DEALERTRACK HOLDINGS, INC. 4,500,000 Shares of Common Stock, Par Value $0.01 Per Share Underwriting Agreement
Exhibit 1.1
4,500,000 Shares of Common Stock, Par Value $0.01 Per Share
October 18, 2007
Xxxxxx Brothers Inc.
As Representative of the
several Underwriters listed
in Schedule I hereto
several Underwriters listed
in Schedule I hereto
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
DealerTrack Holdings, Inc., a Delaware corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule I hereto (the “Underwriters”), for whom you are
acting as representative (the “Representative”), an aggregate of 2,000,000 shares of common stock,
par value $0.01 per share (the “Common Stock”), of the Company, and Credit Management Solutions,
Inc., a wholly owned subsidiary of First Advantage Corporation, a Delaware corporation (the
“Selling Stockholder”) proposes to sell to the Underwriters an aggregate of 2,500,000 shares of the
Common Stock. In addition, the Company and the Selling Stockholder propose to grant to the
Underwriters options to purchase up to an aggregate of 675,000 additional shares of the Common
Stock on the terms set forth in Section 2. The aggregate of 4,500,000 shares of the Common Stock to
be sold by the Company and the Selling Stockholder is herein called the “Underwritten Shares” and
the aggregate of 675,000 additional shares of the Common Stock to be sold by the Company and the
Selling Stockholder at the Underwriters’ option is herein called the “Option Shares”. The
Underwritten Shares and the Option Shares are herein referred to as the “Shares”.
The Company and the Selling Stockholder hereby confirm their agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement on Form S-3 (File No. 333-146729), including a prospectus, relating to the Shares. Such
registration statement, as amended at the time it becomes effective, including the information, if
any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be
part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement”.
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The term “Preliminary Prospectus” means the prospectus that is included in the Registration
Statement (and any amendments thereto) as of the date hereof and the term “most recent Preliminary
Prospectus” means the latest Preliminary Prospectus included in the Registration Statement on or
prior to the date hereof. The term “Prospectus” means the final prospectus, relating to the
Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act
on or before the second business day after the date hereof (or such earlier time as may be required
under the Securities Act) in the form furnished by the Company to you in connection with the
offering of the Shares. If the Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference
herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration
Statement.
Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case
may be and any reference to “amend”, “amendment” or “supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are
deemed to be incorporated by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to 5:30 p.m. (New York City time) on the date of this Agreement (the “Applicable
Time”), the Company prepared the following information: the most recent Preliminary Prospectus and
“free writing prospectuses” (as defined in Rule 405 under the Securities Act and including, without
limitation, any “road show” that is a free writing prospectus pursuant to Rule 433) prepared by or
on behalf of the Company or used or referred to by the Company in connection with the offering of
the Shares (“Issuer Free Writing Prospectus”), including any Issuer Free Writing Prospectuses that
were filed by the Company with the Commission on or before the Applicable Time (“Filed Issuer Free
Writing Prospectuses”) as set out on Annex G. In addition, you have informed us that the
Underwriters have or will orally provide the pricing information set out on Annex F to prospective
purchasers prior to confirming sales (the “Oral Pricing Information” and, collectively with the
most recent Preliminary Prospectus and each Filed Issuer Free Writing Prospectus, the “Pricing
Disclosure Package”). If, subsequent to the date of this Agreement, the Company and the
Underwriters have determined that such Pricing Disclosure Package included an untrue statement of a
material fact or omitted a statement of material fact necessary to make the information therein, in
the light of the circumstances under which it was made, not misleading and have agreed to provide
an opportunity to purchasers of the Shares to terminate their old purchase contracts and enter into
new purchase contracts, then “Pricing Disclosure Package” will refer to the information available
to purchasers at the time of entry into the first such new purchase contract.
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2. Purchase of the Shares by the Underwriters. (a) The Company and the Selling
Stockholder agree, severally and not jointly, to sell an aggregate of 2,000,000 Underwritten Shares
and 2,500,000 Underwritten Shares, respectively, to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set
forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to
purchase from the Company and the Selling Stockholder at a purchase price per share of $44.544 (the
“Purchase Price”) the number of Underwritten Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of Underwritten Shares to be sold
by the Company and the Selling Stockholder by a fraction, the numerator of which is the aggregate
number of Underwritten Shares to be purchased by such Underwriter as set forth opposite the name
of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of
Underwritten Shares to be purchased by all the Underwriters from the Company and the Selling
Stockholder hereunder.
In addition, the Company and the Selling Stockholder, agree, severally and not jointly, to
sell up to an aggregate of 300,000 Option Shares and 375,000 Option Shares, respectively, to the
several Underwriters in accordance with the terms of this Agreement and such Underwriters shall
have the option to purchase at their election up to a maximum of 675,000 Option Shares, at the
Purchase Price, in the event that the Underwriters sell more shares of Common Stock than the number
of Underwritten Shares. The Underwriters, on the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, shall have the option to purchase,
severally and not jointly, from the Company and the Selling Stockholder, at the Purchase Price,
that portion of the number of Option Shares as to which such election shall have been exercised
(subject to such adjustments to eliminate fractional shares as the Representative may determine)
determined by multiplying such number of Option Shares by a fraction the numerator of which is the
maximum number of Option Shares which such Underwriter is entitled to purchase and the denominator
of which is the maximum number of Option Shares which all of the Underwriters are entitled to
purchase hereunder. Any such election to purchase Option Shares shall be made such that half of the
Option Shares are purchased from the Company and half are purchased from the Selling Stockholder.
The Underwriters may exercise the option to purchase the Option Shares at any time and from
time to time on or before the thirtieth day following the date of this Agreement, by written notice
from the Representative to the Company and the Selling Stockholder. Such notice shall set forth
the aggregate number of Option Shares as to which the option is being exercised and the date and
time when the Option Shares are to be delivered and paid for, which may be the same date and time
as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date nor
later than the tenth full business day (as hereinafter defined) after the date of such notice
(unless such time and date are postponed in accordance with the provisions of Section 12 hereof).
Any such notice shall be given at least three business days prior to the date and time of delivery
specified therein, unless otherwise agreed by the parties hereto.
(b) The Company and the Selling Stockholder understand that the Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment
of the Representative is advisable, and initially to offer the Shares on the terms set forth in the
most recent Preliminary Prospectus and the Prospectus. The Company and the Selling
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Stockholder acknowledge and agree that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell Shares purchased by it
to or through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representative with regard to payment to the Company
and by the Selling Stockholder to the Representative with regard to payment to the Selling
Stockholder, in the case of the Underwritten Shares at 10:00 A.M. New York City time on October 24,
2007, or at such other time or place on the same or such other date, not later than the third
business day thereafter, as the Representative, the Company and the Selling Stockholder may agree
upon in writing or, in the case of the Option Shares, on the date and at the time and place
specified by the Representative in the written notice of the Underwriters’ election to purchase
such Option Shares. The time and date of such payment for the Underwritten Shares are referred to
herein as the “Closing Date” and any time and date for such payment for the Option Shares, if other
than the Closing Date, are herein referred to as an “Additional Closing Date”, each such closing to
occur at the offices of Xxxxx Xxxx & Xxxxxxxx or such other place as the Underwriter, the Company
and the Selling Stockholder may agree upon in writing.
Payment for the Shares to be purchased on the Closing Date or an Additional Closing Date, as
the case may be, shall be made by Federal Funds wire transfer against delivery through the
facilities of The Depositary Trust Company to the Representative for the respective accounts of the
several Underwriters of the Shares to be purchased on such date, with any transfer taxes payable in
connection with the sale of the Shares duly paid by the Company or the Selling Stockholder, as the
case may be. Book entry transfers of the Shares shall be made to the Representative in such names
and in such denominations as the Representative shall specify.
(d) Each of the Company and the Selling Stockholder acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the
Company and the Selling Stockholder with respect to the offering of Shares contemplated hereby
(including in connection with determining the terms of the offering) and not as a financial advisor
or a fiduciary to, or an agent of, the Company, the Selling Stockholder or any other person.
Additionally, neither the Representative nor any other Underwriter is advising the Company, the
Selling Stockholder or any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Company and the Selling Stockholder shall consult with their own
advisors concerning such matters and shall be responsible for making their own independent
investigation and appraisal of the transactions contemplated hereby and, unless and to the extent
otherwise expressly set forth herein, the Underwriters shall have no responsibility or liability to
the Company or the Selling Stockholder with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters relating to such transactions will
be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company
or the Selling Stockholder.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
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(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and the most recent Preliminary Prospectus, at the
time of filing thereof, complied in all material respects with the Securities Act and did not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter or to the Selling Stockholder furnished
to the Company in writing by such Underwriter through the Representative or the Selling Stockholder
as the case may be, expressly for use in the most recent Preliminary Prospectus.
(b) Pricing Disclosure Package. The Pricing Disclosure Package, at the Applicable Time did
not, and as of the Closing Date and as of any Additional Closing Date, as the case may be, will
not, contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in the Pricing Disclosure Package.
(c) Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus (including, without
limitation, any “road show” that is a free writing prospectus pursuant to Rule 433 under the
Securities Act), when considered together with the Pricing Disclosure Package at the Applicable
Time, did not and as of the Closing Date and as of any Additional Closing Date, as the case may be,
will not contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading. Each Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Securities Act on the date of first use, and the
Company has complied with all prospectus delivery and any filing requirements applicable to each
Issuer Free Writing Prospectus pursuant to the Securities Act. The Company has not made any offer
relating to the Shares that would constitute an Issuer Free Writing Prospectus without the prior
written consent of the Representative. The Company has retained in accordance with the Securities
Act all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the
Securities Act.
(d) Ineligible Issuer Status. The Company was not at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act)
of the Shares, is not on the date hereof and will not be on the Closing Date or any Additional
Closing Date an “ineligible issuer” (as defined in Rule 405 under the Securities Act) and the
Company was or is, as the case may be, at each such time, a “well-known seasoned issuer” (as
defined in Rule 405 under the Securities Act).
(e) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has
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been filed with the Commission not earlier than three years prior to the date hereof; and no notice
of objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been initiated or, to the knowledge of the
Company, threatened by the Commission; as of the applicable effective date of the Registration
Statement and any amendment thereto, the Registration Statement complied and will comply in all
material respects with the Securities Act, and did not and will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and as of the applicable date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date and as of any
Additional Closing Date, as the case may be, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and the Prospectus and any amendment or supplement
thereto.
(f) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus and the Pricing Disclosure Package, when they were filed with the
Commission, conformed in all material respects to the requirements of the Exchange Act and none of
such documents contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure
Package, when such documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(g) Financial Statements. The financial statements and the related notes thereto included or
incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and
the Prospectus comply in all respects with the applicable requirements of the Securities Act and
present fairly the financial position of the Company and its subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash flows for the periods specified;
such financial statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods covered thereby, and the supporting
schedules included or incorporated by reference in the Registration Statement present fairly the
information required to be stated therein; the other financial information included or incorporated
by reference in each of the Registration Statement, the Pricing Disclosure Package and the
Prospectus has been derived from the accounting records of the Company and its subsidiaries and
presents fairly the information shown thereby; and the pro
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forma financial information and the related notes thereto included or incorporated by reference in
each of the Registration Statement, the Pricing Disclosure Package and the Prospectus have been
prepared in accordance with the applicable requirements of the Securities Act, and the assumptions
underlying such pro forma financial information are reasonable and are set forth in each of the
Registration Statement, the Pricing Disclosure Package and the Prospectus, in each case, in all
material respects.
(h) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included or incorporated by reference in each of the Registration Statement, the Pricing
Disclosure Package and the Prospectus, (i) there has not been any material change in the capital
stock or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution
of any kind declared, set aside for payment, paid or made by the Company on any class of capital
stock, or any material adverse change, or any development involving a prospective material adverse
change, in or affecting the business, properties, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries taken as a whole; (ii) neither
the Company nor any of its subsidiaries has entered into any transaction or agreement that is
material to the Company and its subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a
whole; and (iii) neither the Company nor any of its subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or any action, order or decree of
any court or arbitrator or governmental or regulatory authority, except with respect to each of the
foregoing clauses, as disclosed in each of the Registration Statement, the Pricing Disclosure
Package and the Prospectus.
(i) Organization and Good Standing. The Company and each of its significant subsidiaries have
been duly organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct the businesses in
which they are engaged, except where the failure to be so qualified or have such power or authority
would not, individually or in the aggregate, have a material adverse effect, or a prospective
material adverse effect, on the business, properties, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”). The Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Registration
Statement.
(j) Capitalization. All the outstanding shares of capital stock of the Company (including the
Shares to be sold by the Selling Stockholder) have been duly and validly authorized and issued and
are fully paid and non-assessable and are not subject to any pre-emptive or similar rights; except
as described in or expressly contemplated by each of the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no outstanding rights (including, without
limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind
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relating to the issuance of any capital stock of the Company or any such subsidiary, any such
convertible or exchangeable securities or any such rights, warrants or options; the capital stock
of the Company conforms in all material respects to the description thereof contained in each of
the Registration Statement, the Pricing Disclosure Package and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the
case of any foreign subsidiary, for directors’ qualifying shares) and are owned directly or
indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party (collectively, “Liens”),
except for Liens (i) pursuant to or contemplated by that certain Credit Agreement dated as of April
15, 2005 among DealerTrack, Inc., the Company, the lenders party thereto and JPMorgan Chase Bank,
N.A., as Administrative Agent and LC Issuing Bank (the “Credit Agreement”) or (ii) the foreclosure
of which would not have a Material Adverse Effect.
(k) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all action required to be taken for
the due and proper authorization, execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby has been duly and validly taken.
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(m) The Shares. The Shares to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid for as provided herein, will be
duly and validly issued and will be fully paid and nonassessable and will conform to the
descriptions thereof in each of the Registration Statement, the Pricing Disclosure Package and the
Prospectus; and the issuance of the Shares is not subject to any preemptive or similar rights.
(n) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its significant subsidiaries is a party or by which the Company or any of its significant
subsidiaries is bound or to which any of the property or assets of the Company or any of its
significant subsidiaries is subject; or (iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or violation that would
not, individually or in the aggregate, have a Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the Company of this Agreement
and the issuance and sale of the Shares to be sold by the Company hereunder will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its significant subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company
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or any of its significant subsidiaries is a party or by which the Company or any of its significant
subsidiaries is bound or to which any of the property or assets of the Company or any of its
significant subsidiaries is subject, (ii) result in any violation of the provisions of the charter
or by-laws or similar organizational documents of the Company or any of its significant
subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority applicable to the
Company or any of its significant subsidiaries, except, in the case of clauses (i) and (iii) above,
for any such conflicts, breaches, violations, defaults, liens, charges or encumbrances as would
not, individually or in the aggregate, materially and adversely affect the ability of the Company
to perform its obligations under this Agreement.
(p) No Consents Required. No consent, approval, authorization, order, registration or
qualification (collectively, “Consents”) of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and performance by the Company of this
Agreement and the issuance and sale of the Shares to be sold by the Company hereunder, except for
(i) the registration of the Shares under the Securities Act, (ii) such Consents as may be required
under applicable state securities laws in connection with the purchase and distribution of the
Shares by the Underwriters, and (iii) such Consents as would not, individually or in the aggregate,
materially and adversely affect the ability of the Company to perform its obligations under this
Agreement.
(q) Legal Proceedings. Except as described in each of the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or any of its
significant subsidiaries is or may be a party or to which any property of the Company or any of its
significant subsidiaries is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its significant subsidiaries, could reasonably be
expected to have a Material Adverse Effect or materially and adversely affect the ability of the
Company to perform its obligations under this Agreement; to the best knowledge of the Company, no
such investigations, actions, suits or proceedings are threatened or contemplated by any
governmental or regulatory authority or threatened by others; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that
are required under the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are
not so filed as exhibits to the Registration Statement or described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(r) Independent Accountants. PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public accountants with respect to
the Company and its subsidiaries as required by the Securities Act.
(s) Title to Real and Personal Property. The Company and its significant subsidiaries have
good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all
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items of real and personal property that are material to the respective businesses of the Company
and its significant subsidiaries, in each case free and clear of all liens (other than liens
pursuant to or contemplated by the Credit Agreement), encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its significant subsidiaries or (ii) could
not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(t) Title to Intellectual Property. The Company and its significant subsidiaries own or
possess adequate rights to use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct of their respective
businesses as presently conducted; and the conduct of their respective businesses as presently
conducted will not conflict in any material respect with any such rights of others, and the Company
and its subsidiaries have not received any notice of any claim of infringement or conflict with any
such rights of others except for such notices that could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect, in each case, except as disclosed in each
of the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(u) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in the Registration Statement, the Pricing
Disclosure Package or the Prospectus and that is not so described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(v) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, will not be required to register as
an “investment company” or an entity “controlled” by an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Investment Company Act”).
(w) Public Utility Holding Company Act. Neither the Company nor any of its subsidiaries is a
“holding company” or a “subsidiary company” of a holding company or an “affiliate” thereof within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
(x) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof; and except as
disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus,
there is no tax deficiency that has been, or could reasonably be expected to be, asserted against
the Company or any of its subsidiaries or any of their respective properties or assets, in each
case, except as would not have a Material Adverse Effect.
11
(y) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material Adverse Effect; and except as
described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus
or would not have a Material Adverse Effect, neither the Company nor any of its subsidiaries has
received notice of any revocation or modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license, certificate, permit or
authorization will not be renewed in the ordinary course.
(z) No Labor Disputes. No material labor disturbance by or dispute with employees of the
Company or any of its subsidiaries exists or, to the best knowledge of the Company, is contemplated
or threatened.
(aa) Compliance With Environmental Laws. The Company and its subsidiaries (i) are in
compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
decisions and orders relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental
Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses; and
(iii) have not received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, except in any such case for any such failure to comply, or failure to receive
required permits, licenses or approvals, or liability as would not, individually or in the
aggregate, have a Material Adverse Effect.
(bb) Compliance With ERISA. Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained,
administered or contributed to by the Company or any of its affiliates for employees or former
employees of the Company and its affiliates has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred
with respect to any such plan excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section
412 of the Code has been incurred, whether or not waived, and the fair market value of the assets
of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such plan determined using reasonable actuarial
assumptions, except, in each case, as would not have a Material Adverse Effect.
12
(cc) Accounting Controls. The Company and its subsidiaries maintain systems of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are executed
in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(dd) Insurance. Except as disclosed in each of the Registration Statement, the Pricing
Disclosure Package and the Prospectus, the Company and its significant subsidiaries have insurance
covering their respective properties, operations, personnel and businesses, including business
interruption insurance, which insurance is in amounts and insures against such losses and risks as
are adequate to protect the Company and its significant subsidiaries and their respective
businesses; and neither the Company nor any of its significant subsidiaries has (i) received notice
from any insurer or agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance or (ii) any reason to believe
that it will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to
continue its business.
(ee) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ff) No Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it is a party or is
subject, from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or assets to the Company
or any other subsidiary of the Company, other than any prohibition pursuant to or contemplated by
the Credit Agreement.
(gg) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Shares.
(hh) No Registration Rights. Except as disclosed in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus, no person has the right to require the Company
13
or any of its subsidiaries to register any securities for sale under the Securities Act by reason
of the filing of the Registration Statement with the Commission or the issuance and sale of the
Shares to be sold by the Company hereunder or, to the best knowledge of the Company, the sale of
the Shares to be sold by the Selling Stockholder hereunder.
(ii) No Stabilization. The Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares in violation of any state or federal laws.
(jj) Business With Cuba. The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.
(kk) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened, except, in each case, as would not
reasonably be expected to have a Material Adverse Effect.
(ll) OFAC. Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC.
(mm) Margin Rules. Neither the issuance, sale and delivery of the Shares nor the application
of the proceeds thereof by the Company as described in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(nn) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act, contained in the Registration
Statement, the Pricing Disclosure Package or the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(oo) Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included or
14
incorporated by reference in each of the Registration Statement, the Pricing Disclosure
Package and the Prospectus is not based on or derived from sources that are reliable and accurate
in all material respects.
(pp) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities as such, to comply with Section 402 of
the Xxxxxxxx-Xxxxx Act of 2002.
(qq) No NASD Affiliation. Except as described in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus, no officer, director or nominee for director or has
a direct or indirect affiliation or association with any member of the National Association of
Securities Dealers, Inc.
(rr) Exchange Listing. To the extent not previously approved for listing pursuant to the
Company’s Nasdaq Stock Market listing application filed in connection with the Company’s initial
public offering, the Company has filed a notice of listing of the Shares on the National
Association of Securities Dealers Automated Quotations Global Market (the “Nasdaq Global Market”).
4. Representations and Warranties of the Selling Stockholder. The Selling Stockholder
represents and warrants to each Underwriter and the Company that:
(a) Required Consents; Authority. All consents, approvals, authorizations and orders
necessary for the execution and delivery by the Selling Stockholder of this Agreement, and for the
sale and delivery of the Shares to be sold by the Selling Stockholder hereunder, have been
obtained, except as may be required under applicable state securities laws in connection with the
purchase and distribution of the Shares by the Underwriters and except for any such consents,
approvals, authorizations or orders the failure of which to obtain would not, individually or in
the aggregate, materially and adversely affect the ability of the Selling Stockholder to perform
its obligations under this Agreement; and the Selling Stockholder has full right, power and
authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be
sold by the Selling Stockholder hereunder; this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder.
(b) No Conflicts. The execution, delivery and performance by the Selling Stockholder of this
Agreement and the sale of the Shares to be sold by the Selling Stockholder will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Selling Stockholder pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by
which the Selling Stockholder is bound or to which any of the property or assets of the Selling
Stockholder is subject, (ii) result in any violation of the charter or by-laws of the Selling
Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory agency applicable to the
Selling Stockholder, except, in the case of clauses (i) and (iii) above, for any such conflicts,
breaches, violations, defaults, liens, charges or encumbrances as would not, individually or in the
aggregate,
15
materially and adversely affect the ability of the Selling Stockholder to perform its obligations
under this Agreement.
(c) Title to Shares. The Selling Stockholder has valid title to the Shares to be sold at the
Closing Date, by the Selling Stockholder hereunder, free and clear of all liens, encumbrances,
equities or adverse claims; the Selling Stockholder will have, immediately prior to the Closing
Date, valid title to the Shares to be sold at the Closing Date, by the Selling Stockholder, free
and clear of all liens, encumbrances, equities or adverse claims; and, upon the delivery of and
payment for such Shares at the time of delivery hereunder, valid title to such Shares, free and
clear of all liens, encumbrances, equities or adverse claims, will pass to the several
Underwriters.
(d) No Stabilization. The Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Shares in violation of any state or federal laws.
(e) Registration Statement, Pricing Disclosure Package, Prospectus and Issuer Free Writing
Prospectus. As of the applicable effective date of the Registration Statement and any amendment
thereto, the Registration Statement did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements therein not misleading; as of the Applicable Time and as of the Closing Date, the
Pricing Disclosure Package did not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
as of the applicable date of the Prospectus and any amendment or supplement thereto and as of the
Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; and as of
the Applicable Time, to the knowledge of the Selling Stockholder, each Issuer Free Writing
Prospectus (including, without limitation, any “road show” that is a free writing prospectus under
Rule 433), when considered together with the Pricing Disclosure Package, did not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the representations and warranties set forth in this
Section 4(e) are limited to (i) statements made in reliance upon and in conformity with information
relating to the Selling Stockholder furnished to the Company in writing by the Selling Stockholder
expressly for use in the Registration Statement, the Pricing Disclosure Package, the Prospectus,
each Issuer Free Writing Prospectus or any amendments or supplements thereto (it being understood
and agreed that the only such information furnished by the Selling Stockholder to the Company
consists of the information specifically relating to the Selling Stockholder set forth in the table
and notes thereto under the caption “Selling Stockholder” in the most recent Preliminary Prospectus
and the Prospectus) and (ii) omissions relating specifically to the Selling Stockholder.
(f) Material Information. As of the date hereof, as of the Closing Date, and as of any
Additional Closing Date, as the case may be, the sale of the Shares by the Selling Stockholder is
16
not and will not be prompted by any material information concerning the Company which is not set
forth in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus.
5. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act and will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or sale of the Securities;
and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to
the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New
York City time, on the business day next succeeding the date of this Agreement in such quantities
as the Representative may reasonably request. The Company will pay the registration fees for this
offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without
giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge (i) upon request, to the
Representative, two signed copies of the Registration Statement as originally filed and each
amendment thereto, in each case including all exhibits and consents filed therewith and documents
incorporated by reference therein; and (ii) to each Underwriter, upon request, (A) a conformed copy
of the Registration Statement as originally filed and each amendment thereto (without exhibits) and
(B) subject to Section 5(e) below, during the Prospectus Delivery Period, as many copies of the
Prospectus (including all amendments and supplements thereto and documents incorporated by
reference therein) and each Issuer Free Writing Prospectus as the Representative may reasonably
request. As used herein, the term “Prospectus Delivery Period” means such period of time after the
first date of the public offering of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered (or required to be delivered
but for Rule 172 under the Securities Act) in connection with sales of the Shares by any
Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representative and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed
amendment or supplement to which the Representative reasonably objects promptly after receipt
thereof. The Company shall not make any offer relating to the Shares that would constitute an
Issuer Free Writing Prospectus without the prior written consent of the Representative.
(d) Notice to the Representative. The Company will advise the Representative promptly, and
confirm such advice in writing upon request, (i) when the Registration Statement
17
has become effective; (ii) when any amendment to the Registration Statement has been filed or
becomes effective; (iii) when any supplement to the Prospectus or any Issuer Free Writing
Prospectus or any amendment to the Prospectus has been filed; (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or
the receipt of any comments from the Commission relating to the Registration Statement or any other
request by the Commission for any additional information; (v) of the issuance by the Commission of
any order suspending the effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence
of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing
Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free
Writing Prospectus is delivered to a purchaser, not misleading; (vii) of the receipt by the Company
of any notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (viii) of
the receipt by the Company of any notice with respect to any suspension of the qualification of the
Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and the Company will use all commercially reasonable efforts to prevent the
issuance of any such order suspending the effectiveness of the Registration Statement, preventing
or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Shares and, if any such order is issued, will use all commercially reasonable
efforts to obtain as soon as practicable the withdrawal thereof.
(e) Ongoing Compliance. If (1) during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) if
in the written advice of counsel to the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, the Company will immediately notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and
furnish to the Underwriters and to such dealers as the Representative may designate, such
amendments or supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances existing when
the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply
with applicable law, (2) at any time prior to the Closing Date (i) any event shall occur or
condition shall exist as a result of which the Pricing Disclosure Package as then amended or
supplemented would include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances, not misleading or (ii) if in the written advice of counsel to the Underwriters,
it is necessary to amend or supplement the Pricing Disclosure Package to comply with applicable
law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representative may designate, such amendments or
18
supplements to the Pricing Disclosure Package as may be necessary so that the statements in the
Pricing Disclosure Package as so amended or supplemented will not, in the light of the
circumstances, be misleading or so that the Pricing Disclosure Package will comply with applicable
law, or (3) at any time after the date hereof any events shall have occurred as a result of which
any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the
information in the Registration Statement, the most recent Preliminary Prospectus or the
Prospectus, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representative may designate, such amendments or
supplements to such Issuer Free Writing Prospectus that will correct such conflict; provided that
the preparation, filing and furnishing of any such amendments or supplements on or prior to the
date that is nine months after the first date of the public offering of the Shares shall be at the
expense of the Company and shall thereafter be at the expense of the Underwriters.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of Canada and such other jurisdictions as the Representative shall
reasonably request and will continue such qualifications in effect so long as required for
distribution of the Shares; provided that the Company shall not be required to (i) qualify as a
foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it
would not otherwise be required to so qualify, (ii) file any general consent to service of process
in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(g) Earnings Statement. The Company will make generally available to its security holders and
the Representative as soon as practicable an earnings statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration
Statement.
(h) Clear Market. For a period of 90 days after the date of this Agreement, without the prior
written consent of the Representative, the Company will not (i) offer, pledge, announce the
intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, any shares of the Stock or any securities convertible into or
exercisable or exchangeable for the Stock, (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of
the Common Stock or such other securities, in cash or otherwise, (iii) file or cause to be filed a
registration statement, including any amendments, with respect to the registration of any shares of
Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other
securities of the Company or (iv) publicly disclose the intention to do any of the foregoing, in
each case, without the prior written consent of the Representative, other than (A) the Shares to be
sold hereunder, (B) any shares of Common Stock issued upon the exercise of options granted under
existing employee stock option plans, (C) grants by the Company of employee stock options or
restricted stock in accordance with the terms of a plan in effect on the date hereof, (D) the
filing by
19
the Company of any registration statement with the Commission on Form S-8 relating to the offering
of securities pursuant to the terms of a plan in effect on the date hereof and (E) shares of Common
Stock (or options, warrants or convertible securities in respect thereof) issued in connection with
a bona fide merger or acquisition transaction, provided that the transferee of such Common Stock
(or options, warrants or convertible securities in respect thereof) so issued agrees in writing to
be subject to the restrictions set forth in this Section 6(h) for the remainder of the 90-day
restricted period. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day
restricted period, the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the 90-day restricted period, the
Company announces that it will release earnings results during the 16-day period beginning on the
last day of the 90-day period, the restrictions imposed by this Section 5(h) shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings release
or the occurrence of the material news or material event.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares as
described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus
under the heading “Use of Proceeds”.
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(k) Reports. To the extent not available on the Commission’s XXXXX system, for a period of
two years from the date hereof, the Company will furnish upon request to the Representative, as
soon as they are available, copies of all reports or other communications (financial or other)
furnished to holders of the Shares, and copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange or automatic quotation system.
(l) Record Retention. The Company will retain in accordance with the Securities Act all
Issuer Free Writing Prospectuses not required to be filed pursuant to the Securities Act.
6. Further Agreements of the Selling Stockholder. The Selling Stockholder covenants and
agrees with each Underwriter that:
(a) Clear Market. For a period of 90 days after the date of this Agreement, without the prior
written consent of the Representative, the Selling Stockholder will not (i) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or (ii) enter into any
swap or other agreement that transfers, in whole or in part, any of the economic consequences of
ownership of Common Stock, whether any such 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 or (iii) make
any demand for or exercise any right with respect to the registration of any shares of Common Stock
or any security convertible into or exercisable or exchangeable for Common Stock without the prior
20
written consent of the Representative in each case other than (A) Shares to be sold by the
Selling Stockholder hereunder, (B) transactions relating to shares of Common Stock acquired in open
market transactions after the Closing Date, (C) transfers of shares of Common Stock as a bona fide
gift, provided that (x) the transferee of such Common Stock agrees in writing to be subject to the
restrictions set forth in this Section 6(a) for the remainder of the 90-day restricted period and
(y) no party, including the Selling Stockholder, shall be required to, nor shall it voluntarily,
file a report under Section 16(a) of the Exchange Act in connection with such transfer (other than
a filing on Form 5 made after the expiration of the 90-day restricted period referred to above),
(D) dispositions to any trust for the direct or indirect benefit of the Selling Stockholder,
provided that (x) the transferee of such Common Stock agrees in writing to be subject to the
restrictions set forth in this Section 6(a) for the remainder of the 90-day restricted period and
(y) no party, including the Selling Stockholder, shall be required to, nor shall it voluntarily,
file a report under Section 16(a) of the Exchange Act in connection with such disposition (other
than a filing on Form 5 made after the expiration of the 90-day restricted period referred to
above), (E) pledges to any financial institution as collateral and foreclosures of such pledges,
provided that the transferee of such Common Stock agrees in writing to be subject to the
restrictions set forth in this Section 6(a) for the remainder of the 90-day restricted period or
(F) transfers by the Selling Stockholder to its affiliates, provided that the transferee of such
Common Stock agrees in writing to be subject to the restrictions set forth in this Section 6(a) for
the remainder of the 90-day restricted period. Notwithstanding the foregoing, if (1) during the
last 17 days of the 90-day restricted period, the Company issues an earnings release or material
news or a material event relating to the Company occurs; or (2) prior to the expiration of the
90-day restricted period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 90-day period, the restrictions imposed by this
Section 6(a) shall continue to apply with respect to the Selling Stockholder until the expiration
of the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
The restrictions set forth in this Section 6(a) shall lapse and become null and void if (i)
the registration statement filed with the Commission with respect to the offering of the Shares is
withdrawn prior to the effectiveness of this Agreement, (ii) the Selling Stockholder notifies the
Representative, prior to the effectiveness of this Agreement, that it does not intend to proceed
with the offering of the Shares to be sold by it hereunder, or (iii) this Agreement (other than the
provisions hereof which survive termination) shall terminate or be terminated prior to payment for
and delivery of the Shares to be sold hereunder.
(b) Taxes. The Selling Stockholder will deliver to the Representative prior to or at the
Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by the Treasury Department regulations in lieu thereof) in
order to facilitate the Underwriters’ documentation of their compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the
transactions herein contemplated. The Selling Stockholder will pay or cause to be paid all taxes,
if any, on the transfer and sale of the Shares.
(c) Free Writing Prospectus. Neither the Selling Stockholder nor any person acting on behalf
of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) shall use
or refer to any “free writing prospectus” (as defined in Rule 405 under the Securities Act),
21
relating to the Shares, other than any Filed Issuer Free Writing Prospectus.
7. Certain Agreements of the Underwriters. Each Underwriter severally represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) any Filed Issuer Free Writing Prospectus or any Issuer Free Writing
Prospectus prepared pursuant to Section 5(c) above, or (ii) any free writing prospectus prepared by
such underwriter and consented to by the Company in advance, including any such free writing
prospectus that is consented to by the Company in advance that contains “issuer information” (as
defined in Rule 433(h)(2) under the Securities Act) that was not included (including through
incorporation by reference) in the most Preliminary Prospectus or a previously filed Issuer Free
Writing Prospectus (each such free writing prospectus referred to in clause (ii), an “Underwriter
Free Writing Prospectus,” and any such “issuer information” referred to in cause (ii) with respect
to whose use the Company has given its consent, “Permitted Issuer Information”).
(b) It will retain copies of each free writing prospectus used or referred to by it to the
extent required by Rule 433 under the Securities Act.
8. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on any Additional Closing
Date, as the case may be, as provided herein is subject to the performance by, with respect to the
Closing Date, the Company and, with respect to the Closing Date or any Additional Closing Date, as
the case may be, the Selling Stockholder of their respective covenants and other obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, only to the extent required by Rule 433 under the Securities Act) and in accordance
with Section 5(a) hereof.
(b) Representations and Warranties. The respective representations and warranties of the
Company and the Selling Stockholder contained herein shall be true and correct on the date hereof
and on and as of the Closing Date or any Additional Closing Date, as the case may be; and the
statements of the Company and its officers and of the Selling Stockholder made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date or any
Additional Closing Date, as the case may be.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement,
no event or condition of a type described in Section 3(h) hereof shall have occurred or
22
shall exist, which event or condition is not described in each of the Pricing Disclosure Package
(excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or
supplement thereto) and the effect of which in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the
Closing Date or any Additional Closing Date, as the case may be, on the terms and in the manner
contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(d) Officer’s Certificate of the Company and the Selling Stockholder. The Representative
shall have received on and as of the Closing Date or any Additional Closing Date, as the case may
be, a certificate (i) of the chief financial officer or chief accounting officer of the Company and
one additional senior executive officer of the Company who is satisfactory to the Representative
(A) confirming that such officers have carefully reviewed each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus and, to the best knowledge of such officers, the
representations of the Company set forth in Section 3(b), 3(c) and 3(d) hereof are true and
correct, (B) confirming that the other representations and warranties of the Company in this
Agreement are true and correct and that the Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date or Additional Closing Date, as the case may
be, and (C) to the effect set forth in paragraphs (a) and (c) above and (ii) from the Selling
Stockholder, in form and substance reasonably satisfactory to the Representative, (A) confirming
that the representation of the Selling Stockholder set forth in Section 4(e) hereof is true and
correct and (B) confirming that the other representations and warranties of the Selling Stockholder
in this Agreement are true and correct and that the Selling Stockholder has complied in all
material respects with all agreements and satisfied in all material respects all conditions on its
part to be performed or satisfied hereunder at or prior to such Closing Date or Additional Closing
Date, as the case may be.
(e) Comfort Letters. On the date of this Agreement and on the Closing Date or any Additional
Closing Date, as the case may be, PricewaterhouseCoopers LLP shall have furnished to the
Representative, at the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representative, (i) confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii)
containing other statements and information of the type customarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, most recent Preliminary Prospectus (with
respect to the letters delivered on the date of this Agreement) and the Prospectus (with respect to
the letters delivered on the Closing Date and any Additional Closing Date); provided that the
letters delivered on the Closing Date or an Additional Closing Date, as the case may be, shall use
a “cut-off” date no more than three business days prior to such Closing Date or such Additional
Closing Date, as the case may be. With respect to the letter of PricewaterhouseCoopers LLP
delivered to the Representative on the Closing Date or an Additional Closing Date, as the case may
be, such letter shall confirm in all material respects the conclusions and findings of such firm
with respect to the financial statements, financial information and other matters covered by the
letter of such firm dated and delivered the date of this Agreement.
23
(f) Opinion of Xxxxxxx Procter LLP. Xxxxxxx Procter LLP, outside counsel for the Company,
shall have furnished to the Representative, at the request of the Company, (i) its written opinion,
dated the Closing Date or an Additional Closing Date, as the case may be, and addressed to the
Underwriters, in the form attached as Annex A-I hereto, and (ii) its disclosure letter, dated the
Closing Date or an Additional Closing Date, as the case may be, and addressed to the Underwriters,
in the form attached as Annex A-II hereto.
(g) Opinion of Xxxxxx Xxxx, LLP. Xxxxxx Xxxx, LLP, outside counsel for the Company, shall
have furnished to the Representative, at the request of the Company, its written opinion, dated the
Closing Date or an Additional Closing Date, as the case may be, and addressed to the Underwriters,
in the form attached as Annex B hereto.
(h) Opinion of Xxxx Xxxxxx, Esq. Xxxx Xxxxxx, Esq., General Counsel of the Company, shall
have furnished to the Representative, at the request of the Company, his written opinion, dated the
Closing Date or an Additional Closing Date, as the case may be, and addressed to the Underwriters,
in the form attached as Annex C hereto.
(i) Opinion of Counsel for the Selling Stockholder. Xxxx Xxxxx LLP, counsel for the Selling
Stockholder, shall have furnished to the Representative, at the request of the Selling Stockholder,
its written opinion, dated the Closing Date and addressed to the Underwriters, in the form attached
as Annex E hereto.
(j) Opinion of Counsel for the Underwriters. The Representative shall have received on and as
of the Closing Date or an Additional Closing Date, as the case may be, an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, with respect to such matters as the Representative may
reasonably request, and such counsel shall have received such documents and information as it may
reasonably request to enable them to pass upon such matters.
(k) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or an Additional Closing
Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order of
any federal, state or foreign court shall have been issued that would, as of the Closing Date or an
Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares.
(l) Good Standing. The Representative shall have received on and as of the Closing Date or an
Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company and its significant subsidiaries in their respective jurisdictions of organization and
their good standing as foreign entities in such other jurisdictions as the Representative may
reasonably request, in each case in writing or any standard form of telecommunication from the
appropriate governmental authorities of such jurisdictions.
(m) Lock-up Agreements. The “lock-up” agreements between you and certain officers and
directors of the Company, each substantially in the form of Annex D hereto relating to sales and
certain other dispositions of shares of the Common Stock or certain other securities, delivered
24
to you on or before the date hereof, shall be in full force and effect on the Closing Date or an
Additional Closing Date, as the case may be.
(n) Additional Documents. On or prior to the Closing Date or, with respect to the Company, an
Additional Closing Date, as the case may be, the Company and the Selling Stockholder shall have
furnished to the Representative such further certificates and documents as the Representative may
reasonably request and that are customarily delivered in connection with transactions of the type
contemplated by this Agreement.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters in accordance with the terms
of this Agreement.
9. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, reasonable legal fees and other reasonable expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred),
joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in (A) the Registration Statement, the most recent
Preliminary Prospectus, the Prospectus or in any amendment or supplement thereto, (B) any Issuer
Free Writing Prospectus or in any amendment or supplement thereto or (C) any Permitted Issuer
Information used or referred to in any “free writing prospectus” (as defined in Rule 405 under the
Securities Act) by any Underwriter or (D) any “road show” (as defined in Rule 433) not constituting
an Issuer Free Writing Prospectus (a “Non-Prospectus Road Show”), or (ii) the omission or alleged
omission to state therein any material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, in each case except insofar as such losses, claims, damages or liabilities arise out
of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use therein,
it being understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (c) below.
(b) Indemnification of the Underwriters by the Selling Stockholder. The Selling Stockholder
agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the reasonable legal fees and other
reasonable expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are
based
25
upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the most recent Preliminary Prospectus, the Prospectus, any Issuer Free
Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer
Information, any Non-Prospectus Road Show or any “free writing prospectus” (as defined in Rule 405
under the Securities Act) prepared by or on behalf of such Selling Stockholder or used or referred
to by such Selling Stockholder in connection with the offering of the Shares in violation of
Section 6(c) hereof (a “Selling Stockholder Free Writing Prospectus”), (ii) the omission or alleged
omission to state in the Registration Statement, the most recent Preliminary Prospectus, the
Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information, any
Non-Prospectus Road Show or any Selling Stockholder Free Writing Prospectus any material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the indemnity agreement of
such Selling Stockholder set forth in this paragraph 9(b) shall be limited (other than in respect
of any Selling Stockholder Free Writing Prospectus) to such statements or omissions that are made
in reliance upon and in conformity with information relating to such Selling Stockholder furnished
to the Company in writing by such Selling Stockholder expressly for use in the Registration
Statement, the most recent Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus or in any amendment or supplement thereto (it being understood and agreed that the only
such information furnished by the Selling Stockholder to the Company consists of the information
specifically relating to the Selling Stockholder set forth in the table and notes thereto under the
caption “Selling Stockholder” in the most recent Preliminary Prospectus and the Prospectus). The
aggregate liability of the Selling Stockholder under the indemnity agreement contained in this
paragraph 9(b) and the contribution agreement contained in paragraph 9(e) shall be limited in an
amount equal to the aggregate net proceeds of the Shares sold by the Selling Stockholder under this
Agreement.
(c) Indemnification of the Company and the Selling Stockholder. The Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers
who signed the Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the Selling
Stockholder, its respective affiliates, directors and officers and each person, if any, who
controls the Selling Stockholder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the indemnity set forth in the first paragraph of
Section 9(a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use in the
Registration Statement, the most recent Preliminary Prospectus, the Prospectus or in any amendment
or supplement thereto, any Issuer Free Writing Prospectus or in any amendment or supplement thereto
or in any Non-Prospectus Road Show, it being understood and agreed upon that the only such
information furnished by any Underwriter consists of the following information: the concession
figure appearing in the fourth paragraph under the caption “Underwriting” and the information
contained in paragraphs 13, 14 and 16 under the caption “Underwriting” in each of the most recent
Preliminary Prospectus and the Prospectus.
26
(d) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to the preceding paragraphs of this Section
9, such person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it may have under this
Section 9 except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further, that the failure to notify
the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified
Person otherwise than under this Section 9. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the
Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification pursuant to this
Section 9 that the Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to one local counsel in each applicable
jurisdiction) for all Indemnified Persons, and that all such fees and expenses shall be paid or
reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representative, any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall be designated in
writing by the Company, any such separate firm for the Selling Stockholder shall be designated in
writing by the Selling Stockholder. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
in writing that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party
27
and indemnification could have been sought hereunder by such Indemnified Person, unless such
settlement (x) includes an unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims that are the
subject matter of such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b) and (c) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company or the
Selling Stockholder, as the case may be, on the one hand and the Underwriters, on the other hand,
from the offering of the Shares or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company or the Selling Stockholder, as
the case may be, on the one hand and the Underwriters, on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company or the
Selling Stockholder, as the case may be, on the one hand and the Underwriters, on the other hand
shall be deemed to be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Company or the Selling Stockholder, as the case may be, from the sale of
the Shares and the total underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear
to the aggregate offering price of the Shares. The relative fault of the Company or the Selling
Stockholder, as the case may be, on the one hand and the Underwriters, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Stockholder, or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The aggregate liability of each the Selling Stockholder under the
contribution agreement contained in this paragraph 9(e) and the indemnity agreement contained in
paragraph 9(b) shall be limited to an amount equal to the aggregate net proceeds of the
Underwritten Shares sold by the Selling Stockholder under this Agreement.
(f) Limitation on Liability. The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Selling Stockholder or the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (e) above. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and liabilities referred to in
paragraph (e) above shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with any such action or
claim. Notwithstanding the provisions of this Section 9, in no event shall any Underwriter be
required to contribute any amount in excess of the amount by which the total underwriting discounts
and commissions received by such Underwriter with respect to the offering of the Shares
28
exceeds the amount of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are
several in proportion to their respective purchase obligations hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
10. Effectiveness of Agreement. This Agreement shall become effective upon the later
of (i) the execution and delivery hereof by the parties hereto and (ii) the filing of the
Registration Statement (or, if applicable, any post-effective amendment thereto).
11. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by written notice to the Company and the Selling Stockholder, if after the
execution and delivery of this Agreement and prior to the Closing Date or, in the case of the
Option Shares, prior to an Additional Closing Date (i) trading generally shall have been suspended
or materially limited on or by any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade; (ii) trading of any securities issued or
guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis, including, without
limitation, as a result of terrorist activities after the date hereof, either within or outside the
United States, that, in the judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the
Closing Date or an Additional Closing Date, as the case may be, on the terms and in the manner
contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
12. Defaulting Underwriter. (a) If, on the Closing Date or an Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to purchase the Shares that it
has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Shares by other persons satisfactory to the Company and
the Selling Stockholder on the terms contained in this Agreement. If, within 36 hours after any
such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholder shall be entitled to a further period of
36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree to purchase the
Shares of a defaulting Underwriter, either the non-defaulting Underwriters or the Company and the
Selling Stockholder may postpone the Closing Date or an Additional Closing Date, as the case may
be, for up to five full business days in order to effect any changes that in the opinion of counsel
for the Company, counsel for the Selling Stockholder or counsel for the Underwriters may be
necessary in the Registration Statement and the Prospectus or in any other document or
29
arrangement, and the Company agrees to promptly prepare any amendment or supplement to the
Registration Statement and the Prospectus or any such other document that effects any such changes.
As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement
unless the context otherwise requires, any person not listed in Schedule I hereto that, pursuant to
this Section 12, purchases Shares that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholder as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or an Additional Closing Date, as the case may be does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date, then the Company and
the Selling Stockholder shall have the right to require each non-defaulting Underwriter to purchase
the number of Shares that such Underwriter agreed to purchase hereunder on such date plus such
Underwriter’s pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholder as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or an Additional Closing Date, as the case may be, exceeds
one-eleventh of the aggregate amount of Shares to be purchased on such date, or if the Company and
the Selling Stockholder shall not exercise the right described in paragraph (b) above, then this
Agreement or, with respect to any Additional Closing Date, the obligation of the Underwriters to
purchase Shares on an Additional Closing Date, as the case may be, shall terminate without
liability on the part of the non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 12 shall be without liability on the part of the Company and the Selling
Stockholder, except that the Company will continue to be liable for the payment of expenses as set
forth in Section 13 hereof and except that the provisions of Section 9 hereof shall not terminate
and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Stockholder or any non-defaulting Underwriter for damages caused
by its default.
13. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company (and solely with respect to
clause (ix) below, the Selling Stockholder) will pay or cause to be paid all costs and expenses
incident to the performance of their obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of the Shares and any
taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, the Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof (except that the Underwriters
shall pay or cause to be paid one-half of the costs attributable to the distribution via courier or
other
30
shipping service of such documents); (iii) the fees and expenses of the Company’s counsel and
independent accountants; (iv) the fees and expenses incurred, if any, in connection with the
registration or qualification and determination of eligibility for investment of the Shares under
the laws of Canada and such other jurisdictions as the Representative may designate and the
preparation, printing and distribution of a Canadian wrapper and Blue Sky Memorandum (including the
reasonable related fees and expenses of counsel for the Underwriters); (v) the cost of preparing
stock certificates; (vi) the costs and charges of any transfer agent and any registrar; (vii) all
expenses and application fees incurred in connection with any filing with, and clearance of the
offering by, the National Association of Securities Dealers, Inc. (including the reasonable related
fees and expenses of counsel for the Underwriters); (viii) all expenses and application fees
related to the quotation of the Shares on the Nasdaq Global Market; and (ix) the fees and expenses
of the Selling Stockholder’s counsel.
(b) If (i) this Agreement is terminated pursuant to Section 11, (ii) the Company or the
Selling Stockholder for any reason fails to tender the Shares for delivery to the Underwriters or
(iii) the Underwriters decline to purchase the Shares for any reason permitted under this Agreement
(other than a termination of this Agreement pursuant to Section 12 hereof), the Company agrees to
reimburse the Underwriters for all reasonable out-of-pocket costs and expenses (including the
reasonable fees and expenses of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement and the offering contemplated hereby.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 9 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
15. Research Independence. Each of the Company and the Selling Stockholder
acknowledge that the Underwriters’ research analysts and research departments are required to be
independent from their respective investment banking divisions and are subject to certain
regulations and internal policies, and that such Underwriters’ research analysts may hold and make
statements or investment recommendations and/or publish research reports with respect to the
Company and/or the offering of the Shares that differ from the views of its investment bankers.
The Company and the Selling Stockholder hereby waive and release, to the fullest extent permitted
by law, any claims that the Company or the Selling Stockholder may have against the Underwriters
solely with respect to any conflict of interest that may arise from the fact that the views
expressed by their independent research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company or the Selling Stockholder by the
Underwriters’ investment banking divisions. The Company and the Selling Stockholder acknowledge
that each of the Underwriters is a full service securities firm and as such from time to time,
subject to applicable securities laws, may effect transactions for its own account or the account
of its customers and hold long or short positions in debt or equity securities of the Company.
31
16. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Selling Stockholder and the Underwriters contained in
this Agreement or made by or on behalf of the Company, the Selling Stockholder or the Underwriters
pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery
of and payment for the Shares and shall remain in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of the Company, the Selling
Stockholder or the Underwriters.
17. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule
405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth
in Rule 1-02(w) of Regulation S-X under the Securities Act.
18. Miscellaneous. (a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by the Representative on behalf of the Underwriters, and any
such action taken by the Representative shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative at Xxxxxx
Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Fax: (000) 000-0000), Attention:
Syndicate Registration, with a copy, in the case of any notice pursuant to Section 9(d) hereof, to
the Director of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Fax: (000) 000-0000). Notices to the Company shall be given
to it at DealerTrack Holdings, Inc., 0000 Xxxxxx Xxxxxx, Xxxxx X00, Xxxx Xxxxxxx, Xxx Xxxx 00000
(Fax: (000) 000-0000), Attention: Xxxx X. Xxxxxx, Esq. Notices to the Selling Stockholder shall be
given to Xxxxx Xxxxxx, Vice President/General Counsel, First Advantage Corporation, 000 Xxxxxxxx
Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (Fax: (000) 000-0000).
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, DEALERTRACK HOLDINGS, INC. |
||||
By: | Xxxx X. X’Xxxx | |||
Name: | Xxxx X. X’Xxxx | |||
Title: | Chief Executive Officer | |||
CREDIT MANAGEMENT SOLUTIONS, INC. |
||||
By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Vice President | |||
Accepted: October 18, 2007
XXXXXX BROTHERS INC.
For itself and on behalf of the
several Underwriters listed
in Schedule I hereto.
several Underwriters listed
in Schedule I hereto.
By:
|
/s/ Xxxxxxxx Xxxxx | |||
Name: Xxxxxxxx Xxxxx Title: Vice President |
Schedule I
Underwriter | Number of Underwritten Shares | |||||||
Xxxxxx Brothers Inc. |
1,575,000 | |||||||
Xxxxxxx Xxxxx & Company, L.L.C. |
810,000 | |||||||
Deutsche Bank Securities Inc. |
810,000 | |||||||
Xxxxx and Company, LLC |
360,000 | |||||||
Wachovia Capital Markets, LLC |
360,000 | |||||||
JMP Securities LLC. |
225,000 | |||||||
Xxxxxx Xxxxxx Partners LLC |
225,000 | |||||||
Barrington Research Associates, Inc. |
135,000 | |||||||
Total | 4,500,000 |