
MEMC Electronic Materials, Sdn. Bhd.
MEMC Holding B.V.
MEMC Holdings Corporation
MEMC International, Inc.
MEMC Japan Ltd.
MEMC Korea Company
MEMC Kulim Electronic Materials, Sdn. Bhd.
MEMC Pasadena, Inc.
MEMC Southwest Inc.
PlasmaSil, LLC
SiBond, LLC
Taisil Electronic Materials Corporation
SCHEDULE 5
List of persons and entities
subject to lock-up
Xxxxxx Xxxxxx
Xxx Xxxxxx
Shaker Xxxxxxxxx
Xxxxx X. Xxxx
Xxxxxxx Xxxxxxxxxxx
Xxxxxx Xxxxxxx-Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx-Xxxx Xxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxx Xxxxxx
C. Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
TPG Wafer Holdings LLC
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
[Xxxxx Xxxx Opinion to be attached]
Exhibit B
FORM OF OPINION OF SENNIGER, POWERS, XXXXXXX & XXXXXX
TO BE DELIVERED PURSUANT TO SECTION 5(e)
[Senniger Powers Opinion to be attached]
Exhibit C
FORM OF OPINION OF ABE, IKUBO & KATAYAMA
TO BE DELIVERED PURSUANT TO SECTION 5(f)
MEMC Japan (a) has been duly incorporated and is validly existing as a limited
liability company (Kabushiki Kaisha) under the Commercial Code of Japan, (b) has
corporate or organizational power and authority to own, lease and operate its
properties and to conduct its business as presently conducted under the laws of
Japan and (c) is duly qualified as a foreign corporation or limited liability
company to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse Effect.
All of the issued and outstanding capital stock of MEMC Japan has been duly
authorized and validly issued and is fully paid and non-assessable. To our
knowledge, all of the issued and outstanding capital stock of MEMC Japan is
owned by the Company.
For purposes of this opinion, a "Material Adverse Effect" means a material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospectus of MEMC Japan.
Exhibit D
FORM OF OPINION OF HWANG MOK PARK P.C.
TO BE DELIVERED PURSUANT TO SECTION 5(g)
1. The Company is a joint stock corporation (chusik hoesa) duly
incorporated and validly existing in good standing under the laws of Korea;
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as presently conducted;
3. To the best of our knowledge after due inquiry, the Company is duly
qualified as a joint stock corporation (chusik hoesa) to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. For the purpose of this
opinion, a "Material Adverse Effect" means a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company; and
4. All of the issued and outstanding capital stock of the Company has
been duly authorized and validly issued and is fully paid and non-assessable. To
our knowledge, forty percent (40%) of the issued and outstanding capital stock
of the Company is owned by MEMC International, Inc. and another forty percent
(40%) of the issued and outstanding capital stock of the Company is owned by
MEMC Holding B.V.
Exhibit E
FORM OF OPINION OF STUDIO LEGALE TOSATO
TO BE DELIVERED PURSUANT TO SECTION 5(h)
MEMC Electronic Materials, S.p.A. (a) has been duly incorporated or formed and
is validly existing as a corporation or limited liability company in good
standing under the laws of Italy, (b) has corporate or organizational power and
authority to own, lease and operate its properties and to conduct its business
as presently conducted and (c) is duly qualified as a foreign corporation or
limited liability company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a Material
Adverse Effect. All of the issued and outstanding capital stock of MEMC
Electronic Materials, S.p.A. has been duly authorized and validly issued and is
fully paid and non-assessable. To our knowledge, (i) all of the issued and
outstanding capital stock of MEMC Electronic Materials, S.p.A. is owned by MEMC
Electronic Materials, Inc. and (ii) all of the issued and outstanding capital
stock of MEMC Holding B.V. is owned by MEMC Electronic Materials, S.p.A. The
issued and outstanding capital stock of MEMC Holding B.V. that is owned by MEMC
Electronic Materials, S.p.A. is, to our knowledge, owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance or other claim.
For purposes of this opinion, a "Material Adverse Effect" means a material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of MEMC Electronic Materials, S.p.A.
Exhibit F
FORM OF OPINION OF COUNSEL FOR THE SELLING STOCKHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(j)
[Xxxxxx, Xxxxxxxx Opinion to be attached]
Exhibit G
LOCK-UP LETTER AGREEMENT
DEUTSCHE BANK SECURITIES INC.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The undersigned understands that you propose to enter into an
Underwriting Agreement (the "Underwriting Agreement") providing for the purchase
by you (the "Underwriter") of shares (the "Shares") of Common Stock, par value
$.01 per share (the "Common Stock"), of MEMC Electronic Materials, Inc., a
Delaware corporation (the "Company"), and that the Underwriter proposes to
reoffer the Shares to the public (the "Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriter, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of the
Underwriter, the undersigned will not, directly or indirectly, (1) offer for
sale, sell, pledge, or otherwise dispose of (or enter into any transaction or
device that is designed to, or could reasonably be expected to, result in the
disposition by any person at any time in the future of) any shares of Common
Stock (including, without limitation, shares of Common Stock that may be deemed
to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and shares of Common Stock
that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Common Stock (other than the Shares) owned
by the undersigned on the date of execution of this Lock-Up Letter Agreement or
on the date of the completion of the Offering, or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise, for a period of 90 days after the date of the final Prospectus
relating to the Offering.
The foregoing sentence shall not apply to bona fide gifts, sales or
other dispositions of shares of any class of the Company's capital stock, in
each case that are made exclusively between and among the undersigned or members
of the undersigned's family, or affiliates of the undersigned, including its
partners (if a partnership) or members (if a limited liability company);
provided that it shall be a condition to any such transfer that (i) the
transferee/donee agrees to be bound by the terms of the lock-up letter agreement
(including, without limitation, the restrictions set forth in the preceding
sentence) to the same extent as if the transferee/donee were a party hereto,
(ii) no filing by any party (donor, donee, transferor or transferee) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), shall be
required or shall be voluntarily made in connection with such transfer or
distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or
13D-A or 13G-A) made after the expiration of the 90-day period referred to
above), (iii) each party (donor, donee, transferor or transferee) shall not be
required by law (including without limitation the disclosure requirements of the
Securities Act of 1933, as amended, and the Exchange Act) to make, and shall
agree to not voluntarily make, any public announcement of the transfer or
disposition, and (iv) the undersigned notifies the Underwriter at least two (2)
business days prior to the proposed transfer or disposition.
In furtherance of the foregoing, the Company and its Transfer Agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective before April 30, 2004, or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be
terminated prior to payment for and delivery of the Shares, we will be released
from our obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriter will
proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between
the Company and the Underwriter.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents reasonably
necessary in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
By:
------------------------------------
Name:
Title:
Dated: February , 2004
