EXHIBIT 1.1
[ ] SHARES
ENGENIO INFORMATION TECHNOLOGIES, INC.
COMMON STOCK, PAR VALUE $0.001 PER SHARE
UNDERWRITING AGREEMENT
July , 2004
July , 2004
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxx Brothers Inc.
Wachovia Capital Markets, LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Engenio Information Technologies, Inc., a Delaware corporation (the
"COMPANY") being the wholly-owned subsidiary of LSI Logic Corporation, a
Delaware corporation (the "PARENT"), proposes to issue and sell to the several
Underwriters named in Schedule I hereto (the "UNDERWRITERS") [ ] shares
of its Class A Common Stock, par value $0.001 per share (the "FIRM SHARES"). The
Company also proposes to issue and sell to the several Underwriters not more
than an additional [ ] shares of its Class A Common Stock, par value
$0.001 per share (the "ADDITIONAL SHARES") if and to the extent that you, as
Managers of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of common stock granted to the
Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "SHARES." The shares of the Class A
Common Stock, par value $0.001 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462
Registration Statement.
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) Based on advice from the Commission, the Registration Statement
has become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or, to the Company's knowledge, threatened by the
Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no
representations or warranties as to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(d) The Company has no subsidiary that constitutes a significant
subsidiary (as defined in Rule 1-02(w) of Regulation S-X of the Securities
Act) of the Company. The Company's subsidiary Engenio Information
Technologies Europe Ltd. (Ireland) has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and, except as disclosed in the Prospectus, are owned
directly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) The shares of the capital stock of the Company outstanding prior
to the issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
(i) any provision of applicable law or the certificate of incorporation or
by-laws of the Company or (ii) any agreement or other instrument binding
upon the Company or any of its subsidiaries, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary (except, in the case of this clause (ii), for
any such contravention that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole), and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(l) The preliminary prospectus dated [ ] filed as part of the
registration statement and any preliminary prospectus filed as part of any
subsequent amendment thereto complied when so filed in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder.
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(m) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(n) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (1) the Company and
its subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business; (2) the Company has not purchased any of its
outstanding capital stock, nor (except as disclosed in the Prospectus)
declared, paid or otherwise made any dividend or distribution of any kind
on its capital stock other than ordinary and customary dividends; and (3)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its subsidiaries, except in each
case as described in the Prospectus.
(r) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the
Company and its subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries, or used by the Company and
its subsidiaries pursuant to that certain multi-site license agreement
between the Company and Parent, are held or used under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in the Prospectus.
(s) The Company and its subsidiaries own or possess, license or can
acquire or license on reasonable terms, all material patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade
names currently employed by them in connection with the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse affect on the Company and its subsidiaries,
taken as a whole.
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(t) No material labor dispute with the employees of the Company or any
of its subsidiaries exists, except as described in the Prospectus, or, to
the knowledge of the Company, is imminent; and, to the knowledge of the
Company, there is no existing, threatened or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or
contractors that would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(u) The Company and its subsidiaries are insured by the insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; since December 31, 2003, neither the Company nor any of its
subsidiaries has been refused any insurance coverage sought or applied for;
and neither the Company nor any of its subsidiaries has any reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as described in the Prospectus.
(v) The Company and its subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as described the Prospectus.
(w) Each of (i) the Master Separation Agreement, effective as of
December 31, 2003, (ii) the General Assignment and Assumption Agreement,
effective as of December 31, 2003, (iii) the Intellectual Property
Agreement, effective as of December 31, 2003, (iv) the Employee Matters
Agreement, effective as of December 31, 2003, (v) the Indemnification and
Insurance Matters Agreement, effective as of December 31, 2003, (vi) the
Tax Sharing Agreement, effective as of March 15, 2004, (vii) the Real
Estate Matters Agreement, effective as of March 15, 2004, and (viii) the
Transition Services Agreement, effective as of March 15, 2004, each
agreement between the Company and Parent (collectively, the "INTERCOMPANY
AGREEMENTS"), has been duly authorized, executed and delivered by the
Company, is in full force and effect, and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject to (1) judicial principles limiting the
availability of specific performance, injunctive relief and other equitable
remedies; (2) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally; and (3) limitations on the enforceability of certain
indemnification provisions of the Indemnification and Insurance Matters
Agreement under applicable laws.
(x) The execution, delivery and performance by the Company of each of
the Intercompany Agreements will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any subsidiary is bound or
to which the Company or subsidiary is subject, nor will such actions result
in any violation of any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
subsidiary or any of their properties or assets (except in each case for
such conflicts, breaches, violations and defaults as would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole); nor will such actions result in any violation of any provision of
applicable law or of the certificate of incorporation or bylaws of the
Company; and no consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body is required for
the execution and delivery by the Company of, and compliance by the Company
with, the provisions of each of the Intercompany Agreements, except such as
shall have been obtained or waived or that, if not obtained or waived,
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(y) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (1) transactions are executed in accordance with
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management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (3) access to assets is permitted only in accordance
with management's general or specific authorization; and (4) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(z) The Company's Board of Directors has validly appointed an audit
committee whose composition satisfies the requirements of New York Stock
Exchange Rule 303A (the "NYSE RULES") and the Board of Directors and/or the
audit committee has adopted a charter that satisfies the requirements of
the NYSE Rules.
(aa) The Company has complied in all material respects with all
provisions of the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the "SARBANES OXLEY ACT") that are
applicable to the Company as of the date of this Agreement and the Closing
Date.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $[ ] a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to [ ] Additional
Shares at the Purchase Price. You may exercise this right on behalf of the
Underwriters in whole or from time to time in part by giving written notice of
each election to exercise the option not later than 30 days after the date of
this Agreement. Any exercise notice shall specify the number of Additional
Shares to be purchased by the Underwriters and the date on which such shares are
to be purchased. Each purchase date must be at least one business day after the
written notice is given and may not be earlier than the closing date for the
Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 4 hereof solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. On each day, if any, that Additional Shares are to be purchased
(an "OPTION CLOSING DATE"), each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Additional Shares to be purchased on such Option Closing
Date as the number of Firm Shares set forth in Schedule I hereto opposite the
name of such Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co. on behalf of the
Underwriters, it will not, during the period ending 180 days after the date of
the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, distribute, 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; (ii) file any
registration statement with the Commission relating to the offering of any
shares of common stock or any securities convertible into or exercisable or
exchangeable for common stock (other than a registration statement on Form S-4
or S-8); or (iii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (i), (ii) or
(iii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Shares to be sold hereunder, (B) the issuance by the Company of shares of
Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing, (C) the grant of options or the issuance of shares of common
stock or restricted stock units by the Company to employees, officers,
directors, advisors or consultants of the Company pursuant to restricted stock
grants or benefit plans described in the Prospectus, or (D) the issuance by the
Company of up to an aggregate
5
of five million (5,000,000) shares of Common Stock (or securities convertible
into five million (5,000,000) shares of Common Stock) in connection with (a) any
acquisition of or merger with another company, (b) the acquisition of assets
relating to a business from another person or entity or (c) a strategic
transaction involving another company, provided that in the case of this clause
(D) that each recipient of any shares of Common Stock or securities convertible
into Common Stock so issued shall agree in writing for the benefit of the
Underwriters, in form and substance reasonable satisfactory to Xxxxxx Xxxxxxx &
Co. Incorporated and Xxxxxxx, Sachs & Co. on behalf of the Underwriters, that
all such shares of Common Stock and securities convertible into Common Stock
shall remain subject to restrictions identical to those contained in this first
sentence of this paragraph for the remainder of the period for which the Company
is bound.
Notwithstanding the foregoing, if (1) during the last 17 days of the
180-day restricted period the Company issues a earnings release or material news
or a material event relating to the Company occurs; or (2) prior to the
expiration of the 180-day restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the 180-day period, the restrictions imposed by this agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$[ ] a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of
$[ ] a share under the Public Offering Price, and that any Underwriter
may allow, and such dealers may reallow, a concession, not in excess of
$[ ] a share, to any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on [ ], 2004 or at such
other time on the same or such other date, not later than [ ], 2004, as
shall be designated in writing by you.
Payment for any Additional Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the corresponding
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than [ ], 2004, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE."
The Firm Shares and Additional Shares shall be registered in such names and
in such denominations as you shall request in writing not later than one full
business day prior to the Closing Date or the applicable Option Closing Date, as
the case may be. The Firm Shares and Additional Shares shall be delivered to you
on the Closing Date or an Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than [ ] (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the applicable Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the
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direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied in all material respects with all of the agreements
and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date; provided, that the
officer signing and delivering such certificate may rely upon the best of
his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
("XXXXXX XXXXXXX XXXXXXXX & XXXXXX"), outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus. The Company has the status set
forth opposite the jurisdictions listed on Schedule A thereto.
(ii) Each domestic Subsidiary of the Company has been duly
incorporated and each is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation. Each of the domestic
Subsidiaries has the corporate power and authority to own its properties
and conduct its business; each of the domestic Subsidiaries has the
status set forth opposite the jurisdictions listed on Schedule B
thereto.
(iii) The authorized, issued and outstanding capitalization of the
Company as of [date] was as set forth in the Prospectus under the
"Actual" column under the caption "Capitalization." The Firm Shares
(and, in the case of an Option Closing Date, the Additional Shares)
delivered on the date hereof and all other outstanding shares of the
Class A common stock and Class B common stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable and
conform in all material respects to the description thereof contained in
the Prospectus, and the stockholders of the Company have no preemptive
rights pursuant to the Company's Certificate of Incorporation or Bylaws,
and, to our knowledge, the stockholders of the Company do not have
contractual, written preemptive rights with respect to the Firm Shares
(and, in the case of an Option Closing Date, the Additional Shares).
(iv) Except as disclosed in the Prospectus or otherwise expressly
waived in writing, there are no contracts, agreements or understandings
known to us between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement.
(v) The Company is not, and after giving effect to the sale of the
Shares, will not be, required to register as an "investment company" as
defined in the Investment Company Act.
(vi) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this
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Agreement in connection with the issuance of the Firm Shares (and, in
the case of an Option Closing Date, the Additional Shares) by the
Company, except such as have been obtained and made under the Securities
Act and the Securities Exchange Act of 1934, as amended and except any
consents, approvals, authorization or order of, or filing with, any
state or foreign regulatory authority for which we offer no opinion.
(vii) The execution, delivery and performance of this Agreement and
the issuance and sale of the Firm Shares (and, in the case of an Option
Closing Date, the Additional Shares) does not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, rule or regulation known to us to be customarily
applicable to transactions of this nature; any order of any governmental
agency or body or any court having jurisdiction over the Company; or any
agreement or instrument filed as an exhibit to the Registration
Statement pursuant to Item 601(b) of Regulation S-K to which the Company
is a party or by which the Company is bound, or the Certificate of
Incorporation or Bylaws of the Company.
(viii) The Company has full corporate power and authority to
authorize, issue and sell the Firm Shares (and, in the case of an Option
Closing Date, the Additional Shares) as contemplated by this Agreement.
(ix) The Registration Statement was declared effective under the
Securities Act, and the Prospectus was filed with the Commission
pursuant to Rule 424(b) under the Securities Act on [ ], to
such counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued, and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act.
(x) Such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement or
the Prospectus which are not described in all material respects therein
as required nor of any contracts or documents of a character required to
be filed as exhibits to the Registration Statement which are not filed
as required.
(xi) The information in the Prospectus under the caption
"Description of Capital Stock", "Arrangements between Engenio
Information Technologies and LSI Logic Corporation", "Material United
States Income Tax Consequences to Non-United States Holders" and
"Underwriters" (to the extent of the description of this Agreement), and
in the [ ] through [ ] paragraphs under "Shares
Eligible for Future Sale" and in Part II of the Registration Statement
under Items 14 and 15, in each case insofar as such statements
constitute summaries of legal matters, documents or proceedings referred
to therein, fairly and accurately present, in all material respects, the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein in all
material respects.
(xii) Each of the Intercompany Agreements has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to (1) judicial principles limiting
the availability of specific performance, injunctive relief and other
equitable remedies; (2) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally; and (3) limitations on the
enforceability of certain indemnification provisions of the
Indemnification and Insurance Matters Agreement under applicable laws.
(xiii) The compliance by the Company with the provisions of each of
the Intercompany Agreements will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any agreement or other instrument binding on the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole; nor will such actions result in any
violation of any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any such subsidiary or any of their properties or assets; nor
will such actions result in any violation of any provision of applicable
law (except in each case for such conflicts, breaches, violations and
defaults as would not have a
8
material adverse effect on the Company and its subsidiaries, taken as a
whole); nor will such actions result in any violation of any provision
of the certificate of incorporation or bylaws of the Company.
(xiv) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets is required for the execution and delivery by the
Company of, and compliance by the Company with, the provisions of each
of the Intercompany Agreements, except such as shall have been obtained
or waived or that, if not obtained or waived, would not have a material
adverse effect on the separation of the Company's businesses from those
of Parent as described in the Prospectus or on the ability of the
Company and the Underwriters to consummate the offering contemplated
hereby.
(xv) This Agreement has been duly authorized, executed and
delivered by the Company.
In addition, such counsel shall state that it has participated in
conferences with certain officers and other representatives of the Company,
the Representatives, counsel for the Underwriters and the independent
certified public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and related
matters were discussed. Such counsel shall also state that although it does
not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus
except for those referred to in paragraph (xi) above, no facts have come to
such counsel's attention that have caused it to believe that, (i) as of its
effective date and as of the date hereof, the Registration Statement or any
amendment thereto (other than the financial statements and related
schedules and the financial or statistical data derived from such financial
statements or schedules, as to which such counsel expresses no belief)
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or (ii) as of its issue date or as
of the date hereof, the Prospectus or any amendment or supplement thereto
(other than the financial statements and related schedules and the
financial and statistical data derived from such financial statements or
schedules, as to which such counsel expresses no belief) contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading. In addition, such
counsel shall confirm that each of the Registration Statement and the
Prospectus, and each amendment or supplement thereto (other than the
financial statements and related schedules and the financial and
statistical data derived from such financial statements or schedules, as to
which such counsel expresses no belief) as of their respective effective or
issue dates, complied as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations.
In rendering such opinion, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx may state
that their opinion is limited to the federal laws of the United States of
America and the laws of the State of California and the General Corporation
Law of the State of Delaware. The opinion of Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx set forth above shall be rendered to the Underwriters at the request
of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
dated the Closing Date, covering such matters as you may reasonably
request.
With respect to Section 5(c)(xv) above, Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx and Xxxxxxx Xxxxxxx & Xxxxxxxx LLP may state that their beliefs are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified.
9
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx X. Xxxxxx, Vice President, General Counsel and Corporate
Secretary of Parent, dated the Closing Date, to the effect that:
(i) each of the Intercompany Agreements has been duly authorized,
executed and delivered by Parent and constitutes a valid and binding
obligation of Parent, enforceable against Parent in accordance with its
terms;
(ii) the compliance by Parent with the provisions of each of the
Intercompany Agreements will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any agreement or other instrument binding on Parent or any of its
subsidiaries that is material to Parent and its subsidiaries, taken as a
whole; nor will such actions result in any violation of any order, rule
or regulation known to such counsel of any court or governmental agency
or body having jurisdiction over Parent or any such subsidiary or any of
their properties or assets; nor will such actions result in any
violation of any provision of applicable law (except in each case for
such conflicts, breaches, violations and defaults as would not have a
material adverse effect on Parent and its subsidiaries, taken as a
whole); nor will such actions result in any violation of any provision
of the certificate of incorporation or bylaws of Parent; and
(iii) no consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over Parent or any of its subsidiaries or any of their
properties or assets is required for the execution and delivery by
Parent of, and compliance by Parent with, the provisions of each of the
Intercompany Agreements, except such as shall have been obtained or
waived or that, if not obtained or waived, would not have a material
adverse effect on the separation of the Company's businesses from those
of Parent as described in the Prospectus or on the ability of the
Company and the Underwriters to consummate the offering contemplated
hereby.
The opinion of Xx. Xxxxxx described above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from PricewaterhouseCoopers LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and each of the stockholders, optionholders,
officers and directors of the Company relating to sales and certain other
dispositions of shares of Class A Common Stock or certain other securities
(including Class B Common Stock in the case of the "lock-up" agreement to
be delivered by Parent), delivered to you on or before the date hereof,
shall be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the applicable
Option Closing Date of such documents as you may reasonably request with
respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date
and other matters related to the issuance of such Additional Shares.
6. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish to you, without charge, five (5) signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 6(c) below, as many copies of the Prospectus and
10
any supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the
twelve-month period ending [July 31], 2005 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws
as provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the
National Association of Securities Dealers, Inc., (v) all fees and expenses
in connection with the preparation and filing of the registration statement
on Form 8-A relating to the Class A Common Stock and all costs and expenses
incident to listing the Shares on The New York Stock Exchange and other
national securities exchanges and foreign stock exchanges, (vi) the cost of
printing certificates representing the Shares, (vii) the costs and charges
of any transfer agent, registrar or depositary, (viii) the costs and
expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the
Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel
11
and lodging expenses of the representatives and officers of the Company and
any such consultants, and the cost of any aircraft chartered in connection
with the road show, (ix) the document production charges and expenses
associated with printing this Agreement and (x) all other costs and
expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section, Section 7
entitled "Indemnity and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses, including
fees and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them and any advertising expenses connected
with any offers they may make.
7. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), and each affiliate of any Underwriter
within the meaning of Rule 405 under the Securities Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
or any amendments or supplements thereto, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to Section 7(a) or 7(b), such person (the "INDEMNIFIED PARTY") shall
promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any
12
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of parties indemnified
pursuant to Section 7(a), and by the Company, in the case of parties indemnified
pursuant to Section 7(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (1) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Shares
or (2) if the allocation provided by clause 7(d)(1) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 7(d)(1) above but also the relative
fault of the Company on the one hand and of 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 on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company 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 by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
13
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 7
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter, any person controlling any Underwriter or
any affiliate of any Underwriter or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
8. Termination. The Underwriters may terminate this Agreement by notice
given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such Option Closing Date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase the
Additional Shares to be sold on such Option Closing Date or (ii) purchase not
less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
14
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
ENGENIO INFORMATION TECHNOLOGIES, INC.
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxx Brothers Inc.
Wachovia Capital Markets, LLC
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
--------------------------------------------------------
Name:
Title:
15
SCHEDULE I
NUMBER OF FIRM
SHARES TO BE
UNDERWRITER PURCHASED
----------- --------------
Xxxxxx Xxxxxxx & Co. Incorporated...........................
Xxxxxxx, Sachs & Co. .......................................
Xxxxxx Brothers Inc. .......................................
Wachovia Capital Markets, LLC...............................
Total:....................................................
EXHIBIT A
, 2004
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxx Brothers Inc.
Wachovia Capital Markets, LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
The undersigned understands that you propose to enter into an
Underwriting
Agreement (the "
UNDERWRITING AGREEMENT") with
Engenio Information Technologies,
Inc., a Delaware corporation (the "COMPANY"), providing for the public offering
(the "PUBLIC OFFERING") by the several Underwriters (the "UNDERWRITERS"), of
shares (the "FIRM SHARES") of the Class A Common Stock, $0.001 par value per
share of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxx, Sachs & Co. on behalf of the Underwriters, it will
not, during the period commencing on the date hereof and ending 180 days after
the date of the final prospectus relating to the Public Offering (the
"PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, distribute, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or other capital stock of
the Company or any securities convertible into or exercisable or exchangeable
for Common Stock or (2) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) transactions
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering, (b) transfers of
shares of Common Stock or any security convertible into Common Stock by will or
intestacy, (c) transfers of shares of Common Stock or any security convertible
into Common Stock as a bona fide gift or gifts, (d) if the undersigned is a
corporation, transfers of shares of Common Stock or securities convertible into
Common Stock to an affiliate or affiliates of such corporation, and (e) if the
undersigned is a corporation, distributions or other transfers for no
consideration of shares of Common Stock or any security convertible into Common
Stock to stockholders of the undersigned; provided, that, in the case of any
gift, transfer or distribution pursuant to clause (c), (d) or (e), (i) each
donee, distributee or transferee shall execute and deliver to Xxxxxx Xxxxxxx &
Co. Incorporated and Xxxxxxx, Sachs & Co. a duplicate form of this Lock-Up
Letter and (ii) no filing by any party (donor, transferor, transferee,
distributor or distributee) under Section 16(a) of the Securities Exchange Act
of 1934, as amended, shall be required or shall be made voluntarily in
connection with such transfer or distribution (other than a filing on a Form 5
made after the expiration of 180-day period referred to above). In addition, the
undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx &
Co. Incorporated and Xxxxxxx, Sachs & Co. on behalf of the Underwriters, it will
not, during the period commencing on the date hereof and ending 180 days after
the date of the Prospectus, 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. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
undersigned's shares of Common Stock except in compliance with the foregoing
restrictions.
If:
(1) during the last 17 days of the 180-day restricted period the
Company issues a earnings release or material news or a material event
relating to the Company occurs; or
(2) prior to the expiration of the 180-day restricted period, the
Company announces that it will release earnings results during the 16-day
period beginning on the last day of the 180-day period,
the restrictions imposed by this letter shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an
Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters. In the event the Public
Offering has not been consummated by September 30, 2004, this Lock-Up Letter
shall lapse and become null and void.
Very truly yours,
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(Name)
--------------------------------------
(Address)
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