4,258,042 Shares SYNCHRONOSS TECHNOLOGIES, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
4,258,042 Shares
SYNCHRONOSS TECHNOLOGIES, INC.
Common Stock
November 17, 2010
Credit Suisse Securities (USA) LLC
As Representative of the Several Underwriters,
As Representative of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Dear Sirs:
1. Introductory. Synchronoss Technologies, Inc., a Delaware corporation (“Company”), agrees
with the several Underwriters named in Schedule A hereto (“Underwriters”) to issue and sell to the
several Underwriters 3,775,000 shares of its common stock, $0.0001 par value per share
(“Securities”), and the stockholders listed in Schedule B hereto (“Selling Stockholders”) agree
severally with the Underwriters to sell to the several Underwriters an aggregate of 483,042
outstanding shares of the Securities (such 4,258,042 shares of the Securities being hereinafter
referred to as the “Firm Securities”). The Company also agrees to issue and sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more than 638,706 additional
shares (“Optional Securities”) of its 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-3 (No. 333-164619)
(“initial registration statement”) covering the registration of Offered Securities under
the Act (as defined below) pursuant to Rule 462(b). “Initial Registration Statement” as of
any time means such initial registration statement, in the form then on file with the
Commission (as defined below), including all material then incorporated by reference
therein, all information (if any) contained therein pursuant to Rule 462(b) and then deemed
to be a part thereof pursuant to the General Instructions on Form S-3, and, in each case,
including any amendment thereto, any document incorporated by reference therein and all
430B Information (as defined below) and all 430C Information (as defined below) with
respect thereto and that in any case has not then been superseded or modified. “Additional
Registration Statement” as of any time means such additional registration statement (if
any) in the form then on file with the Commission, including the contents of the Initial
Registration Statement incorporated by reference therein and including any amendment
thereto, any document incorporated by reference therein and all 430B Information and all
430C Information with respect thereto and that in any case has not then been superseded or
modified. Each of the Initial Registration Statement and the Additional Registration
Statement is referred to herein individually as a “Registration Statement” and the Initial
Registration Statement and Additional Registration Statement are referred to herein
collectively as the “Registration Statements.” “Registration Statement” as of any time
means the Initial Registration Statement and the Additional Registration Statement as of
such time. A
“Registration Statement” without reference to a time means such Registration Statement
as of the Effective Time (as defined below). For purposes of the foregoing definitions,
430B Information shall be considered to be included in such Registration Statement as of
the time specified in Rule 430B.
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:
“430B Information” means, with respect to any registration statement, information included in
a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or
retroactively deemed to be a part of such Registration Statement pursuant to Rule 430B(f).
“430C Information” means, with respect to any registration statement, 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 5:00 pm (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the 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.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering price,
other 430B 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.
“Manager Selling Stockholders” means those Selling Stockholders identified on Schedule B under
the heading “Manager Selling Stockholders.”
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002 (“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 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.
“Statutory Prospectus” with reference to a particular time means the prospectus that is
included in a Registration Statement immediately prior to that time, including all 430B Information
and all 430C Information with respect to such Registration Statement. For purposes of the
foregoing definition, 430B Information shall be considered to be included in the Statutory
Prospectus only as of the actual time that form of prospectus (including a prospectus supplement)
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” is to the indicated rule under the Act.
(ii) Compliance with Securities Act Requirements. (A) (i) On the Effective Date of
the Initial Registration Statement, (ii) at the time of each amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (iii) at the Effective Time relating
to the Offered Securities and (iv) on each Closing Date (as defined below), the Initial
Registration Statement conformed and will conform in all material respects to the
requirements of the Act and the Rules and Regulations and did not 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 not misleading and (B) (i) on
its date, (ii) at the time of filing 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 (iii) on each Closing Date, the Final Prospectus
will conform in all 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 Credit Suisse Securities
(USA) LLC (“Credit Suisse”) specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section 8(c) hereof.
(iii) Shelf Registration Statement. The date of this Agreement is not more than three
years subsequent to the initial effective time of the Registration Statement. If,
immediately prior to the third anniversary of the initial effective time of the
Registration Statement, any of the Offered Securities remain unsold by the Underwriters,
the Company will prior to that third anniversary file, if it has not already done so, a new
shelf registration statement relating to the Offered Securities, in a form satisfactory to
Credit Suisse, will use its best efforts to cause such registration statement to be
declared effective within 180 days after that third anniversary, and will take all other
action necessary or appropriate to permit the public offering and sale of the Offered
Securities to continue as contemplated in the expired registration statement relating to
the Offered Securities. References herein to the Registration Statement shall include such
new shelf registration statement.
(iv) Ineligible Issuer Status. (A) At the earliest time after the initial filing of
the Initial Registration Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)) of the Offered Securities and (B) at
the date of this Agreement, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405, including (i) 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 (ii)
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.
(v) General Disclosure Package. As of the Applicable Time, neither (A) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time and the
preliminary prospectus supplement, dated November 12, 2010, including the base prospectus,
dated March 10, 2010, (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 (B) 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 made in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through Credit Suisse specifically 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. The first sentence of this Section
2(a)(vii) does not apply to statements in or omissions from any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Credit Suisse specifically for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists
of the information described in Section 8(c) hereof.
(vi) Incorporated Documents. The documents incorporated by reference in the
Registration Statement, the General Disclosure Package and the Final Prospectus or the
Disclosure Package, when they were filed with the Commission conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as applicable, and
none of such documents contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated by reference in the Registration Statement,
the Prospectus or the Disclosure Package, when such documents are filed with the
Commission, will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
(vii) 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 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 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, (A) the Company has promptly notified or will promptly notify Credit Suisse and
(B) 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.
(viii) Good standing of the Company. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and conduct its
business as described in the Pricing Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction.
(ix) Subsidiaries. Except for those of the Company’s subsidiaries set forth on
Schedule C attached hereto (each a “Significant Subsidiary” and collectively, the
“Significant Subsidiaries”), none of the Company’s subsidiaries is a “significant
subsidiary” as such term is defined in Rule 1-02 of Regulation S-X under the Act, and each
Significant Subsidiary 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 the Final Prospectus; and each Significant 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; all of the issued and outstanding capital stock of
each Significant Subsidiary of the Company has been duly authorized and validly issued and
is fully paid and nonassessable; and the capital stock of each Significant Subsidiary owned
by the Company, directly or through subsidiaries, is owned free from liens, encumbrances
and defects.
(x) Real Property. The Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as are described in
the General Disclosure Package and the Final Prospectus or such as do not materially
affect the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company; and any real property and buildings
held under lease by the Company are held under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company.
(xi) 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 and the
Final Prospectus; 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 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 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.
(xii) 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.
(xiii) Registration Rights. 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”), except (i) as disclosed in the General Disclosure
Package or (ii) to the extent that any such person possessing registration rights has
consented to or waived such registration rights with respect to the offering, issuance and
sale of the Offered Securities by the Company, 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 hereof.
(xiv) Listing. The Offered Securities have been approved for listing on the NASDAQ
Stock Market, subject to notice of issuance.
(xv) 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 offering, issuance and
sale of the Offered Securities by the Company, except such as have been obtained, or made
and such as may be required under state securities laws.
(xvi) 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, the charter or by-laws of the Company
or any of its subsidiaries, 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 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; 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.
(xvii) 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 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, for the purposes of clause (B) such defaults that would not, individually or in the
aggregate, result in a material adverse effect on the condition (financial or otherwise),
results of operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole (“Material Adverse Effect”).
(xviii) Authorization of Agreement. The Company has full right, power and authority
to execute and deliver this Agreement and to perform its obligations hereunder; and all
action required to be taken for the due and proper authorization, execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby has been duly
and validly taken.
(xix) Possession of Licenses and Permits. The Company and its Significant
Subsidiaries possess, and are in compliance with the terms of, all adequate 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 and the
Final Prospectus 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 individually or in the aggregate have a
Material Adverse Effect.
(xx) 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
have a Material Adverse Effect.
(xxi) Auditors Independence. To the Company’s knowledge (after reasonable inquiry),
Ernst & Young, LLP, who have certified the financial statements of the Company, are
independent public accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(xxii) Possession of Intellectual Property. The Company and its subsidiaries own or
has the right to use all trademarks, service marks, trade names, copyrights, trade secrets,
domain names, information, proprietary rights and processes (“Intellectual Property”)
necessary for its business as described in the General Disclosure Package and the Final
Prospectus and, to the Company’s knowledge, necessary in connection with the products and
services under development, without any conflict with or infringement of the interests of
others, except for such conflicts or infringements which, individually or in the aggregate,
have not had and are not reasonably likely to result in, a Material Adverse Effect, and
have taken all reasonable steps necessary to secure interests in such Intellectual Property
and have taken all reasonable steps necessary to secure assignment of such Intellectual
Property from its employees and contractors. The Company has no knowledge of any
infringement by any third party of the trademark, trade name, copyright, license, trade
secret, know-how, intellectual property or other similar rights of the Company. The
Company is not aware of outstanding options, licenses or agreements of any kind relating to
the Intellectual Property of the Company or any of its subsidiaries which are required to
be set forth in the General Disclosure Package, and, the neither the Company nor any of its
subsidiaries is a party to or bound by any options, licenses or agreements with respect to
the Intellectual Property of any other person or entity which are required to be set forth
in the General Disclosure Package; none of the technology employed by the Company or any of
its subsidiaries has been obtained or is being used by the Company or such subsidiary in
violation of any contractual fiduciary obligation binding on the Company, any of its
subsidiaries or any of its directors or executive officers or, to the Company’s knowledge,
any of its employees or otherwise in violation of the rights of any persons. The Company
has not received any written or, to the Company’s knowledge, oral communications alleging
that the Company or any of its subsidiaries has violated, infringed or conflicted with, or,
by conducting its business as set forth in the General Disclosure Package, would violate,
infringe or conflict with any of the Intellectual Property of any other person or entity
other than any such violations, infringements or conflicts which, individually or in the
aggregate, have not had, and are not reasonably likely to result in a Material Adverse
Effect; and the Company has taken and will maintain reasonable measures to prevent the
unauthorized dissemination or publication of their confidential information and, to the
extent contractually required to do so, the confidential information of third parties in
their possession.
(xxiii) Environmental Laws. Except as disclosed in the General Disclosure
Package, neither the Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment or human
exposure to hazardous or toxic substances (collectively, “environmental laws”), owns or
operates any real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the aggregate have a
Material Adverse Effect; and the Company is not aware of any pending investigation which
might lead to such a claim.
(xxiv) Employee Benefit Plans. (A) To the Company’s knowledge, no “prohibited
transaction” as defined under Section 406 of ERISA or Section 4975 of the Code (as defined
below) and not exempt under ERISA Section 408 and the regulations and published
interpretations thereunder has occurred with respect to any Employee Benefit Plan (as
defined below). At no time has the Company or any ERISA Affiliate (as defined below)
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 ERISA Affiliate 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 ERISA Affiliate 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) The Company does not have any
obligations under any collective bargaining agreement with any union and no organization
efforts are underway with respect to Company employees. 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 (i) 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 (ii) 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 “ERISA Affiliate” means any member of the company’s controlled group as defined in Code
Section 414(b), (c), (m) or (o).
(xxv) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Description of the Securities”, “Business”, “Legal
Proceedings”, “Certain Relationships and Related Party Transactions” and “Underwriting”,
insofar as such statements summarize legal matters, agreements, documents or proceedings
discussed
therein, are accurate, complete and fair summaries of such legal matters, agreements,
documents or proceedings and present the information required to be shown.
(xxvi) Absence of Manipulation. The Company 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.
(xxvii) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act. Except as set
forth in the General Disclosure Package, the Company, its subsidiaries and the Company’s
Board of Directors (the “Board”) are in compliance with Xxxxxxxx-Xxxxx and all applicable
Exchange Rules. 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 comply with the Securities Laws and are
sufficient to provide reasonable assurances that (A) transactions are executed in
accordance with management’s general or specific authorizations, (B) 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, (C)
access to assets is permitted only in accordance with management’s general or specific
authorization and (D) 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 are, or upon consummation of the offering of the
Offered Securities will be, overseen by the Audit Committee (the “Audit Committee”) of the
Board in accordance with Exchange Rules. The Company has not publicly disclosed or reported
to the Audit Committee or the Board, and within the next 135 days the Company
does not reasonably expect to publicly disclose or report to the Audit Committee or the
Board, a significant deficiency, material weakness, change in Internal Controls or fraud
involving management or other employees who have a significant role in Internal Controls
(each, an “Internal Control Event”), any violation of, or failure to comply with, the
Securities Laws, or any matter which, if determined adversely, would have, individually or
in the aggregate, a Material Adverse Effect.
(xxviii) Absence of Accounting Issues. A member of the Audit Committee has confirmed
to the General Counsel that, except as set forth in the General Disclosure Package, the
Audit Committee is not reviewing or investigating, and neither the Company’s independent
auditors nor its internal auditors have recommended that the Audit Committee review or
investigate, (A) adding to, deleting, changing the application of, or changing the
Company’s disclosure with respect to, any of the Company’s material accounting policies;
(B) any matter which could result in a restatement of the Company’s financial statements
for any annual or interim period during the current or prior three fiscal years; or (C) any
Internal Control Event.
(xxix) Off-Balance Sheet Arrangements. Except as otherwise disclosed in the General
Disclosure Package, there are no off-balance sheet arrangements (as defined in Regulation
S-K Item 303(a)(4)(ii)) that may have a material current or future effect on the Company’s
financial condition, changes in financial condition, results of operations, liquidity,
capital expenditures or capital resources.
(xxx) Litigation. Except as disclosed in the General Disclosure Package, there are no
legal or governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company, would individually or in the
aggregate have a Material Adverse Effect on the current or future financial position,
stockholders’ equity or results of operations of the Company; and, to the best of the
Company’s knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(xxxi) Insurance. The Company and its Significant Subsidiaries maintains insurance of
the types and in the amounts generally deemed adequate for its business, including, but not
limited to, insurance covering real and personal property owned and leased by the Company
or any of its subsidiaries against theft, damage, destruction, acts of vandalism and all
other risks customarily insured against in the Company’s reasonable judgment, all of which
insurance is in full force and effect.
(xxxii) Material Contracts. There are no contracts, other documents or other
agreements required to be described in the Registration Statement or to be filed as
exhibits to the Registration Statement by the Act or by the Rules and Regulations
thereunder which have not been described or filed as required.
(xxxiii) Financial Statements. The financial statements included in each Registration
Statement and the General Disclosure Package and the Final Prospectus 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 the
generally accepted accounting principles in the United States, applied on a consistent
basis; the schedules, if any, included in each Registration Statement present fairly the
information required to be stated therein; and the assumptions used in preparing the pro
forma financial statements included in the Registration Statement and the General
Disclosure Package and the Final Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts. No other financial statements or
schedules of the Company or any other entity are required to be included in the
Registration Statement, the General Disclosure Package or the Final Prospectus pursuant to
any requirement of the Securities Act or any rules and regulations thereunder, including
Rules 3-05 and Article 11 of Regulation S-X.
(xxxiv) 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 (A) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries, taken as a whole that is material and adverse, (B) 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 (C)
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.
(xxxv) 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 General Disclosure Package and the Final Prospectus, will not be an
“investment company” as defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(xxxvi) Ratings. Neither the Company nor any of its subsidiaries has debt securities
or preferred stock that are rated by any “nationally recognized statistical rating
organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act.
(xxxvii) Related Party Transactions. There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the officers or directors
of the Company or any of their respective family members. The Company has not directly or
indirectly, including through its subsidiaries, extended or maintained credit, arranged for
the extension of credit, or renewed an extension of credit, in the form of a personal loan
to or for any director or executive officer of the Company, other than any extensions of
credit that ceased to be outstanding prior to the initial filing of the Company’s
registration statement on Form S-1 (file no. 333-132080). No transaction has occurred
between or among the Company and any of its officers or directors, stockholders, customers,
suppliers or any affiliate or affiliates of the foregoing that is required to be described
or filed as an exhibit to in the Registration Statement, the General Disclosure Package or
the Final Prospectus and is not so described.
(xxxviii) Antifraud Compliance. Each of the Company, its subsidiaries, its affiliates
and any of their respective officers, directors, supervisors, managers, agents, or
employees, that it has not violated, its 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.
(xxxix) Taxes. The Company and its Significant 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 have,
individually or in the aggregate, 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, individually or in the aggregate, have a Material Adverse Effect.
(xl) FINRA Affiliations. There are no affiliations with the Financial Industry
Regulatory Authority, Inc. among the Company’s officers, directors or, to the knowledge of
the Company, any five percent or greater stockholder of the Company or any beneficial owner
of the Company’s Securities that were acquired during the 180-day period immediately
preceding the date hereof.
(xli) Statistical and Market-Related Data. Any third-party statistical and
market-related data included or incorporated by reference 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 and accurate.
(b) Each Selling Stockholder severally 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, free of any “adverse claim”
(within the meaning of Section 8-105 of the Uniform Commercial Code as in effect in the
State of New York (the “New York UCC”) and full right, power and authority to enter into
this Agreement and the Custody Agreement (“Custody Agreement”) signed by such Selling
Stockholder and American Stock Transfer & Trust Company, LLC, as Custodian (“Custodian”),
relating to the deposit of the Offered Securities to be sold by such Selling Stockholder
and the Power of Attorney (“Power of Attorney”) appointing the attorneys-in-fact (the
“Attorneys-in-Fact”) as such Selling Stockholder’s attorneys-in-fact, 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 to be sold by such Selling Stockholder pursuant to this Agreement, delivery of
such Offered Securities, as directed by the Underwriters, to the Depository Trust Company
(“DTC”) or its agent, registration of such Shares in the name of Cede & Co. (“Cede”) or
such other nominee as may be designated by DTC and the crediting of such Offered Securities
on the books of DTC to securities accounts of the Underwriters (assuming that no such
Underwriter has notice of any “adverse claim” (within the meaning of Section 8-105 of the
New York UCC) to such Shares), (A) under Section 8-501 of the New York UCC, the
Underwriters will acquire a valid and unencumbered security entitlement with respect to
such Offered Securities and (B) no action based on an “adverse claim,” within the meaning
of Section 8-102 of the New York UCC, to such Offered Securities may be asserted against
the Underwriters with respect to such security entitlement.
(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 execution, delivery and
performance of this Agreement, the Custody Agreement or the Power of Attorney by such
Selling Stockholder and the consummation of the transactions contemplated therein or this
Agreement in connection with the offering and sale of the Offered Securities sold by such
Selling Stockholder, except such as have been obtained and made under the Act and such as
may be required under state securities laws.
(iii) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of the Custody Agreement, the Power of Attorney and this Agreement
and the consummation of the transactions contemplated therein and herein 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, 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 their properties or any agreement or instrument to which any 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 the charter or by-laws of any Selling
Stockholder that is a corporation or the constituent documents of any Selling Stockholder
that is not a natural person or a corporation.
(iv) Power of Attorney and Custody Agreement. The Power of Attorney and related
Custody Agreement with respect to such 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. (A) (i) At their respective
Effective Times, (ii) on the date of this Agreement and (iii) on each Closing Date, each of
the Initial Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all respects to the requirements of the Act, and (B) 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 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 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 Credit
Suisse specifically for use therein, it being understood and agreed that the only such
information is that described as such in Section 8(c) hereof. Notwithstanding anything to
the contrary, with respect to each Selling Stockholder, the preceding sentence only applies
to statements in or omissions from any such document based upon written information
concerning such Selling Stockholder furnished to the Company by such Selling Stockholder
specifically for use in the Registration Statement or the Final Prospectus (“Selling
Stockholder Information”).
(vi) General Disclosure Package. As of the Applicable Time, neither (A) the General
Disclosure Package nor (B) 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 (i) with respect to any Selling Stockholder applies only
to the extent that any statements in or omissions from the General Disclosure Package or
any Limited Use Issuer Free Writing Prospectus are based on Selling Stockholder Information
and (ii) does not apply to statements in or omissions from any such document based upon
written information furnished to the Company by any Underwriter through Credit Suisse
specifically for use therein, it being understood and agreed that the only such information
is that described as such in Section 8(c) hereof.
(vii) Issuer Free Writing Prospectuses. All Selling Stockholder Information contained
in any 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 such Selling Stockholder notified or notifies the Company, Credit Suisse
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
Selling Stockholder Information, if republished immediately following such event or
development, conflicted or would conflict with the information then contained in the
Registration Statement or as a result of which such Selling Stockholder Information 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, such Selling Stockholder has promptly notified
or will promptly notify the Company and Credit Suisse and will provide the Company with all
necessary information so as to correct such untrue statement or omission.
(viii) Disclosure of Selling Stockholder Agreements. There are no material agreements
or arrangements relating to the Company or its subsidiaries to which such Selling
Stockholder is a party, which are required to be described in a Registration Statement, the
General Disclosure Package or the Final Prospectus or to be filed as exhibits thereto that
are not so described or filed.
(ix) 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 and the Final Prospectus.
(x) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by, or on behalf of, such Selling Stockholder.
(xi) 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 like payment in connection
with this offering.
(xii) 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.
(c) In addition to the representations and warranties contained in subsection (b), each
Manager Selling Stockholder further severally represents and warrants to, and agrees with, the
several Underwriters that, as of the Applicable Time, neither (i) 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 such document based upon written information furnished to the
Company by any Underwriter through Credit Suisse specifically for use therein, it being understood
and agreed that the only such information is that described as such in Section 8(c) hereof.
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 agrees, 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 $24.2570 per share, that number of Firm Securities (rounded up
or down, as determined by the Representative in its discretion, in order to avoid fractions)
obtained by multiplying 3,775,000 shares of 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 B
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 A hereto
and the denominator of which is the total number of Firm Securities.
Shares in book entry form or certificates in negotiable form representing 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 the Custodian. Each Selling
Stockholder agrees that the shares in book entry form or 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 Credit
Suisse for the accounts of the several Underwriters in a form reasonably acceptable to Credit
Suisse, against payment of the purchase price by the Underwriters in Federal (same day) funds by or
wire transfer to an account at a bank acceptable to Credit Suisse drawn to the order of the Company
in the case of 3,775,000 shares of Firm Securities and the Custodian in the case of 483,042 shares
of Firm Securities, at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, located at 0000 Xxxxxxx Xx.,
Xxxx Xxxx, XX, 00000 at 9:00 A.M., New York time, on November 23, 2010 or at such other time not
later than seven full business days thereafter as Credit Suisse 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 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 of Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from Credit Suisse given to the Company 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 Company agrees to sell to the Underwriters the number of shares of Optional
Securities specified in such notice and the Underwriters agree, severally and not jointly, to
purchase such Optional Securities. Such Optional Securities shall be purchased for the account of
each Underwriter in the same proportion as the number of shares of Firm Securities set forth
opposite such Underwriter’s name bears to the total number of shares of Firm Securities (subject to
adjustment by Credit Suisse in order to avoid 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 Credit Suisse to
the Company.
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 Credit Suisse but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will deliver the Optional
Securities being purchased on each Optional Closing Date to or as instructed by Credit Suisse for
the accounts of the several Underwriters in a form reasonably acceptable to Credit Suisse against
payment of the purchase price therefor in Federal (same day) funds by wire transfer to an account
at a bank acceptable to Credit Suisse drawn to the order of the Company at the above office of
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP. 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 of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP 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. The Company agrees with the several Underwriters 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 Credit Suisse, with the Commission pursuant to and in accordance
with Rule 424(b)(2) (or, if applicable and if consented to Credit Suisse, subparagraph (5)) not
later than the second business day following the earlier of the date it is first used or the
execution and delivery of this Agreement. The Company has complied and will comply with Rule 433.
If an Additional Registration Statement has not become effective 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) at 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 the Underwriters, or will make such filing at such later date as shall
have been consented to by Credit Suisse.
(b) Filing of Amendments; Response to Commission Requests. The Company will promptly advise
Credit Suisse 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 with Credit Suisse’s consent; and the Company will also advise
Credit Suisse promptly of (i) the filing of any such amendment or supplement, (ii) 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, (iii) the institution by the Commission
of any stop order proceedings in respect of the Registration Statement or the threatening of any
proceeding for that purpose, and (iv) 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 Credit Suisse 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 Credit Suisse, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither Credit Suisse’s 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 securityholders an earnings statement
covering a period of at least 12 months beginning after the Effective Time 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 Credit Suisse copies of the
Registration Statement, including all exhibits, any Statutory Prospectus, the Final Prospectus and
all amendments and supplements to such documents, in each case as soon as available and in such
quantities as Credit Suisse reasonably requests. 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 jurisdictions as Credit Suisse designates and will
continue such qualifications in effect so long as required for the distribution; except that in no
event shall the Company be obligated in connection therewith to qualify as a foreign corporation or
to execute a general consent to service of process in any such jurisdiction.
(g) Reporting Requirements. During the period of three years hereafter, the Company will
furnish to Credit Suisse and, upon request, 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; and the Company will furnish to Credit Suisse (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 Credit Suisse 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 is timely
filing 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 and each Selling Stockholder agree with the several
Underwriters that the Company will pay all expenses incident to the performance of the obligations
of the Company and the Selling Stockholders, as the case may be, under this Agreement, including
but not limited to (i) 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 Credit Suisse designates and the preparation and
printing of memoranda relating thereto, (ii) costs and expenses related to the review by the
Financial Industry Regulatory Authority, Inc. of the Offered Securities (including filing fees and
the fees and expenses of counsel for the Underwriters relating to such review), (iii) costs and
expenses incurred by the Company 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 chartering of airplanes, (iv) fees and expenses incident to listing the Offered
Securities on the NASDAQ Stock Market and other national and foreign exchanges, (v) fees,
disbursements and expenses of Company’s counsel and counsel to the Selling Stockholders, (vi) fees
and expenses in connection with the registration of the Offered Securities under the Exchange Act,
(vii) any transfer taxes on the sale by the Selling Stockholders of the Offered Securities to the
Underwriters and (viii) 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 the Final Prospectus 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 the 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, or publicly disclose the intention to take any such action,
without the prior written consent of Credit Suisse except for issuances of Lock-Up Securities
pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise
of warrants or options, in each case outstanding on the date hereof and as disclosed in the
General Disclosure Package, grants of employee stock options pursuant to the terms of a plan in
effect on the date hereof and disclosed in the General Disclosure Package, issuances of Lock-Up
Securities pursuant to the exercise of such options. The initial Lock-Up Period will commence on
the date hereof and continue for 90 days after the date hereof or such earlier date that Credit
Suisse consents 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 Credit Suisse waives, in
writing, such extension. The Company will provide Credit Suisse with notice of any announcement
described in clause (2) of the preceding sentence that gives rise to an extension of the Lock-Up
Period.
(l) Internal Controls. From and after the Closing Date, the Company shall have in place and
maintain a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP 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.
(m) Xxxxxxxx-Xxxxx Act. The Company will comply with all effective applicable provisions of
the Xxxxxxxx-Xxxxx Act.
(n) Investment Company. The Company shall not invest or otherwise use the proceeds earned by
the Company from its sale of the Offered Securities, and the Company and its subsidiaries will
conduct its affairs, in such a manner so as to ensure that neither the Company nor any of its
subsidiaries will be required to register as an “investment company” or an entity “controlled” by
an investment company within the meaning of the Investment Company Act.
(o) Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), the Company will cooperate with the
Underwriters to fulfill their obligations to obtain, verify and record information that identifies
their respective clients, including the Company, which information may include the name and address
of their respective clients, as well as other information that will allow the Underwriters to
properly identify their respective clients.
6. Free Writing Prospectuses. The Company and Selling Stockholders represent and agree that,
unless it obtains the prior consent of Credit Suisse, and each Underwriter represents and agrees
that, unless it obtains the prior consent of the Company and Credit Suisse, 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 Credit Suisse 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.
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 the Selling Stockholders herein (as though made
on
such Closing Date), to the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling Stockholders of their
obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. Credit Suisse 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 Exhibit A hereto (except that, in any
letter dated a Closing Date, the specified date referred to in Exhibit A hereto shall be a
date no more than three days prior to such Closing Date).
(b) Effectiveness of Registration Statement. If the Additional Registration Statement (if
any) has not become effective prior to the execution and delivery of this Agreement, such
effectiveness shall have occurred not later than 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
Underwriters, or shall have occurred at such later time as shall have been consented to by the
Representatives. The 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 no proceedings
for that purpose shall have been instituted or, to the knowledge of the Company, any Selling
Stockholder or Credit Suisse, shall be 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, properties or
prospects of the Company and its subsidiaries taken as a whole which, in the judgment of Credit
Suisse, 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 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 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 Credit
Suisse, 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 New York Stock Exchange
or the Nasdaq Stock 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 any other country where such securities are listed; 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 Credit Suisse, 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 Company. Credit Suisse shall have received an opinion, dated such
Closing Date, of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, counsel for the
Company in a form acceptable to the Representative.
(e) Opinion of Counsel for Selling Stockholders. Credit Suisse shall have received an
opinion, dated such Closing Date, of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP,
special counsel for the Selling Stockholders in a form acceptable to the Representative.
(f) Opinion of Counsel for Underwriters. Credit Suisse shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to such matters as Credit Suisse may require, and the Company and the Selling
Stockholders 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. Credit Suisse shall have received a certificate, dated such
Closing Date, of an executive officer of the Company and a principal financial or accounting
officer of the Company in which each of such officers shall state that: 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 no proceedings for that purpose have been instituted or, to the best
of their knowledge and after reasonable investigation, 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 accordance with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to
the date 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, properties or
prospects of the Company and its subsidiaries taken as a whole except as set forth in the General
Disclosure Package and the Final Prospectus or as described in such certificate.
(h) Selling Shareholders’ Certificates. Credit Suisse shall have received a certificate,
dated such Closing Date, of an attorney-in-fact for each Selling Shareholder in which such
attorney-in-fact, to the best of its knowledge after reasonable investigation, shall state that:
the representations and warranties of such Selling Shareholder in this Agreement are true and
correct; and the Selling Shareholders have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date.
(i) Lock-Up Agreements. On or prior to the date hereof, Credit Suisse shall have received
lock-up letters in the form attached hereto as Exhibit B (“Lock-Up Agreement”) from each of
the individuals and entities listed on Schedule D hereto.
(j) Tax Forms. The Custodian will deliver to Credit Suisse 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.
The Company and the Selling Stockholders will furnish Credit Suisse with such conformed copies
of such opinions, certificates, letters and documents as Credit Suisse reasonably request. Credit
Suisse may in its 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 and the Manager Selling Stockholders, severally, and not jointly, 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 and the Manager 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 Credit Suisse specifically 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; and provided further, that the liability
of each Manager Selling Stockholders pursuant to this subsection shall be limited to an amount
equal to the aggregate gross proceeds after underwriting discounts and commissions, but before
expenses, to such Manager Selling Stockholder from the sale of the Offered Securities sold by such
Manager Selling Stockholder.
(b) Indemnification of Underwriters by Selling Stockholders. 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
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 a Selling Stockholder shall be subject to such liability only to the extent
that the untrue statement or alleged untrue statement or omission or alleged omission is based upon
written information provided by such Selling Stockholder; and provided further that
the liability of each indemnifying Selling Stockholder pursuant to this subsection shall be limited
to an amount equal to the aggregate gross proceeds after underwriting discounts and commissions,
but before expenses, to such Selling Stockholder from the sale of the Offered Securities sold by
such indemnifying Selling Stockholder. For purposes of this Section (b) only, the term Selling
Stockholders shall exclude the Manger Selling Stockholders.
(c) Indemnification of Company and the 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 Credit
Suisse specifically 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 fourth
paragraph under the caption “Underwriting” and discussions of stabilizing, over-allotment and
syndicate covering transactions and penalty bids 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 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 the 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 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 Offered 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 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.
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 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, Credit Suisse 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 Credit Suisse, 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, 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, delivered or telegraphed and confirmed to Credit Suisse at Credit Suisse Securities
(USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to Synchronoss Technologies,
Inc., 000 Xxxxx 000 Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X. Prague,
Senior Vice President and General Counsel, or if sent to the Selling Stockholders or any of them,
will be mailed,
delivered or telegraphed and confirmed to Synchronoss Technologies, Inc., 000 Xxxxx 000 Xxxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X. Prague, Senior Vice President and
General Counsel; 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 successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder.
13. Representation. Credit Suisse will act for the several Underwriters in connection with
the transactions contemplated by this Agreement, and any action under this Agreement taken by
Credit Suisse will be binding upon all the Underwriters. Xxxxxx Prague and Xxxxxxxx Xxxxxx will
act for the Selling Stockholders in connection with such transactions, and any actions under or in
respect of this Agreement taken by the Attorneys-in-Fact, jointly or individually, 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 agrees that:
(a) No Other Relationship. Credit Suisse has 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 Credit Suisse on
the other, has been created in respect of any of the transactions contemplated by this Agreement or
the Final Prospectus, irrespective of whether Credit Suisse has 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 the Company and the Selling Stockholders following discussions and
arms-length negotiations with Credit Suisse 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 Credit Suisse and its 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
Credit Suisse has 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 each of the Selling Stockholders waive, to the fullest extent
permitted by law, any claims they may have against Credit Suisse for breach of fiduciary duty or
alleged breach of fiduciary duty and agree that Credit Suisse 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 hereby submits 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 irrevocably and
unconditionally waives 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.]
If the foregoing is in accordance with the Representative’s 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, Synchronoss Technologies, Inc. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| Selling Stockholders |
||||
| By | /s/ Xxxxxxxx X. Xxxxxx | |||
| Xxxxxxxx X. Xxxxxx, as Attorney-in-Fact for and on behalf of the Selling Stockholders |
||||
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
and accepted as of the date first above written.
| Credit Suisse Securities (USA) LLC |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Managing Director | |||
Acting on behalf of itself and as the Representative
of the several Underwriters.
of the several Underwriters.
