Ÿ ] Shares Mirion Technologies, Inc. Common Stock UNDERWRITING AGREEMENT
Exhibit
1.1
[ Ÿ ] Shares
Common Stock
__________________, 2010
Credit Suisse Securities (USA) LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
X.X.
Xxxxxx Securities Inc.,
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Mirion Technologies, Inc., a Delaware corporation (“Company”), agrees with
the several Underwriters named in Schedule B hereto (“Underwriters”) to issue and sell to the
several Underwriters 7,800,000 shares of its Common Stock, par value $0.001 per share
(“Securities”), and the stockholders listed on Schedule A hereto (“Selling Stockholders”) agree
severally with the Underwriters to sell to the several Underwriters an aggregate of 3,200,000
outstanding shares of the Securities (such shares of Securities being hereinafter referred to as
the “Firm Securities”). The Selling Stockholders also agree to sell to the Underwriters solely to
cover over allotments, at the option of the Underwriters, an aggregate of not more than 1,650,000
additional shares of the Securities (“Optional Securities”), as set forth below. The Firm
Securities and the Optional Securities are herein collectively called the “Offered Securities”.
2. Representations and Warranties of the Company and the Selling Stockholders.
(a) The Company represents and warrants to, and agrees with, the several Underwriters that:
(i) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-1 (No.
333-161329) covering the registration of the Offered Securities under the Act, including a
related preliminary prospectus or prospectuses. At any particular time, this initial
registration statement, in the form then on file with the Commission, including all
information contained in the registration statement (if any) pursuant to Rule 462(b) and
then deemed to be a part of the initial registration statement, and all 430A Information
and all 430C Information, that in any case has not then been superseded or modified, shall
be referred to as the “Initial Registration Statement”. The Company may also have filed,
or may file with the Commission, a Rule 462(b) registration statement covering the
registration of Offered Securities. At any particular time, this Rule 462(b) registration
statement, in the form then on file with the Commission, including the contents of the
Initial Registration Statement incorporated by reference therein and including all 430A
Information and all 430C Information, that in any case has not then been superseded or
modified, shall be referred to as the “Additional Registration Statement”.
As of the time of execution and delivery of this Agreement, the Initial Registration
Statement has been declared effective under the Act and is not proposed to be amended. Any
Additional Registration Statement has or will become effective upon filing with the Commission
pursuant to
Rule 462(b) and is not proposed to be amended. The Offered Securities all have
been or will be duly registered under the Act pursuant to the Initial Registration
Statement and, if applicable, the Additional Registration Statement.
For purposes of this Agreement:
“430A Information”, with respect to any registration statement, means information
included in a prospectus and retroactively deemed to be a part of such registration
statement pursuant to Rule 430A(b).
“430C Information”, with respect to any registration statement, means information
included in a prospectus then deemed to be a part of such registration statement pursuant
to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means [ Ÿ ]:00 [a/p]m (Eastern time) on the date of this
Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the U.S. Securities and Exchange Commission.
“Effective Time”, with respect to the Initial Registration Statement or, if filed
prior to the execution and delivery of this Agreement, the Additional Registration
Statement, means the date and time as of which such Registration Statement was declared
effective by the Commission or has become effective upon filing pursuant to Rule 462(c). If
an Additional Registration Statement has not been filed prior to the execution and delivery
of this Agreement but the Company has advised the Representatives that it proposes to file
one, “Effective Time” with respect to such Additional Registration Statement means the date
and time as of which such Registration Statement is filed and becomes effective pursuant to
Rule 462(b).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430A Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule C to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Offered Securities in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
The Initial Registration Statement and the Additional Registration Statement are
referred to collectively as the “Registration Statements” and individually as a
“Registration Statement”. A “Registration Statement” with reference to a particular time
means the Initial Registration Statement and any Additional Registration Statement as of
such time. A “Registration Statement” without reference to a time means such Registration
Statement as of its Effective Time. For purposes of the foregoing definitions, 430A
Information with respect to a Registration Statement shall be considered to be included in
such Registration Statement as of the time specified in Rule 430A.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002, as amended
(“Xxxxxxxx-Xxxxx”), the Act, the Exchange Act, the Rules and Regulations, the auditing
principles, rules, standards and practices applicable to auditors of “issuers” (as defined
in
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Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company Accounting Oversight Board
and, as applicable, the rules of the New York Stock Exchange and the NASDAQ Stock Market
(“Exchange Rules”).
“Statutory Prospectus”, with reference to a particular time, means the prospectus
included in a Registration Statement immediately prior to that time, including any 430A
Information or 430C Information with respect to such Registration Statement. For purposes
of the foregoing definition, 430A Information shall be considered to be included in the
Statutory Prospectus as of the actual time that form of prospectus is filed with the
Commission pursuant to Rule 424(b) or Rule 462(c) and not retroactively.
Unless otherwise specified, a reference to a “rule” or “Rule” is to the indicated rule
under the Act.
(ii) Compliance with Securities Act Requirements. (i) (A) At their respective
Effective Times, (B) on the date of this Agreement and (C) on each Closing Date, each of
the Initial Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all material respects to the requirements of the Act and did
not and will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading, and (ii) on its date, at the time of filing of the Final Prospectus pursuant to
Rule 424(b) or (if no such filing is required) at the Effective Time of the Additional
Registration Statement in which the Final Prospectus is included, and on each Closing Date,
the Final Prospectus will conform in all material respects to the requirements of the Act
and the Rules and Regulations and will not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or omissions from any
such document based upon written information furnished to the Company by any Underwriter
through the Representatives expressly for use therein, it being understood and agreed
that the only such information is that described as such in Section 8(c) hereof.
(iii) Ineligible Issuer Status. (i) At the time of the initial filing of the Initial
Registration Statement and (ii) at the date of this Agreement, the Company was not and is
not an “ineligible issuer,” as defined in Rule 405, including (x) the Company or any other
subsidiary in the preceding three years not having been convicted of a felony or
misdemeanor or having been made the subject of a judicial or administrative decree or order
as described in Rule 405 and (y) the Company in the preceding three years not having been
the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a
registration statement be the subject of a proceeding under Section 8 of the Act and not
being the subject of a proceeding under Section 8A of the Act in connection with the
offering of the Offered Securities, all as described in Rule 405.
(iv) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time and the
preliminary prospectus, dated [ Ÿ ] (which is the most recent Statutory Prospectus
distributed to investors generally) and the other information, if any, stated in Schedule C
to this Agreement to be included in the General Disclosure Package, all considered together
(collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from any Statutory Prospectus or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use therein, it
being understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 8(c) hereof.
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(v) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies
Credit Suisse Securities (USA) LLC (“Credit Suisse”) and the other Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such
Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information
then contained in the Registration Statement or as a result of which such Issuer Free
Writing Prospectus, if republished immediately following such event or development, would
include an untrue statement of a material fact or omitted or would 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, (i) the Company has promptly notified or will
promptly notify Credit Suisse and the other Representatives and (ii) the Company has
promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus
to eliminate or correct such conflict, untrue statement or omission.
(vi) Good Standing of the Company. The Company has been duly incorporated and is
existing and 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 General
Disclosure Package; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except where the
absence of such qualification would not result in a material adverse effect on the
condition (financial or otherwise), results of operations, business or properties of the
Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(vii) Subsidiaries. Each subsidiary of the Company listed on Schedule E (each, a
“subsidiary” and together, the “subsidiaries”) has been duly incorporated and is existing
and in good standing under the laws of the jurisdiction of its incorporation, with power
and authority (corporate and other) to own its properties and conduct its business as
described in the General Disclosure Package; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its business
requires such qualification, except where in the absence of such qualification would not
result in a Material Adverse Effect; all of the issued and outstanding capital stock of
each subsidiary of the Company has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances and defects except
(A) as disclosed in the General Disclosure Package, (B) for liens, encumbrances or defects
in place as of the date hereof or to be in place as of the Closing Date or thereafter in
connection with secured debt as disclosed in the General Disclosure Package or (C) as would
not result in a Material Adverse Effect.
(viii) Offered Securities. The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; the authorized equity
capitalization of the Company is as set forth in the General Disclosure Package; all
outstanding shares of capital stock of the Company are, and, when the Offered Securities
have been delivered and paid for in accordance with this Agreement on each Closing Date,
such Offered Securities will have been, validly issued, fully paid and nonassessable, will
conform in all material respects to the information in the General Disclosure Package and
to the description of such Offered Securities contained in the Final Prospectus; the
stockholders of the Company have no preemptive rights with respect to the Offered
Securities; and none of the outstanding shares of capital stock of the Company have been
issued in violation of any preemptive or similar rights of any security holder.
(ix) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection with this offering.
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(x) Registration Rights. Except as disclosed in the General Disclosure Package, 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 Act
with respect to any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act (collectively, “registration
rights”), and any person to whom the Company has granted registration rights has agreed not
to exercise such rights until after the expiration of the Lock-Up Period referred to in
Section 5(k) hereof.
(xi) Listing. The Offered Securities have been approved for listing on the NASDAQ
Global Market, subject to notice of issuance.
(xii) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any person (including any governmental agency or body
or any court) is required to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale of the Offered
Securities, except (i) such as have been obtained, or made, and (ii) such as may be
required under federal or state securities laws or the rules and regulations of the
Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xiii) Title to Property. Except as disclosed in the General Disclosure Package and
except for the liens, encumbrances or defects in place as of the date hereof or to be in
place as of the Closing Date or thereafter in connection with secured debt as disclosed in
the General Disclosure Package, the Company and its subsidiaries have good and marketable
title to all real properties and all other material properties and assets owned by them, in
each case free from liens, charges, encumbrances and defects that would materially affect
the value thereof or materially interfere with the use made or to be made thereof by them.
Except as disclosed in the General Disclosure Package, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable (subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors’ rights generally or by general equitable principles) leases with no
terms or provisions that would materially interfere with the use made or to be made thereof
by them, except where the invalidity or enforceability of any such lease, or any such
interference, would not result in a Material Adverse Effect.
(xiv) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of this Agreement, and the issuance and sale of the Offered
Securities will not result in a breach or violation of any of the terms and provisions of,
or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or
result in the imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, (A) the charter or by-laws of the
Company or any of its subsidiaries, (B) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their properties, or (C) any agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the properties of the
Company or any of its subsidiaries is subject except with respect to clauses (B) and (C),
where such breach, violation or default or imposition of lien, charge or encumbrance would
not result in a Material Adverse Effect; a “Debt Repayment Triggering Event” means any
event or condition that gives, or with the giving of notice or lapse of time would give,
the holder of any note, debenture, or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any
of its subsidiaries.
(xv) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is (a) in violation of its respective charter or by-laws or (b) in default (or
with the giving of notice or lapse of time would be in default) under any existing
obligation, agreement, covenant or
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condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which any of them is a party or by
which any of them is bound or to which any of the properties of any of them is subject,
except such defaults that would not result in a Material Adverse Effect.
(xvi) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(xvii) Possession of Licenses and Permits. The Company and its subsidiaries possess,
and are in compliance with the terms of, all certificates, authorizations, franchises,
licenses and permits (“Licenses”) necessary or material to the conduct of the business now
conducted or proposed in the General Disclosure Package to be conducted by them and have
not received any notice of proceedings relating to the revocation or modification of any
Licenses that, if determined adversely to the Company or any of its subsidiaries, would
result in a Material Adverse Effect.
(xviii) Absence of Labor Dispute. No labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that
could result in a Material Adverse Effect.
(xix) Possession of Intellectual Property. The Company and its subsidiaries own,
possess or can acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “intellectual property rights”) necessary to conduct
the business now operated by them, or presently employed by them, except where the failure
to own or possess or the inability to acquire on reasonable terms any such intellectual
property rights would not result in a Material Adverse Effect, and have not received any
notice of infringement of or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the Company or any of its
subsidiaries, would result in a Material Adverse Effect.
(xx) Environmental Laws. Except as disclosed in the General Disclosure Package,
(a)(i) neither the Company nor any of its subsidiaries is in violation of, or has any
liability that is required to be disclosed on a balance sheet in accordance with GAAP
under, any federal, state, local or non-U.S. statute, law, rule, regulation, ordinance,
code, other requirement or rule of law (including common law), or decision or order of any
domestic or foreign governmental agency, governmental body or court, relating to pollution,
to the use, handling, transportation, treatment, storage, discharge, disposal or release of
Hazardous Substances, to the protection or restoration of the environment or natural
resources (including biota), to health and safety including as such relates to exposure to
Hazardous Substances, and to natural resource damages (collectively, “Environmental Laws”),
(ii) to its knowledge, neither the Company nor any of its subsidiaries owns, occupies, or
operates any real property contaminated with Hazardous Substances, (iii) neither the
Company nor any of its subsidiaries is conducting any investigation, remediation, remedial
action or monitoring of actual or suspected Hazardous Substances in the environment, (iv)
neither the Company nor any of its subsidiaries is liable for any release of Hazardous
Substances, including at any off-site treatment, storage or disposal site, (v) neither the
Company nor any of its subsidiaries is subject to any claim by any governmental agency or
governmental body or person relating to Environmental Laws or Hazardous Substances and (vi)
the Company and its subsidiaries have received and are in compliance with all, and have no
liability that is required to be disclosed on a balance sheet in accordance with GAAP under
any, permits, licenses, authorizations, identification numbers or other approvals required
under applicable Environmental Laws to conduct their respective businesses, except in each case covered by clauses (i) —
(vi) such as would not have a Material Adverse Effect; and (b) there are no pending
investigations or, to the knowledge of the Company, there are no facts or circumstances,
that would reasonably be expected to result in a violation, liability under or a claim
pursuant to any Environmental Law that would result in a Material Adverse Effect. For
purposes of this subsection “Hazardous Substances” means (A) petroleum and petroleum
products, by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and mold, and (B)
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any other chemical, material or
substance defined or regulated as toxic or hazardous or as a pollutant, contaminant or
waste under Environmental Laws.
(xxi) Employee Benefit Plans. In each case except as reflected in the Company’s
financial statements (including the Notes to the Consolidated Financial Statements) or as
would not result in material liability to the Company: (a) To the knowledge of the Company,
no “prohibited transaction” as defined under Section 406 of ERISA or Section 4975 of the
Code and not exempt under ERISA Section 408 and the regulations and published
interpretations thereunder has occurred with respect to any Employee Benefit Plan. At no
time has the Company or any subsidiary maintained, sponsored, participated in, contributed
to or has or had any liability or obligation in respect of any Employee Benefit Plan
subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA, or Section 412 of
the Code or any “multiemployer plan” as defined in Section 3(37) of ERISA or any multiple
employer plan for which the Company or any subsidiary has incurred or could incur liability
under Section 4063 or 4064 of ERISA. No Employee Benefit Plan provides or promises, or at
any time provided or promised, retiree health, life insurance, or other retiree welfare
benefits except as may be required by the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, or similar state law. Each Employee Benefit Plan is and has been operated
in material compliance with its terms and all applicable laws, including but not limited to
ERISA and the Code and, to the knowledge of the Company, no event has occurred (including a
“reportable event” as such term is defined in Section 4043 of ERISA) and no condition
exists that would subject the Company or any subsidiary to any material tax, fine, lien,
penalty or liability imposed by ERISA, the Code or other applicable law. Each Employee
Benefit Plan intended to be qualified under Code Section 401(a) is so qualified and has a
favorable determination or opinion letter from the IRS upon which it can rely, and any such
determination or opinion letter remains in effect and has not been revoked; to the
knowledge of the Company, nothing has occurred since the date of any such determination or
opinion letter that is reasonably likely to adversely affect such qualification. (b) With
respect to each Foreign Benefit Plan, such Foreign Benefit Plan (A) if intended to qualify
for special tax treatment, meets, in all material respects, the requirements for such
treatment, and (B) if required to be funded, is funded to the extent required by applicable
law. (c) The Company does not have any obligations under any collective bargaining
agreement with any union and, to the knowledge of the Company, no organization efforts are
underway with respect to Company employees, except obligations and organizational efforts
that are described in the Registration Statement or that would not result in a Material
Adverse Effect. As used in this Agreement, “Code” means the Internal Revenue Code of 1986,
as amended; “Employee Benefit Plan” means any “employee benefit plan” within the meaning of
Section 3(3) of ERISA, including, without limitation, all stock purchase, stock option,
stock-based severance, employment, change-in-control, medical, disability, fringe benefit,
bonus, incentive, deferred compensation, employee loan and all other employee benefit
plans, agreements, programs, policies or other arrangements, whether or not subject to
ERISA, under which (A) any current or former employee, director or independent contractor
of the Company or its subsidiaries has any present or future right to benefits and which
are contributed to, sponsored by or maintained by the Company or any of its respective
subsidiaries or (B) the Company or any of its subsidiaries has had or has any present or
future obligation or liability; “ERISA” means the Employee Retirement Income Security Act
of 1974, as amended; and “Foreign Benefit Plan” means any Employee Benefit Plan
established, maintained or contributed to outside of the United States of America or which
covers any employee working or residing outside of the United States.
(xxii) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Business — Intellectual Property,” “Certain Relationships
and Related Party Transactions,” “Description of Capital Stock,” “Shares Eligible for
Future Sale,” and “Material U.S. Federal Tax Considerations For Non-U.S. Holders of Common
Stock,” and Items 14 and 15 of the Registration Statement, insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed therein, are
accurate and fair summaries in all material respects of such legal matters, agreements,
documents or proceedings.
(xxiii) Absence of Manipulation. The Company has not taken, directly or indirectly,
any action
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that is designed to or that has constituted or that would reasonably be expected
to cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities.
(xxiv) Statistical and Market-Related Data. Any third-party statistical and
market-related data included in a Registration Statement, a Statutory Prospectus or the
General Disclosure Package are based on or derived from sources that the Company believes
to be reliable.
(xxv) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act. The Company
maintains a system of internal controls, including, but not limited to, disclosure controls
and procedures, internal controls over accounting matters and financial reporting, an
internal audit function and legal and regulatory compliance controls (collectively,
“Internal Controls”) that are sufficient to provide reasonable assurances 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 U.S. General Accepted Accounting Principles and to
maintain accountability for assets, (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. The Internal Controls, upon consummation
of the offering of the Offered Securities, will be overseen by the Audit Committee (the
“Audit Committee”) of the Board of Directors (the “Board”) in accordance with the Exchange
Rules. Except as disclosed in the General Disclosure Package, the Company has not publicly
disclosed or reported to the Audit Committee or the Board a material weakness, material
change in Internal Controls or fraud involving management or other employees who have a
significant role in Internal Controls.
(xxvii) Litigation. Except as disclosed in the General Disclosure Package, there are
no pending actions, suits or proceedings (including any inquiries or investigations by any
court or governmental agency or body, domestic or foreign) against or affecting the
Company, any of its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would result in a Material Adverse
Effect, or would materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or proceedings (including any
inquiries or investigations by any court or governmental agency or body, domestic or
foreign) are, to the Company’s knowledge, threatened.
(xxviii) Financial Statements. The financial statements included in each Registration
Statement and the General Disclosure Package, together with the related schedules and
notes, present fairly in all material respects the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and such financial statements have been prepared in
conformity with generally accepted accounting principles in the United States applied on a
consistent basis; the schedules included in each Registration Statement present fairly in
all material respects the information required to be stated therein.
(xxix) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business or properties of the Company and its subsidiaries, taken as a whole, that is material and
adverse, (ii) except as disclosed in or contemplated by the General Disclosure Package,
there has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock and (iii) except as disclosed in or contemplated
by the General Disclosure Package, there has been no material adverse change in the capital
stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of
the Company and its subsidiaries.
(xxx) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds thereof as
described in the
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General Disclosure Package, will not be required to register as an
“investment company” as defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(xxxi) Compliance with Certain Laws. Each of the Company, its subsidiaries, its
affiliates and, to the knowledge of the Company, any of their respective officers,
directors, agents, or employees has not violated and the Company’s participation in the
offering will not violate, and it has instituted and maintains policies and procedures
designed to ensure continued compliance with, each of the following laws: (a) anti-bribery
laws, including but not limited to, any applicable law, rule, or regulation of any
locality, including but not limited to any law, rule, or regulation promulgated to
implement the OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, signed December 17, 1997, including the U.S. Foreign
Corrupt Practices Act of 1977 or any other law, rule or regulation of similar purpose and
scope, (b) anti-money laundering laws, including but not limited to, applicable federal,
state, international, foreign or other laws, regulations or government guidance regarding
anti-money laundering, including, without limitation, Title 18 U.S. Code section 1956 and
1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering
principals or procedures by an intergovernmental group or organization, such as the
Financial Action Task Force on Money Laundering, of which the United States is a member and
with which designation the United States representative to the group or organization
continues to concur, all as amended, and any Executive order, directive, or regulation
pursuant to the authority of any of the foregoing, or any orders or licenses issued
thereunder or (c) laws and regulations imposing U.S. economic sanctions measures,
including, but not limited to, the International Emergency Economic Powers Act, the Trading
with the Enemy Act, the United Nations Participation Act, and the Syria Accountability and
Lebanese Sovereignty Act, all as amended, and any Executive Order, directive, or regulation
pursuant to the authority of any of the foregoing, including the regulations of the United
States Treasury Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or
any orders or licenses issued thereunder.
(xxxii) Taxes. The Company and its subsidiaries have filed all federal, state, local
and non-U.S. tax returns that are required to be filed or have requested extensions thereof
(except in any case in which the failure so to file would not result in a Material Adverse
Effect); and, except as set forth in the General Disclosure Package, the Company and its
subsidiaries have paid all taxes (including any assessments, fines or penalties) required
to be paid by them, except for any such taxes, assessments, fines or penalties currently
being contested in good faith or as would not result in a Material Adverse Effect.
(xxxiii) Insurance. The Company and its subsidiaries are insured by insurers with
claims paying abilities that it reasonably deems appropriate against such losses and risks
and in such amounts as are prudent and customary in all material respects for the
businesses in which they are engaged; all policies of insurance insuring the Company or any
of its subsidiaries or their respective businesses, assets, employees, officers and
directors are, to the Company’s knowledge, in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or any of its subsidiaries under
any such policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the Company nor any such subsidiary
has been refused any insurance coverage sought or applied for; and
neither the Company nor any such subsidiary 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 result in a Material Adverse Effect, except as set forth in or contemplated in
the General Disclosure Package; and the Company will obtain directors’ and officers’
insurance in such amounts as it deems appropriate for a Company of its size.
(xxxiv) Independent Accountants. Ernst & Young LLP, who certified the financial
statements and supporting schedules, included or incorporated by reference in the
Registration Statement, the
9
General Disclosure Package and the Final Prospectus, are
independent public accountants with respect to the Company as required by the Act and the
Rules and Regulations.
(b) Each Selling Stockholder severally and not jointly represents and warrants to, and
agrees with, the several Underwriters that:
(i) Title to Securities. Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the Offered Securities to
be delivered by such Selling Stockholder on such Closing Date and full right, power and
authority to enter into this Agreement and to sell, assign, transfer and deliver the
Offered Securities to be delivered by such Selling Stockholder on such Closing Date
hereunder; and upon the delivery of and payment for the Offered Securities on each Closing
Date hereunder the several Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such Closing Date.
(ii) Absence of Further Requirements. No consent, approval, authorization or order
of, or filing with, any person (including any governmental agency or body or any court) is
required to be obtained or made by such Selling Stockholder for the consummation of the
transactions contemplated by the Custody Agreement or this Agreement in connection with the
offering and sale of the Offered Securities sold by the Selling Stockholder, except (i)
such as have been obtained and made under the Act, and (ii) such as may be required under
federal or state securities laws.
(iii) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of the Custody Agreement and this Agreement and the consummation
of the transactions therein and herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under, or result
in the imposition of any lien, charge or encumbrance upon any property or assets of such
Selling Stockholder pursuant to, (A) any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over such Selling Stockholder
or any of its properties, (B) any agreement or instrument to which such Selling Stockholder
is a party or by which such Selling Stockholder is bound or to which any of the properties
of such Selling Stockholder is subject, or (C) the charter or by-laws of such Selling
Stockholder that is a corporation or the constituent documents of such Selling Stockholder
that is not a natural person or a corporation, except with respect to clauses (A) and (B),
where such breach, violation or default or imposition of lien, charge or encumbrance would
not reasonably be expected to result in a Material Adverse Effect.
(iv) Custody Agreement. The Power of Attorney and related Custody Agreement with
respect to each Selling Stockholder has been duly authorized, executed and delivered by
such Selling Stockholder and constitute valid and legally binding obligations of such
Selling Stockholder enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles.
(v) Compliance with Securities Act Requirements. (i) (A) At their respective
Effective Times, (B) on the date of this Agreement and (C) on each Closing Date, each of
the Initial Registration Statement and the Additional Registration Statement (if any) did
not and will not contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and (ii) on its
date, at the time of filing of the Final Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Time of the Additional Registration Statement in which
the Final Prospectus is included, and on each Closing Date, the Final Prospectus will not
include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. The preceding sentence shall only
apply to statements in or omissions from any such document based upon written information
furnished to the Company by each Selling Stockholder expressly for use therein, it being
understood and agreed that the only written information furnished to the Company by each
10
Selling Stockholder expressly for use in the Registration Statement, any Statutory
Prospectus, the Final Prospectus (or any amendment or supplement thereto) or any Issuer
Free Writing Prospectus is the information relating to such Selling Stockholder set forth
in the table set forth in the Principal and Selling Stockholder section of any of the
foregoing.
(vi) No Undisclosed Material Information. The sale of the Offered Securities by such
Selling Stockholder pursuant to this Agreement is not prompted by any material information
concerning the Company or any of its subsidiaries that is not set forth the General
Disclosure Package.
(vii) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by such Selling Stockholder.
(viii) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling Stockholder or any
Underwriter for a brokerage commission, finder’s fee or other similar payment in connection
with this offering.
(ix) Absence of Manipulation. Such Selling Stockholder has not taken, directly or
indirectly, any action that is designed to or that has constituted or that would reasonably
be expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Offered Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company and
each Selling Stockholder agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and each Selling
Stockholder, at a purchase price of $[ Ÿ ] per share, that number of Firm Securities
(rounded up or down, as determined by the Representatives in their discretion, in order to avoid
fractions) obtained by multiplying 7,800,000 Firm Securities, in the case of the Company, and the
number of Firm Securities set forth opposite the name of such Selling Stockholder in Schedule A
hereto, in the case of a Selling Stockholder, in each case by a fraction the numerator of which is
the number of Firm Securities set forth opposite the name of such Underwriter in Schedule B hereto
and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by the Selling
Stockholders hereunder have been placed in custody, for delivery under this Agreement, under
Custody Agreements made with Computershare Inc., as custodian (“Custodian”). Each Selling
Stockholder agrees severally and not jointly that the shares represented by the certificates held
in custody for the Selling Stockholders under such Custody Agreements are subject to the interests
of the Underwriters hereunder, that the arrangements made by the Selling Stockholders for such
custody are to that extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of any individual
Selling Stockholder or the occurrence of any other event, or in the case of a trust, by the death
of any trustee or trustees or the termination of such trust. If any individual Selling Stockholder
or any such trustee or trustees should die, or if any other such event should occur, or if any of
such trusts should terminate, before the delivery of the Offered Securities hereunder, certificates
for such Offered Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had not occurred, regardless of whether or not the Custodian shall have received notice
of such death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to or as instructed by the
Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the
Representatives against payment of the purchase price in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to the Representatives drawn to
the order of the Company, at the office of [ Ÿ ], at [ Ÿ ] A.M., New York time, on
, or at such other time not later than seven full business days thereafter as
the Representatives and the Company determine, such time being herein referred to as the “First
Closing Date”. For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First
Closing Date (if later than the otherwise applicable settlement date) shall be
11
the settlement date
for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the
offering. The Firm Securities so to be delivered or evidence of their issuance will be made
available for checking at the above office at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the Company and the Selling
Stockholders from time to time not more than 30 days subsequent to the date of the Final
Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Selling Stockholders agree,
severally and not jointly, to sell to the Underwriters the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the names of such
Selling Stockholders in Schedule A hereto under the caption “Total Number of Optional Securities to
be Sold” and the denominator of which is the total number of Optional Securities (subject to
adjustment by the Representatives to eliminate fractions). Such Optional Securities shall be
purchased from each Selling Stockholder for the account of each Underwriter in the same proportion
as the number of Firm Securities set forth opposite such Underwriter’s name bears to the total
number of Firm Securities (subject to adjustment by the Representatives to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be sold or delivered
unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be exercised from time to time
and to the extent not previously exercised may be surrendered and terminated at any time upon
notice by the Representatives to the the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representatives but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Custodian will deliver the
Optional Securities being purchased on each Optional Closing Date to or as instructed by the
Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the
Representatives, against payment of the purchase price therefore in Federal (same day) funds by
official bank check or checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of [___]. The Optional Securities being purchased on
each Optional Closing Date or evidence of their issuance will be made available for checking at the
above office at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The Company agrees with
the several Underwriters and the Selling Stockholders that:
(a) Additional Filings. Unless filed pursuant to Rule 462(c) as part of the
Additional Registration Statement in accordance with the next sentence, the Company will
file the Final Prospectus, in a form approved by the Representatives, with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, which consent shall not be unreasonably delayed or withheld, subparagraph (4)) of Rule 424(b) not
later than the earlier of (A) the second business day following the execution and delivery
of this Agreement or (B) the fifteenth business day after the Effective Time of the Initial
Registration Statement. The Company will advise the Representatives promptly of any such
filing pursuant to Rule 424(b) and provide satisfactory evidence to the Representatives of
such timely filing. If an Additional Registration Statement is necessary to register a
portion of the Offered Securities under the Act but the Effective Time thereof has not
occurred as of the execution and delivery of this Agreement, the Company will file the
additional registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b) on or prior to
10:00 P.M., New York time, on the date of this Agreement or, if earlier, on or prior to the
time the Final Prospectus is finalized and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by the Representatives.
12
(b) Filing of Amendments: Response to Commission Requests. The Company will promptly
advise the Representatives of any proposal to amend or supplement at any time the Initial
Registration Statement, any Additional Registration Statement or any Statutory Prospectus
and will not effect such amendment or supplementation without the Representatives’ consent;
and the Company will also advise the Representatives promptly of (i) the effectiveness of
any Additional Registration Statement (if its Effective Time is subsequent to the execution
and delivery of this Agreement), (ii) any amendment or supplementation of a Registration
Statement or any Statutory Prospectus, (iii) any request by the Commission or its staff for
any amendment to any Registration Statement, for any supplement to any Statutory Prospectus
or for any additional information, (iv) the institution by the Commission of any stop order
proceedings in respect of a Registration Statement or the threatening of any proceeding for
that purpose, and (v) the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities in any jurisdiction or the
institution or threatening of any proceedings for such purpose. The Company will use its
reasonable best efforts to prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Offered Securities is (or but for the exemption in Rule 172 would be)
required to be delivered under the Act by any Underwriter or dealer, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act, the Company will promptly notify
the Representatives of such event and will promptly prepare and file with the Commission
and furnish, at its own expense, to the Underwriters and the dealers and any other dealers
upon request of the Representatives, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. Neither the
Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
(d) Rule 158. As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning after the Effective
Date of the Initial Registration Statement (or, if later, the Effective Time of the
Additional Registration Statement) which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act. For the purpose of the preceding sentence,
“Availability Date” means the day after the end of the fourth fiscal quarter following the
fiscal quarter that includes such Effective Time on which the Company is required to file
its Form 10-Q for such fiscal quarter except that, if such fourth fiscal quarter is the
last quarter of the Company’s fiscal year, “Availability Date” means the day after the end
of such fourth fiscal quarter on which the Company is required to file its Form 10-K.
(e) Furnishing of Prospectuses. The Company will furnish to the Representatives
copies of each Registration Statement (four of which will be photocopies of such signed Registration
Statement and will include all exhibits), each related Statutory Prospectus, and, so long
as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172
would be) required to be delivered under the Act, the Final Prospectus and all amendments
and supplements to such documents, in each case in such quantities as the Representatives
request. The Final Prospectus shall be so furnished on or prior to 10:00 P.M., New York
time, on the business day following the execution and delivery of this Agreement. All
other such documents shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriters all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such states of the United States as the
Representatives reasonably request and will continue such qualifications in effect so long
as required for the
13
distribution provided, however, that the Company shall not be required
to qualify to do business, consent to service of process or become subject to taxation in
any jurisdiction in which it has not already done so.
(g) Reporting Requirements. During the period of three years hereafter, the Company
will, upon request, furnish to the Representatives and to each of the other Underwriters,
as soon as practicable after the end of each fiscal year, a copy of its annual report to
stockholders for such year (to the extent that such a report is prepared and sent to
stockholders for such year); and the Company will furnish to the Representatives upon
request (i) as soon as available, a copy of each report and any definitive proxy statement
of the Company filed with the Commission under the Exchange Act or mailed to stockholders,
and (ii) from time to time, such other information concerning the Company as the
Representatives may reasonably request. However, so long as the Company is subject to the
reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and files
reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”), it is not required to furnish such reports or statements to the Underwriters.
(h) Payment of Expenses. The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the obligations of the Company
under this Agreement, including but not limited to any filing fees and other expenses
(including fees and disbursements of counsel to the Underwriters) incurred in connection
with qualification of the Offered Securities for sale under the laws of such jurisdictions
as the Representatives designate pursuant to paragraph (f) above and the preparation and
printing of memoranda relating thereto, costs and expenses related to the review by FINRA
of the Offered Securities (including filing fees and the fees and expenses of counsel for
the Underwriters relating to such review), costs and expenses relating to investor
presentations or any “road show” in connection with the offering and sale of the Offered
Securities including, without limitation, any travel expenses of the Company’s officers and
employees and any other expenses of the Company, including the fees and expenses incident
to listing the Offered Securities on the New York Stock Exchange, American Stock Exchange,
NASDAQ Stock Market and other national and foreign exchanges, fees and expenses in
connection with the registration of the Offered Securities under the Exchange Act and
expenses incurred in distributing preliminary prospectuses and the Final Prospectus
(including any amendments and supplements thereto) to the Underwriters and for expenses
incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to
investors or prospective investors.
(i) Use of Proceeds. The Company will use the net proceeds received by it in
connection with this offering in the manner described in the “Use of Proceeds” section of
the General Disclosure Package and, except as disclosed in the General Disclosure Package,
the Company does not intend to use any of the proceeds from the sale of the Offered
Securities hereunder to repay any outstanding debt owed to any affiliate of any
Underwriter.
(j) Absence of Manipulation. The Company and the Selling Stockholders will not take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the
Company to facilitate the sale or resale of the Offered Securities.
(k) Restriction on Sale of Securities by Company. For the period specified below
(the “Lock-Up Period”), the Company will not, directly or indirectly, take any of the
following actions with respect to its Securities or any securities convertible into or
exchangeable or exercisable for any of its Securities (“Lock-Up Securities”): (i) offer,
sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii)
offer, sell, issue, contract to sell, contract to purchase or grant any option, right or
warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other
agreement that transfers, in whole or in part, the economic consequences of ownership of
Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or
decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16
of the Exchange Act or (v) file with the Commission a registration statement under the Act
relating to Lock-Up Securities other than a Form S-8, or publicly disclose the intention to
take any such action, without
14
the prior written consent of the Representatives, except for
(a) grants of employee stock options pursuant to the terms of a plan in effect on the date
hereof or disclosed in the General Disclosure Package or issuances of Lock-Up Securities
pursuant to the exercise of such options or the exercise of any stock options outstanding
on the date hereof or (b) the issuance by the Company of shares representing up to 7.5% of
the outstanding shares of Common Stock of the Company as of the consummation of the
offering of the Offered Securities (and the agreement that provides for such issuance)
issued and issuable in full or partial consideration of any future acquisition or strategic
investment (provided, that, the holders of such shares received in such acquisition or
strategic investment sign and deliver to the Representatives lockup letters in the same
form as delivered to the Representatives pursuant to Section 7(k) hereof). The initial
Lock-Up Period will commence on the date hereof and continue for 180 days after the date
hereof or such earlier date that the Representatives consent to in writing; provided,
however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or material news or a material event relating to the Company
occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces
that it will release earnings results during the 16-day period beginning on the last day of
the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the
expiration of the 18-day period beginning on the date of release of the earnings results or
the occurrence of the materials news or material event, as applicable, unless the
Representatives waive, in writing, such extension. The Company will provide the
Representatives with notice of any announcement described in clause (2) of the preceding
sentence that gives rise to an extension of the Lock-Up Period.
6. Free Writing Prospectuses. The Company and the Selling Stockholders represent and agree
that, unless they obtain the prior consent of the Representatives, and each Underwriter represents
and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has
not made and will not make any offer relating to the Offered Securities that would constitute an
Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as
defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus
consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433,
and has complied and will comply with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including timely Commission filing where required, legending and
record keeping. The Company represents that is has satisfied and agrees that it will satisfy the
conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional
Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties of the Company and each of the Selling Stockholders herein (as
though made on such Closing Date), to the accuracy of the statements of Company officers made in
any certificates delivered pursuant to the provisions hereof, to the performance in all material respects by the Company and each of the Selling Stockholders of
their obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Representatives shall have received letters,
dated, respectively, the date hereof and each Closing Date, of Ernst & Young LLP confirming
that they are a registered public accounting firm and independent public accountants within
the meaning of the Securities Laws and substantially in the form of Schedule D hereto
(except that, in any letter dated a Closing Date, the specified date referred to in
Schedule D hereto shall be a date no more than three days prior to such Closing Date).
(b) Effectiveness of Registration Statement. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Final Prospectus is
finalized and distributed to any Underwriter, or shall have occurred at such later time as
shall have been consented to by the Representatives. The
15
Final Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and Section 5(a)
hereof. Prior to such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and, to the knowledge of the Company or the
Representatives, no proceedings for that purpose shall have been instituted or contemplated
by the Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business or properties of the Company and its subsidiaries taken as a whole
which, in the judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Company by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or
any public announcement that any such organization has under surveillance or review its
rating of any debt securities or preferred stock of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls the effect
of which is such as to make it, in the judgment of the Representatives, impractical to
market or to enforce contracts for the sale of the Offered Securities, whether in the
primary market or in respect of dealings in the secondary market; (iv) any suspension or
material limitation of trading in securities generally on the NASDAQ Global Market, or any
setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of
trading of any securities of the Company on any exchange or in the over-the-counter market;
(vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any
major disruption of settlements of securities, payment or clearance services in the United
States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of the Representatives, the effect
of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such
as to make it impractical or inadvisable to market the Offered Securities or to enforce
contracts for the sale of the Offered Securities.
(d) Opinion of Counsel for the Company. The Representatives shall have received an
opinion, dated such Closing Date, of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company, in
the form attached herein as Exhibit A-1.
(e) Opinion of Counsel for Selling Stockholders. The Representatives shall have
received an opinion, dated such Closing Date, of Weil, Gotshal & Xxxxxx LLP, counsel for
the Selling Stockholders, in the form attached herein as Exhibit A-2.
(f) Opinion of Counsel for Underwriters. The Representatives shall have received from
Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to such matters as the Representatives may require, and the
Selling Stockholders and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(g) Officer’s Certificate. The Representatives shall have received a certificate,
dated such Closing Date, signed by an executive officer of the Company and a principal
financial or accounting officer of the Company in which such officers shall state that in
their capacities as officers of the Company the representations and warranties of the
Company in this Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and, to their knowledge, no proceedings for that
purpose have been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1) and
(3) of
Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the applicable
filing fee in
16
accordance with Rule 111 of the Act; and, subsequent to the respective dates
of the most recent financial statements in the General Disclosure Package, there has been
no material adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or otherwise), results of operations, business,
prospects or properties of the Company and its subsidiaries taken as a whole except as set
forth in the General Disclosure Package or as described in such certificate.
(h) Lock-Up Agreements. On or prior to the date hereof, the Representatives shall
have received lockup letters from each of the executive officers and directors of the
Company and from such other equityholders of the Company as agreed by the Representatives
and the Company.
(i) Custodian Letter. The Custodian will to deliver to the Representatives a letter
stating that they will deliver to each Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by the United States
Treasury Department regulations in lieu thereof) on or before January 31 of the year
following the date of this Agreement.
(j) Form W-9. Each Selling Stockholder shall have delivered to the Custodian, with a
copy to the Representatives, a properly completed and executed IRS Form W-9.
The Selling Stockholders and the Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
8. Indemnification and Contribution. (a) Indemnification of Underwriters by Company. The
Company will indemnify and hold harmless each Underwriter, its partners, members, directors,
officers, employees, agents, affiliates and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each an “Indemnified
Party”), against any and all losses, claims, damages or liabilities, joint or several, to which
such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state
statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any part of any Registration Statement at any
time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will
reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending against any loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party is a party thereto), whether
threatened or commenced, and in connection with the enforcement of this provision with respect to
any of the above as such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(b) Indemnification of Underwriters by Selling Stockholders. Each of the Selling
Stockholders, severally and not jointly, will indemnify and hold harmless each Indemnified Party
against any and all losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state
statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any part of any Registration Statement at any
time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing
Prospectus or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will
reimburse each
17
Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending against any loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the
enforcement of this provision with respect to the above as such expenses are incurred; provided,
however, that the Selling Stockholders shall only be liable pursuant to this Section 8(b) 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 written information furnished to the Company by such Selling Stockholder for
use in the Registration Statement, the Final Prospectus (or any amendment or supplement thereto),
any Issuer Free Writing Prospectus or any General Disclosure Package (it being understood and
agreed that the only written information furnished to the Company by each Selling Stockholder
expressly for use in the Registration Statement, any Statutory Prospectus, the Final Prospectus (or
any amendment or supplement thereto) or any Issuer Free Writing Prospectus is the information
relating to such Selling Stockholder set forth in the table set forth in the Principal and Selling
Stockholder section of any of the foregoing); provided, further, however, that the Selling
Stockholders will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
expressly for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in subsection (c) below.
Notwithstanding anything to the contrary herein, the indemnity provided by each Selling
Stockholder under this subsection (b) shall be limited to an amount equal to the aggregate gross
proceeds received by such Selling Stockholder after deducting underwriting commissions and
discounts, but before deducting expenses, from the sale of Offered Securities sold by such Selling
Stockholder under this Agreement.
(c) Indemnification of Company and Selling Stockholders. Each Underwriter will severally and
not jointly indemnify and hold harmless the Company, each of its directors and each of its officers
who signs a Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and each Selling Stockholder
(each, an “Underwriter Indemnified Party”) against any losses, claims, damages or liabilities to
which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, or
other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any Registration Statement
at any time, any Statutory Prospectus at any time, the Final Prospectus or any Issuer Free Writing
Prospectus or arise out of or are based upon the omission or the alleged omission of a material
fact required to be stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company
by such Underwriter through the Representatives expressly
for use therein, and will reimburse any legal or other expenses reasonably incurred by such
Underwriter Indemnified Party in connection with investigating or defending against any such loss,
claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or
not such Underwriter Indemnified Party is a party thereto), whether threatened or commenced, based
upon any such untrue statement or omission, or any such alleged untrue statement or omission as
such expenses are incurred, it being understood and agreed that the only such information furnished
by any Underwriter consists of (i) the following information in the Final Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures appearing in the
paragraph under the caption “Underwriting” and the information contained in the [ Ÿ ]
paragraphs under the caption “Underwriting”.
(d) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under subsection (a), (b) or
(c) above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a),
(b) or (c) above 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 party shall not relieve it from any liability that it
18
may have
to an indemnified party otherwise than under subsection (a), (b) or (c) above. In case any such
action is brought against any indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified party under this
Section, for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement of
any pending or threatened action 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 (i) includes an unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.
(e) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault 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, the
Selling Stockholders or the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to
in the first sentence of this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (e). Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (e) to contribute are several in proportion to their
respective underwriting obligations and not joint. The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this Section
8(e) 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 which does not take account of the equitable
considerations referred to in this Section 8(e). The liability of each Selling Stockholder under
the contribution agreement contained in this paragraph shall be limited to an amount equal to the
aggregate gross proceeds received by such Selling Stockholder after deducting underwriting
commissions and discounts, but before deducting expenses, from the sale of Offered Securities sold
by such Selling Stockholder under this Agreement.
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on either the First or any Optional Closing Date and the
aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to
19
purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to purchase on such Closing
Date. If any Underwriter or Underwriters so default and the aggregate number of shares of Offered
Securities with respect to which such default or defaults occur exceeds 10% of the total number of
shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to the Representatives, the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Stockholders, except as provided in Section 10 (provided
that if such default occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term “Underwriter” includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Selling Stockholders, of the
Company or its officers and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, any Selling Stockholder, the Company
or any of their respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Offered Securities. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9 hereof or the occurrence of any event specified
in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(c) hereof, the Company and the Selling
Stockholders will, jointly and severally, reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities, and the respective obligations of the Company, the Selling
Stockholders and the Underwriters pursuant to Section 8 hereof shall remain in effect. In
addition, if any Offered Securities have been purchased hereunder, the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed or delivered to the Representatives, c/o Credit Suisse Securities
(USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, with a copy to Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxx Xxxxxx Xxxx, Xxx Xxxx, XX 00000, Attention: Syndicate Department
(with a copy to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxx Xxxxxx Xxxx, Xxx Xxxx, XX
00000, Attention: ECM Legal), and X.X. Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn: Equity Syndicate Desk, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Xxxxxx Ranch 8, 0000 Xxxxxxxxx Xxxxxxx Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: General Counsel, or, if sent to the Selling Stockholders, will be
mailed, delivered or telegraphed and confirmed to them at 0 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, XX 00000, Attention: General Counsel, with a copy (which shall not constitute notice) to
Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxx X. Xxxxx;
provided, however, that any notice to an Underwriter pursuant to Section 8 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective officers and directors and controlling persons referred to in Section
8, and no other person will have any right or obligation hereunder.
13. Representation. The Representatives will act for the several Underwriters in connection
with the transactions contemplated by this Agreement, and any action under this Agreement taken by
the Representatives jointly or by Credit Suisse will be binding upon all the Underwriters.
[___] will act for the Selling Stockholders in connection with such transactions, and
any action
20
under or in respect of this Agreement taken by [___] will be binding upon
all the Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
15. Absence of Fiduciary Relationship. The Company and the Selling Stockholders acknowledge
and agree that:
(a) No Other Relationship. The Representatives have been retained solely to act as
underwriters in connection with the sale of the Offered Securities and that no fiduciary, advisory
or agency relationship between the Company or the Selling Stockholders, on the one hand, and the
Representatives, on the other, has been created in respect of any of the transactions contemplated
by this Agreement or the Final Prospectus, irrespective of whether the Representatives have advised
or is advising the Company or the Selling Stockholders on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by Company and the Selling Stockholders following discussions and
arms-length negotiations with the Representatives and the Company and the Selling Stockholders are
capable of evaluating and understanding and understand and accept the terms, risks and conditions
of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company and the Selling Stockholders have been
advised that the Representatives and their affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company or the Selling Stockholders and
that the Representatives have no obligation to disclose such interests and transactions to the
Company or the Selling Stockholders by virtue of any fiduciary, advisory or agency relationship;
and
(d) Waiver. The Company and the Selling Stockholders waive,to the fullest extent permitted
by law, any claims they may have against the Representatives for breach of fiduciary duty or
alleged breach of fiduciary duty and agree that the Representatives shall have no liability
(whether direct or indirect) to the Company or the Selling Stockholders in respect of such a
fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of
the Company, including stockholders, employees or creditors of the Company.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company and the Selling Stockholders hereby submit to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
The Company and the Selling Stockholders irrevocably and unconditionally waive any objection to the
laying of venue of any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in the
City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such suit or proceeding in any such court has been brought in an inconvenient
forum.
[Remainder of page intentionally left blank]
21
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement among the Selling Stockholders, the Company and the several Underwriters in
accordance with its terms.
| Very truly yours, | ||||||||
| Mirion technologies, Inc. | ||||||||
| By: | ||||||||
| President and Chief Executive Officer | ||||||||
| American Capital, Ltd. | ||||||||
| By: | ||||||||
| Name: | Xxxxxx X. Xxxxx | |||||||
| Title: | Senior Vice President | |||||||
| American Capital Equity I, LLC | ||||||||
| By: American Capital Equity Management, LLC | ||||||||
| Its: Manager | ||||||||
| By: | ||||||||
| Name: | Xxxxxx X. Xxxxx | |||||||
| Title: | Vice President | |||||||
| American Capital Equity II, LP | ||||||||
| By: American Capital Equity Management II, LLC | ||||||||
| Its: General Partner | ||||||||
| By: | ||||||||
| Name: | Xxxxxx X. Xxxxx | |||||||
| Title: | Vice President | |||||||
22
The
foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
confirmed and accepted as of the date first above
written.
Acting
on behalf of themselves and as the
Representatives of the several
Underwriters.
Representatives of the several
Underwriters.
| By
Credit Suisse Securities
(USA) LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By X.X. Xxxxxx Securities Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
23
SCHEDULE A
| Total | Total | Total | |||||||||||
| Number of Firm | Number of Optional | Number of | |||||||||||
| Securities to be | Securities to be | Offered Securities | |||||||||||
| Selling Stockholder | Sold | Sold | to be Sold | ||||||||||
American Capital, Ltd. |
|||||||||||||
American Capital Equity I, LLC |
|||||||||||||
American
Capital Equity II, LP |
|||||||||||||
Total |
|||||||||||||
24
SCHEDULE B
| Total | Total | Total | ||||
| Number of Firm | Number of Option | Number of | ||||
| Securities to be | Securities to be | Offered Securities | ||||
| Underwriter | Purchased | Purchased | to be Purchased | |||
Credit Suisse Securities (USA) LLC |
||||||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
||||||
X.X. Xxxxxx Securities Inc. |
||||||
Xxxxxx X. Xxxxx & Co. |
||||||
Total
|
||||||
25
SCHEDULE C
1. General Use Free Writing
Prospectuses (included in the General Disclosure
Package)
“General
Use Issuer Free Writing Prospectus” includes each of the
following documents: [ ]
2. Other Information Included in the General Disclosure Package
The
following information is also included in the General Disclosure Package: [ ]
26
SCHEDULE D
The Representatives shall have received letters, dated, respectively, the date hereof and the
First Closing Date, of Ernst & Young LLP confirming that they are a registered public accounting
firm and independent public accountants within the meaning of the Securities Laws to the effect
that:
(i) in their opinion the audited consolidated financial statements and
schedules and [summary of earnings] examined by them and included in the
Registration Statements and the General Disclosure Package comply as to form in all
material respects with the applicable accounting requirements of the Securities
Laws;
(ii) with respect to the period(s) covered by the unaudited quarterly
consolidated financial statements included in the Registration Statements and the
General Disclosure Package, they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in XX 000, Xxxxxxx Financial Information, on the
unaudited quarterly consolidated financial statements (including the noted thereto)
of the Company and its consolidated subsidiaries included in the Registration
Statements and the General Disclosure Package, and have made inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters of the Company and its consolidated subsidiaries as to whether such
unaudited quarterly consolidated financial statements comply as to form in all
material respects with the applicable accounting requirements of the Securities Act
and the related published rules and regulations; they have read the latest
unaudited monthly consolidated financial statements (including the notes thereto)
[and the supplementary summary unaudited financial information] of the Company and
its consolidated subsidiaries made available by the Company and the minutes of the
meetings of the stockholders, Board of Directors and committees of the Board of
Directors of the Company; and have made inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the Company
and its consolidated subsidiaries as to whether the unaudited monthly financial
statements are stated on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration Statement and
General Disclosure Package; and on the basis thereof, nothing came to their
attention which caused them to believe that:
[(___) the unaudited financial statements included in the Registration
Statements or the General Disclosure Package do not comply as to form in
all material respects with the applicable accounting requirements of the
Securities Laws, or that any material modifications should be made to the
unaudited quarterly consolidated financial statements for them
to be in conformity with generally accepted accounting principles;]
[(___) with respect to the period subsequent to the date of the most
recent unaudited quarterly consolidated financial statements included in
the General Disclosure Package, at a specified date at the end of the most
recent month, there were any increases in the short-term debt or long-term
debt of the Company and its consolidated subsidiaries, or any change in
stockholders’ equity or the consolidated capital stock of the Company and
its consolidated subsidiaries or any decreases in the net current assets
or net assets of the Company and its consolidated
subsidiaries, as compared with the amounts shown on the latest
balance sheet included in the General Disclosure Package; or for the
period from the day after the date of the most recent unaudited
quarterly consolidated financial statements for such entities included in the
General Disclosure Package to such specified date, there were any
decreases, as
27
compared with the corresponding period in the preceding
year, in consolidated net sales, net operating income, or in the total or
per share amounts of consolidated net income of the Company and its
consolidated subsidiaries, except for such changes, increases or decreases
set forth in such letter which the General Disclosure Package discloses
have occurred or may occur;
(iii) With respect to any period as to which officials of the Company have
advised that no consolidated financial statements as of any date or for any period
subsequent to the specified date referred to in (ii)(___) above are available, they
have made inquiries of certain officials of the Company who have responsibility for
the financial and accounting matters of the Company and its consolidated
subsidiaries as to whether, at a specified date not more than three business days
prior to the date of such letter, there were any increases in the short-term debt
or long-term debt of the Company and its consolidated subsidiaries, or any change
in stockholders’ equity or the consolidated capital stock of the Company and its
consolidated subsidiaries or any decreases in the net current assets or net assets
of the Company and its consolidated subsidiaries, as compared with the amounts
shown on the most recent balance sheet for such entities included in the General
Disclosure Package; or for the period from the day after the date of the most
recent unaudited quarterly financial statements for such entities included in the
General Disclosure Package to such specified date, there were any decreases, as
compared with the corresponding period in the preceding year, in net sales, net
operating income, or in the total or per share amounts of consolidated net income
of the Company and its consolidated subsidiaries and, on the basis of such
inquiries and the review of the minutes described in paragraph (ii) above, nothing
came to their attention which caused them to believe that there was any such
change, increase, or decrease, except for such changes, increases or decreases set
forth in such letter which the General Disclosure Package discloses have occurred
or may occur; and
(iv) they have compared specified dollar amounts (or percentages derived from
such dollar amounts) and other financial and statistical information contained in
the Registration Statements, each Issuer Free Writing Prospectus (other than any
Issuer Free Writing Prospectus that is an “electronic road show,” as defined in
Rule 433(h)) and the General Disclosure Package (in each case to the extent that
such dollar amounts, percentages and other financial and statistical information
are derived from the general accounting records of the Company and its subsidiaries
or are derived directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such dollar amounts,
percentages and other financial and statistical information to be in agreement with
such results.
For purposes of this Schedule, if the Effective Time of the Additional Registration
Statement is subsequent to the execution and delivery of this Agreement, “Registration
Statements” shall mean the Initial Registration Statement and the Additional Registration
Statement as proposed to be filed shortly prior to its Effective Time.
28
SCHEDULE E
| 3. | Mirion Technologies (GDS), Inc. | |
| 4. | Dosimetry Acquisitions (U.S.), LLC | |
| 5. | Mirion Technologies (MGPI), Inc. | |
| 6. | Dosimetry Acquisitions (France) SAS | |
| 7. | Mirion Technologies (Synodys) SA | |
| 8. | Mirion Technologies (MGPI) SA | |
| 9. | Mirion Technologies (XXXXX) Oy | |
| 10. | Mirion Technologies (XXXXX) GmbH | |
| 11. | Mirion Technologies (MGPI H&B) GmbH | |
| 12. | IST Acquisitions, LLC | |
| 13. | Mirion Technologies (IST) Corporation | |
| 14. | Mirion Technologies (IST Canada), Inc. | |
| 15. | Mirion Technologies (IST) Ltd. | |
| 16. | Mirion Technologies (Conax Nuclear), Inc. | |
| 17. | Mirion Technologies (IST) France SAS | |
| 18. | Mirion Technologies (HK) Ltd. | |
| 19. | Mirion Commercial (Beijing) Co., Ltd. |
Exhibit A-1
[Form of Opinion of Counsel for the Company]
1. The Company is validly existing as a corporation in good standing under the laws of the
State of Delaware, and the Company has corporate power and authority to issue the Shares, to enter
into the Underwriting Agreement and to perform its obligations thereunder.
2. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
3. The Shares have been duly authorized and, when issued and delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares is not subject to any statutory preemptive rights.
4. 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.
5. The Company’s authorized equity capitalization is as set forth in the Time of Sale
Prospectus and Prospectus.
6. Except as disclosed in the Prospectus, the execution and delivery by the Company of, and
the performance by the Company of its obligations under, the Underwriting Agreement will not
contravene (i) any provision of the laws of the State of New York or any federal law of the United
States of America that in our experience is normally applicable to general business corporations in
relation to transactions of the type contemplated by the Underwriting Agreement, or the General
Corporation Law of the State of Delaware provided that we express no opinion as to federal or state
securities laws, (ii) the certificate of incorporation or by-laws of the Company, or (iii) that is
an exhibit to the Registration Statement.
7. No consent, approval, authorization, or order of, or qualification with, any governmental
body or agency under the laws of the State of New York or any federal law of the United States of
America that in our experience is normally applicable to general business corporations in relation
to transactions of the type contemplated by the Underwriting Agreement, or the General Corporation
Law of the State of Delaware is required for the execution, delivery and performance by the Company
of its obligations under the Underwriting Agreement, except such as may be required under federal
or state securities or Blue Sky laws as to which we express no opinion.
8. To our knowledge, except as disclosed in the Prospectus or otherwise waived in writing,
there are no contracts, agreements or understandings between the Company and any person granting
such person registration rights, and any person to whom the Company has granted registration rights
has agreed not to exercise such rights until after the expiration of the lock-up period referred to
in Section 5 of the Underwriting Agreement.
9. We have considered the statements included in the Prospectus under the caption “Description
of Capital Stock” insofar as they summarize provisions of the certificate of
incorporation and by-laws of the Company. In our opinion, such statements fairly summarize these
provisions in all material respects.
Exhibit A-2
[Form of Opinion of Counsel for Selling Stockholders]
1. The Agreement has been
duly authorized, validly executed and delivered by each of the Selling Stockholders.
2. The Custody Agreement has
been duly authorized, validly executed and delivered by each of the Selling Stockholders and (assuming the due
authorization, execution and delivery thereof by the other parties thereto) constitutes the valid and legally
binding obligation of each Selling Stockholder enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles, except that rights
to indemnification and contribution thereunder may be limited by federal or state securities laws or public
policy relating thereto.
3. The execution and delivery by each of the Selling Stockholders of each of the Agreement and
the Custody Agreement, and the performance by each of the Selling Stockholders of its obligations
thereunder, will not conflict with, constitute a default under or violate, (a) with respect to
American Capital, any of the terms, conditions or provisions of the certificate of incorporation or
by-laws of American Capital, with respect to ACE I, any of the terms, conditions or provisions of
the limited liability company agreement of ACE I or with respect to ACE II, any of the terms,
conditions or provisions of the limited partnership agreement of ACE II, (b) the laws of the State
of New York, the corporate, limited liability company, or limited partnership laws of the State of
Delaware or federal law or regulation (other than federal and state securities or blue sky laws, as
to which we express no opinion in this paragraph) or (c) any judgment, writ, injunction, decree,
order or ruling of any court or governmental authority binding on any of the Selling Stockholders
of which we are aware.
4. No consent, approval, waiver, license or authorization or other action by or filing with
any New York or Delaware corporate, limited liability company, limited partnership or federal
governmental authority is required in connection with the consummation by any of the Selling
Stockholders of the transactions contemplated by the Agreement or the Custody Agreement, except for
filings and other actions required pursuant to federal and state securities or blue sky laws, as to
which we express no opinion in this paragraph.
5. Assuming that the Underwriters acquire the shares of Common Stock being sold to them by
each of the Selling Stockholders pursuant to the Agreement without notice of an adverse claim
thereto, upon (a)(i) indication by the Depository Trust Company (“DTC”) by book entry that the
shares of Common Stock have been credited to the Underwriters’ securities account at DTC or (ii)
DTC’s acquisition of the shares of Common Stock for the Underwriters and acceptance of the shares
of Common Stock for the Underwriters’ securities account and (b) payment therefor in accordance
with the terms of the Agreement, no action based on an adverse claim may be validly asserted
against the Underwriters’ with respect to their interest in the shares of Common Stock. For
purposes of this Paragraph, the terms “adverse claim”, “notice of an adverse claim” and “securities
account” have the respective meanings ascribed thereto in Sections 8-102(a)(1), 8-105 and 8-501 of
the Uniform Commercial Code in effect in the State of New York (as applicable).
