• Shares] LogMeIn, Inc. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
[• Shares]
Common Stock
[Insert date]
Barclays Capital Inc.
X.X. Xxxxxx Securities Inc.,
As Representatives of the several
Underwriters named in Schedule 1 attached hereto,
c/o X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the several
Underwriters named in Schedule 1 attached hereto,
c/o X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
LogMeIn, Inc., a Delaware corporation (the “Company”), and certain stockholders of the Company
named in Schedule 2 attached hereto (the “Selling Stockholders”), propose to sell,
severally and not jointly, an aggregate of • shares (the “Firm Stock”) of the Company’s common
stock, par value $0.01 per share (the “Common Stock”) to the underwriters (the “Underwriters”)
named in Schedule 1 attached to this agreement (this “Agreement”). Of the • shares of the
Firm Stock, • are being sold by the Company and • by the Selling Stockholders. In addition, the
Company and the Selling Stockholders propose to grant to the Underwriters an option to purchase up
to • additional shares of the Common Stock on the terms set forth in Section 3 (the “Option
Stock”). The Firm Stock and the Option Stock, if purchased, are hereinafter collectively called
the “Stock.” This is to confirm the agreement concerning the purchase of the Stock from the
Company and the Selling Stockholders by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The Company represents,
warrants and agrees that:
(a) A registration statement on Form S-1 relating to the Stock has (i) been prepared by
the Company in conformity with the requirements of the Securities Act of 1933, as amended
(the “Securities Act”), and the rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder; (ii) been filed with the
Commission under the Securities Act; and (iii) become effective under the Securities Act.
Copies of such registration statement and any amendment thereto have been delivered by the
Company to you as the representatives (the “Representatives”) of the Underwriters. As used
in this Agreement:
(i) “Applicable Time” means [ ] [a.m.][p.m.] (New York City time) [insert
date];
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(ii) “Effective Date” means the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, was declared
effective by the Commission;
(iii) “Issuer Free Writing Prospectus” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) prepared by (or with its consent,
on behalf of) the Company or used or referred to by the Company in connection with
the offering of the Stock;
(iv) “Preliminary Prospectus” means any preliminary prospectus relating to the
Stock included in such registration statement or filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations;
(v) “Pricing Disclosure Package” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with the information included in
Schedule 4 hereto and each Issuer Free Writing Prospectus filed or used by
the Company on or before the Applicable Time, other than a road show that is an
Issuer Free Writing Prospectus but is not required to be filed under Rule 433 of the
Rules and Regulations.
(vi) “Prospectus” means the final prospectus relating to the Stock, as filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “Registration Statement” means such registration statement, as amended as
of the Effective Date, including any Preliminary Prospectus or the Prospectus and
all exhibits to such registration statement.
Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the
latest Preliminary Prospectus included in the Registration Statement or filed pursuant to
Rule 424(b) of the Rules and Regulations prior to or on the date hereof. Any reference
herein to the term “Registration Statement” shall be deemed to include any abbreviated
registration statement to register additional shares of Common Stock under Rule 462(b) of
the Rules and Regulations (the “Rule 462(b) Registration Statement”). The Commission has
not issued any order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding
or examination for such purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission.
(b) The Company was not at the time of initial filing of the Registration Statement and
at the earliest time thereafter that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) of the Rules and Regulations) of the Stock,
is not on the date hereof and will not be on the applicable Delivery Date an “ineligible
issuer” (as defined in Rule 405 of the Rules and Regulations).
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(c) The Registration Statement conformed and will conform in all material respects on
the Effective Date and on the applicable Delivery Date, and any amendment to the Registration Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and the Rules and
Regulations. The most recent Preliminary Prospectus conformed, and the Prospectus will
conform, in all material respects when filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations and on the applicable Delivery Date to the requirements of the
Securities Act and the Rules and Regulations.
(d) The Registration Statement did not, as of the Effective Date, contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided that no representation
or warranty is made as to information contained in or omitted from the Registration
Statement in reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 10(f).
(e) The Prospectus will not, as of its date and on the applicable Delivery Date,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Prospectus in reliance
upon and in conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 10(f).
(f) The Pricing Disclosure Package did not, as of the Applicable Time, contain an
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to information contained
in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein, which information is specified in
Section 10(f).
(g) Each Issuer Free Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433 of the Rules and Regulations), when
considered together with the Pricing Disclosure Package as of the Applicable Time, did not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(h) Each Issuer Free Writing Prospectus conformed or will conform in all material
respects to the requirements of the Securities Act and the Rules and Regulations on the date
of first use, and the Company has complied with all prospectus delivery and any filing
requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. The Company has not made any offer relating to the Stock that would constitute
an Issuer Free Writing Prospectus without the prior written consent of
the Representatives [, except as set forth on Schedule [ ] hereto].
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The
Company has retained in accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the Rules and Regulations. The
Company has taken all actions necessary so that any “road show” (as defined in Rule 433 of
the Rules and Regulations) in connection with the offering of the Stock will not be required
to be filed pursuant to the Rules and Regulations.
(i) Each of the Company and its subsidiaries (as defined in Section 19) has been duly
organized, is validly existing and in good standing as a corporation or other business
entity under the laws of its jurisdiction of organization and is duly qualified to do
business and in good standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to be so qualified or in good standing
could not, in the aggregate, reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations, stockholders’ equity, properties,
business or prospects of the Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”); each of the Company and its subsidiaries has all requisite corporate power
and authority necessary to own or hold its properties and to conduct the businesses in which
it is currently engaged. The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to
the Registration Statement. None of the subsidiaries of the Company (other than [ ]
(collectively, the “Significant Subsidiaries”)) is a “significant subsidiary” (as defined in
Rule 405 of the Rules and Regulations).
(j) The Company has an authorized capitalization as set forth in each of the most
recent Preliminary Prospectus and the Prospectus, and all of the issued shares of capital
stock of the Company have been duly authorized and validly issued, are fully paid and
non-assessable, conform in all material respects to the description thereof contained in the
most recent Preliminary Prospectus and were issued in compliance with federal and state
securities laws and not in violation of any preemptive right, resale right, right of first
refusal or similar right. All of the Company’s outstanding options, warrants and other
rights to purchase or exchange any securities for shares of the Company’s capital stock have
been duly authorized and validly issued, conform in all material respects to the description
thereof contained in the most recent Preliminary Prospectus and were issued in compliance
with federal and state securities laws. The issued and outstanding shares of capital stock
of each subsidiary of the Company have been duly authorized and validly issued, are fully
paid and non-assessable and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims, except for such liens, encumbrances,
equities or claims as could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(k) The shares of the Stock to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, upon payment and delivery in accordance with this
Agreement, will be validly issued, fully paid and non-assessable,
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will conform in all
material respects to the description thereof contained in the most recent Preliminary
Prospectus, will be issued in compliance with federal and state securities laws and will be
free of statutory and contractual preemptive rights, rights of
first refusal and similar rights, except for such rights waived by certain Company
stockholders in connection with the sale of shares of Stock to the Underwriters. The shares
of Stock to be sold by the Selling Stockholders will be sold in compliance with federal and
state securities laws.
(l) The Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(m) The execution, delivery and performance of this Agreement by the Company, the
consummation of the transactions contemplated hereby and the application of the proceeds
from the sale of the Stock as described under “Use of Proceeds” in the most recent
Preliminary Prospectus will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, impose any lien, charge or encumbrance upon any property or
assets of the Company and its subsidiaries, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, license or other 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 property or assets of the Company or any of its
subsidiaries is subject; (ii) result in any violation of the provisions of the charter or
by-laws (or similar organizational documents) of the Company or any of its subsidiaries; or
(iii) result in any violation of any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets, except in the case of (i) and (iii), to
the extent any such conflict, breach, violation or default could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(n) No consent, approval, authorization or order of, or filing or registration with,
any court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets is required for the execution, delivery
and performance of this Agreement by the Company, the consummation of the transactions
contemplated hereby, and the application of the proceeds from the sale of the Stock as
described under “Use of Proceeds” in the most recent Preliminary Prospectus, except for the
(i) registration of the Stock under the Securities Act, (ii) such consents, approvals,
authorizations, registrations or qualifications as have been obtained as of the date hereof
and (iii) such consents, approvals, authorizations, registrations or qualifications as may
be required under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
applicable state or foreign securities laws in connection with the purchase and sale of the
Stock by the Underwriters.
(o) Except as described in the most recent Preliminary Prospectus, there are no
contracts, agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
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securities registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company under the
Securities Act. All rights of the Company’s stockholders (to the extent such stockholders
held any such rights) to participate in the offering contemplated by this Agreement have
been waived as of the date hereof.
(p) The Company has not sold or issued any securities that would be integrated with the
offering of the Stock contemplated by this Agreement pursuant to the Securities Act, the
Rules and Regulations or the interpretations thereof by the Commission.
(q) Except as described in the most recent Preliminary Prospectus, neither the Company
nor any of its subsidiaries has sustained, since the date of the latest audited financial
statements included in the most recent Preliminary Prospectus, any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree, and
since such date, there has not been any change in the capital stock (other than the issuance
of Stock upon the exercise of outstanding stock options disclosed in the most recent
Preliminary Prospectus) or long-term debt of the Company or any of its subsidiaries or any
adverse change, or any development involving a prospective adverse change, in or affecting
the condition (financial or otherwise), results of operations, stockholders’ equity,
properties, management, business or prospects of the Company and its subsidiaries taken as a
whole, in each case except as could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(r) Since the date as of which information is given in the most recent Preliminary
Prospectus and except as described in the most recent Preliminary Prospectus, the Company
has not (i) incurred any material liability or obligation, direct or contingent, other than
liabilities and obligations that were incurred in the ordinary course of business, (ii)
entered into any material transaction not in the ordinary course of business or (iii)
declared or paid any dividend on its capital stock.
(s) The historical financial statements (including the related notes and supporting
schedules) included in the most recent Preliminary Prospectus comply as to form in all
material respects with the requirements of Regulation S-X under the Securities Act and
present fairly in all material respects the financial condition, results of operations and
cash flows of the entities purported to be shown thereby at the dates and for the periods
indicated and have been prepared in conformity with accounting principles generally accepted
in the United States applied on a consistent basis throughout the periods involved.
(t) Deloitte & Touche LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries, whose report appears in the most recent
Preliminary Prospectus and who have delivered the initial letter referred to in Section 9(g)
hereof, are independent public accountants as required by the Securities Act and the Rules
and Regulations.
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(u) The Company and each of its subsidiaries own no real property and have good and
marketable title to all material tangible personal property owned by them, in each case free
and clear of all liens, encumbrances and defects, except such as are described in the most
recent Preliminary 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 its subsidiaries; and all material tangible assets held under lease by
the Company and its subsidiaries are held by them under valid, subsisting and enforceable
leases, with such exceptions as do not materially interfere with the use made and proposed
to be made of such assets by the Company and its subsidiaries.
(v) The Company and each of its subsidiaries carry, or are covered by, insurance from
insurers of recognized financial responsibility in such amounts and covering such risks as
is adequate for the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in similar
industries.
(w) The statistical and market-related data included under the captions “Prospectus
Summary,” “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and “Business” in the most recent Preliminary Prospectus and the consolidated
financial statements of the Company and its subsidiaries included in the most recent
Preliminary Prospectus are based on or derived from sources that the Company believes to be
reliable and accurate in all material respects.
(x) Neither the Company nor any subsidiary is, and as of the applicable Delivery Date
and, after giving effect to the offer and sale of the Stock and the application of the
proceeds therefrom as described under “Use of Proceeds” in the most recent Preliminary
Prospectus and the Prospectus, none of them will be, (i) an “investment company” within the
meaning of such term under the Investment Company Act of 1940, as amended (the “Investment
Company Act”), and the rules and regulations of the Commission thereunder or (ii) a
“business development company” (as defined in Section 2(a)(48) of the Investment Company
Act).
(y) Except as described in the most recent Preliminary Prospectus, 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 or assets of the Company or any of its subsidiaries is the
subject that could, in the aggregate, reasonably be expected to have a Material Adverse
Effect or could, in the aggregate, reasonably be expected to have a material adverse effect
on the performance of this Agreement or the consummation of the transactions contemplated
hereby; and to the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or others.
(z) No labor disturbance by the employees of the Company or its subsidiaries exists or,
to the knowledge of the Company, is imminent that could reasonably be expected to have a
Material Adverse Effect.
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(aa) (i) Each “employee benefit plan” (within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) for which the Company
or any member of its “Controlled Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended (the “Code”)) would have any liability (each a “Plan”) has been
maintained in compliance with its terms and with the requirements of all applicable
statutes, rules and regulations including ERISA and the Code; (ii) with respect to each Plan
subject to Title IV of ERISA (a) no “reportable event” (within the meaning of Section
4043(c) of ERISA) has occurred or is reasonably expected to occur, (b) no “accumulated
funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Code),
whether or not waived, has occurred or is reasonably expected to occur, (c) the fair market
value of the assets under each Plan exceeds the present value of all benefits accrued under
such Plan (determined based on those assumptions used to fund such Plan) and (d) neither the
Company or any member of its Controlled Group has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA (other than contributions to the Plan or premiums to
the PBGC in the ordinary course and without default) in respect of a Plan (including a
“multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and (iii) each
Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or by failure to act, which would cause the loss of
such qualification, except in the case of clauses (i), (ii) and (iii) as would not
reasonably be expected to have a Material Adverse Effect.
(bb) The Company and each of its subsidiaries have filed all federal, state, local and
foreign income and franchise tax returns required to be filed through the date hereof,
subject to permitted extensions, and have paid all taxes due thereon, except assessments for
which appeals have been taken or which adequate reserves have been taken, and no tax
deficiency has been determined adversely to the Company or any of its subsidiaries, nor does
the Company have any knowledge of any tax deficiencies that could, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(cc) [intentionally omitted.]
(dd) Neither the Company nor any of its subsidiaries (i) is in violation of its charter
or by-laws (or similar organizational documents), (ii) is in default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, license or other agreement or instrument to which
it is a party or by which it is bound or to which any of its properties or assets is subject
or (iii) is in violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over it or its property or assets or has
failed to obtain any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the conduct of its
business, except in the case of clauses (ii) and (iii), to the extent any such conflict,
breach, violation or default could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
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(ee) The Company maintains and has maintained a system of internal accounting controls
for it and its subsidiaries sufficient to provide reasonable assurance that (A) transactions
are executed in accordance with management’s general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of the Company’s financial
statements in conformity with accounting principles generally accepted in the United States
and to maintain accountability for its assets, (C) access to the Company’s assets is
permitted only in accordance with management’s general or specific authorization and (D) the
recorded accountability for the Company’s assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(ff) (i) The Company has established and maintains disclosure controls and procedures
(as such term is defined in Rule 13a-15 under the Exchange Act), (ii) such disclosure
controls and procedures are designed to ensure that the information required to be disclosed
by the Company and its subsidiaries in the reports they will file or submit under the
Exchange Act is accumulated and communicated to management of the Company, including its
principal executive officer and principal financial officer, as appropriate, to allow timely
decisions regarding required disclosure to be made and (iii) such disclosure controls and
procedures are effective in all material respects to perform the functions for which they
were established.
(gg) Since the date of the most recent balance sheet of the Company and its
consolidated subsidiaries reviewed or audited by Deloitte & Touche LLP, (i) the Company has
not been advised of (A) any significant deficiencies in the design or operation of internal
controls that could adversely affect the ability of the Company and each of its subsidiaries
to record, process, summarize and report financial data, or any material weaknesses in
internal controls and (B) any fraud, whether or not material, that involves management or
other employees who have a significant role in the internal controls of the Company and each
of its subsidiaries, and (ii) since that date, there have been no significant changes in
internal controls or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies and material
weaknesses.
(hh) The Company and each of its subsidiaries have such permits, licenses, franchises,
certificates of need and other approvals or authorizations of governmental or regulatory
authorities (“Permits”) as are necessary under applicable law to own their properties and
conduct their businesses in the manner described in the most recent Preliminary Prospectus,
except for any of the foregoing that could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect; each of the Company and its subsidiaries has fulfilled and
performed all of its obligations with respect to the Permits, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or termination thereof or
results in any other impairment of the rights of the holder or any such Permits, except for
any of the foregoing that could not reasonably be expected to have a Material Adverse
Effect.
(ii) Except as described in the most recent Preliminary Prospectus, the Company and
each of its subsidiaries own or possess adequate rights to use all material
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patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses, know-how, software, systems
and technology (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) necessary for the conduct of their
respective businesses as now conducted and have not received notice that the conduct of
their respective businesses as currently contemplated to be conducted will conflict with,
and have not received any notice of any claim of conflict with, any such rights of others.
(jj) Except as described in the most recent Preliminary Prospectus, (A) there are no
proceedings that are pending, or known to be contemplated, against the Company or any of its
subsidiaries under any laws, regulations, ordinances, rules, orders, judgments, decrees,
permits or other legal requirements of any governmental authority, including without
limitation any international, national, state, provincial, regional, or local authority,
relating to the protection of human health or safety, the environment, or natural resources,
or to hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”) in which a governmental authority is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be
imposed, (B) the Company and its subsidiaries are not aware of any issues regarding
compliance with Environmental Laws, or liabilities or other obligations under Environmental
Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that
could reasonably be expected to have a material effect on the capital expenditures, earnings
or competitive position of the Company and its subsidiaries, and (C) none of the Company
and its subsidiaries anticipates material capital expenditures relating to Environmental
Laws.
(kk) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary’s property or assets to the Company
or any other subsidiary of the Company, except as described in the most recent Preliminary
Prospectus.
(ll) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(mm) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
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thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened, except, in each case, as would not reasonably be expected to have a Material
Adverse Effect.
(nn) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(oo) The Company has not distributed and, prior to the later to occur of any Delivery
Date and completion of the distribution of the Stock, will not distribute any offering
material in connection with the offering and sale of the Stock other than any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus to which the
Representatives have consented in accordance with Section 1(h) or 6(a)(vi).
(pp) The Company has not taken and will not take, directly or indirectly, any action
designed to or that has constituted or that could 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 shares of the Stock.
(qq) The Stock has been approved for inclusion, subject to official notice of issuance
and evidence of satisfactory distribution, in The NASDAQ Global Market.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Stock shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Representations, Warranties and Agreements of the Selling Stockholders.
(a) Each Selling Stockholder, severally and not jointly, represents, warrants
and agrees that:
(i) Neither the Selling Stockholder nor any person acting on behalf of the
Selling Stockholder (other than, if applicable, the Company and the Underwriters) has
used or referred to any “free writing prospectus” (as defined in Rule 405), relating
to the Stock;
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(ii) The Selling Stockholder has, and immediately prior to any Delivery Date on
which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will
have, good and valid title to the shares of Stock to be sold by the Selling
Stockholder hereunder on such Delivery Date, free and clear of all liens,
encumbrances, equities or claims, except for any liens, encumbrances, equities or
claims arising under the Custody Agreement.
(iii) The Stock to be sold by the Selling Stockholder hereunder, which is
represented by the certificates held in custody for the Selling Stockholder, is
subject to the interest of the Underwriters thereunder, the arrangements made by the
Selling Stockholder for such custody are to that extent irrevocable except pursuant to
a termination of this Agreement or as otherwise set forth in the Custody Agreement,
and the obligations of the Selling Stockholder hereunder shall not be terminated by
any act of the Selling Stockholder, by operation of law, by the death or incapacity of
any individual Selling Stockholder or, in the case of a trust, by the death or
incapacity of any executor or trustee or the termination of such trust, or the
occurrence of any other event.
(iv) Upon delivery of the Stock to be sold by the Selling Stockholder, payment
therefor pursuant hereto and assuming no Underwriter has notice of any “adverse claim”
(within the meaning of Section 8-102 of the Uniform Commercial Code (the “UCC”))
(i) the Underwriters shall be “protected purchasers” of such Stock within the meaning
of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters
will acquire good and valid title and a valid security entitlement in respect of such
Stock and (iii) no action based on any “adverse claim,” within the meaning of Section
8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect
to such security entitlement.
(v) The Selling Stockholder has placed in custody under a custody agreement (the
“Custody Agreement” and, together with all other similar agreements executed by the
other Selling Stockholders, the “Custody Agreements”) with the Company, as custodian
(the “Custodian”), for delivery under this Agreement, certificates in negotiable form
(with signature guaranteed by a participant in the Securities Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature Program or the
Stock Exchange Medallion Program) representing the shares of Stock to be sold by the
Selling Stockholder hereunder.
(vi) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney
(the “Power of Attorney” and, together with all other similar agreements executed by the other
Selling Stockholders, the “Powers of Attorney”) appointing Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxxxxx as attorneys-in-fact, with full power of substitution, and with full authority
(exercisable by any one or more of them) to execute and deliver this Agreement and to take such
other action as may be necessary or desirable to carry out the
13
provisions hereof on behalf of the Selling Stockholder in accordance with the
provisions of the Power of Attorney.
(vii) The Selling Stockholder has full right, power and authority, corporate or
otherwise, to enter into this Agreement, the Custody Agreement and the Power of
Attorney.
(viii) This Agreement has been duly and validly authorized, executed and
delivered by or on behalf of the Selling Stockholder.
(ix) The Power of Attorney and the Custody Agreement have been duly and validly
authorized, executed and delivered by or on behalf of the Selling Stockholder and
constitute valid and legally binding obligations of the Selling Stockholder
enforceable against the Selling Stockholder in accordance with their terms, subject to
(i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights
generally, (ii) general equitable principles (whether considered in a proceeding in
equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(x) The execution, delivery and performance of this Agreement, the Custody
Agreement and the Power of Attorney by the Selling Stockholder and the consummation by
the Selling Stockholder of the transactions contemplated hereby and thereby do not and
will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, license or other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or to which any of
the property or assets of the Selling Stockholder is subject, (ii) result in any
violation of the provisions of the charter or by-laws (or similar organizational
documents) of the Selling Stockholder, (iii) result in any violation of the provisions
of the deed of trust (or similar organizational documents) of the Selling Stockholder
or (iv) result in any violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Selling Stockholder
or the property or assets of the Selling Stockholder.
(xi) No consent, approval, authorization or order of, or filing or registration
with, any court or governmental agency or body having jurisdiction over the Selling
Stockholder or the property or assets of the Selling Stockholder is required for the
execution, delivery and performance of this Agreement, the Custody Agreement or the
Power of Attorney by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby, except for the
registration of the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the Exchange
Act and applicable state or foreign securities laws in connection with the purchase
and sale of the Stock by the Underwriters.
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(xii) The Registration Statement did not, as of the Effective Date, contain an
untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided
that the representation in this paragraph is limited to statements or omissions made
in reliance upon and in conformity with information relating to such Selling
Stockholder furnished to the Company in writing by such Selling Stockholder expressly
for use in the Registration Statement.
(xiii) The Prospectus will not, as of its date and on the applicable Delivery
Date, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that
the representation in this paragraph is limited to statements or omissions made in
reliance upon and in conformity with information relating to such Selling Stockholder
furnished to the Company in writing by such Selling Stockholder expressly for use in
the Prospectus.
(xiv) The Pricing Disclosure Package did not, as of the Applicable Time, contain
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
representation in this paragraph is limited to statements or omissions made in
reliance upon and in conformity with information relating to such Selling Stockholder
furnished to the Company in writing by such Selling Stockholder expressly for use in
the Pricing Disclosure Package.
(xv) Each Issuer Free Writing Prospectus (including, without limitation, any road
show that is a free writing prospectus under Rule 433), when considered together with
the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue
statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the representation in this
paragraph is limited to statements or omissions made in reliance upon and in
conformity with information relating to such Selling Stockholder furnished to the
Company in writing by such Selling Stockholder expressly for use in the such Issuer
Free Writing Prospectus.
(xvi) The Selling Stockholder has not taken and will not take, directly or
indirectly, any action that is designed to or that has constituted or that could
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 shares of
the Stock.
(b) In addition to the representations, warranties and agreements in Section
2(a) above, the stockholder of the Company named in Schedule 5 hereto (the
“Executive Selling Stockholder”) represents, warrants and agrees that:
15
(i) The Executive Selling Stockholder has reviewed this Agreement, the
Registration Statement and the Pricing Disclosure Package and has no reason
to believe (i) the Registration Statement, as of its effective date,
contained an 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 not misleading, or (ii) the Pricing Disclosure Package,
as of the Applicable Time, contained an untrue statement of a material fact
or omitted 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; provided that no representation or warranty is made as
to information contained in or omitted from the Registration Statement or
Pricing Disclosure Package in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 10(f).
Any certificate signed by any Selling Stockholder and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Stock shall be deemed a
representation and warranty by such Selling Stockholder, as to matters covered thereby, to each
Underwriter.
3. Purchase of the Stock by the Underwriters. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this Agreement, the Company
agrees to sell • shares of the Firm Stock and each Selling Stockholder agrees to sell the number of
shares of the Firm Stock set forth opposite its name in Schedule 2 hereto, severally and
not jointly, to the several Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase the number of shares of the Firm Stock set forth opposite that Underwriter’s
name in Schedule 1 hereto. Each Underwriter shall be obligated to purchase from the
Company, and from each Selling Stockholder, that number of shares of the Firm Stock that represents
the same proportion of the number of shares of the Firm Stock to be sold by the Company and by each
Selling Stockholder as the number of shares of the Firm Stock set forth opposite the name of such
Underwriter in Schedule 1 represents of the total number of shares of the Firm Stock to be
purchased by all of the Underwriters pursuant to this Agreement. The respective purchase
obligations of the Underwriters with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option to purchase up to • additional
shares of the Option Stock and each Selling Stockholder grants to the Underwriters an option to
purchase up to the number of shares of Option Stock set forth opposite such Selling Stockholder’s
name in Schedule 2 hereto, severally and not jointly. Such options are exercisable in the
event that the Underwriters sell more shares of Common Stock than the number of shares of the Firm
Stock in the offering and as set forth in Section 5 hereof. Any such election to purchase Option
Stock shall be made in proportion to the maximum number of shares of Option Stock to be sold by the
Company and each Selling Stockholder as set forth in Schedule 2 hereto. Each Underwriter
agrees, severally and not jointly, to purchase the number of shares of the
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Option Stock (subject to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to the total number of shares of the
Option Stock to be sold on such Delivery Date as the number of shares of the Firm Stock set forth
in Schedule 1 hereto opposite the name of such Underwriter bears to the total number of
shares of the Firm Stock.
The price of both the Firm Stock and any Option Stock purchased by the Underwriters shall be
$• per share.
The Company and the Selling Stockholders shall not be obligated to deliver any shares of the
Firm Stock or Option Stock to be delivered on the applicable Delivery Date, except upon payment for
all such Stock to be purchased on such Delivery Date as provided herein.
4. Offering of Stock by the Underwriters. Upon authorization by the Representatives of the
release of the Firm Stock, the several Underwriters propose to offer the Firm Stock for sale upon
the terms and conditions to be set forth in the Prospectus.
5. Delivery of and Payment for the Stock. Delivery of and payment for the Firm Stock shall be
made at 10:00 A.M., New York City time, on the third full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to as the “Initial
Delivery Date.” For the Firm Stock delivered by the Selling Stockholders, such delivery shall be
made at the office of Ropes & Xxxx, LLP. Delivery of the Firm Stock shall be made to the
Representatives for the account of each Underwriter against payment by the several Underwriters
through the Representatives and of the respective aggregate purchase prices of the Firm Stock being
sold by the Company and the Selling Stockholders to or upon the order of the Company and the
Selling Stockholders of the purchase price by wire transfer in immediately available funds to the
accounts specified by the Company and the Selling Stockholders. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. The Company shall deliver the Firm Stock (except such
Firm Stock held by the Selling Stockholders) through the facilities of DTC unless the
Representatives shall otherwise instruct. For the Firm Stock delivered by the Selling Stockholders,
upon delivery, the Selling Stockholders shall register such Firm Stock in such names and in such
denominations as the Representatives shall request in writing no less than two full business days
prior to the Initial Delivery Date. For the purpose of expediting the checking and packaging of
the certificates for the Firm Stock, the Selling Stockholders shall make the certificates
representing the Firm Stock available for inspection by the Representatives in New York, New York,
not later than 2:00 P.M., New York City time, on the business day prior to the Initial Delivery
Date.
The option granted in Section 3 will expire 30 days after the date of this Agreement and may
be exercised in whole or from time to time in part by written notice being given to the Company and
the Selling Stockholders by the Representatives; provided that if such date falls on a day that is
not a business day, the options granted in Section 3 will expire on the next succeeding business
day. Such notice shall set forth the aggregate number of shares of Option Stock as to which the
options are being exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to
17
be issued and the date and time, as determined by the Representatives, when the shares of
Option Stock are to be delivered; provided, however, that this date and time shall not be earlier
than the Initial Delivery Date nor earlier than the second business day after the date on which the
options shall have been exercised nor later than the fifth business day after the date on which the
options shall have been exercised. Each date and time the shares of Option Stock are delivered is
sometimes referred to as an “Option Stock Delivery Date,” and the Initial Delivery Date and any
Option Stock Delivery Date are sometimes each referred to as a “Delivery Date.”
Delivery of the Option Stock by the Company and the Selling Stockholders and payment for the
Option Stock by the several Underwriters through the Representatives shall be made at 10:00 A.M.,
New York City time, on the date specified in the corresponding notice described in the preceding
paragraph or at such other date or place as shall be determined by agreement between the
Representatives and the Company. For the Option Stock delivered by the Selling Stockholders, such
delivery shall be made at the office of Ropes & Xxxx, LLP. On the Option Stock Delivery Date, the
Company and the Selling Stockholders shall deliver or cause to be delivered the Option Stock to the
Representatives for the account of each Underwriter against payment by the several Underwriters
through the Representatives and of the respective aggregate purchase prices of the Option Stock
being sold by the Company and the Selling Stockholders to or upon the order of the Company and the
Selling Stockholders of the purchase price by wire transfer in immediately available funds to the
accounts specified by the Company and the Selling Stockholders. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. The Company shall deliver the Option Stock (except such
Option Stock held by the Selling Stockholders) through the facilities of DTC unless the
Representatives shall otherwise instruct. For the Option Stock delivered by the Selling
Stockholders, upon delivery, the Selling Stockholders shall register such Option Stock in such
names and in such denominations as the Representatives shall request in writing no less than two
full business days prior to the Option Stock Delivery Date. For the purpose of expediting the
checking and packaging of the certificates for the Option Stock, the Selling Stockholders shall
make the certificates representing the Option Stock available for inspection by the Representatives
in New York, New York, not later than 2:00 P.M., New York City time, on the business day prior to
the Option Stock Delivery Date.
6. Further Agreements of the Company and the Underwriters. (a) The Company agrees:
(i) To prepare the Prospectus in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the
Commission’s close of business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the last Delivery Date except as provided
herein; to advise the Representatives, promptly after it receives notice thereof, of the
time when any amendment or supplement to the Registration Statement or the Prospectus has
been filed and to furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of the
18
Prospectus or any Issuer Free Writing Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding or examination for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement, the Prospectus
or any Issuer Free Writing Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(ii) To furnish promptly to each of the Representatives and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission, including all consents and
exhibits filed therewith;
(iii) To deliver promptly to the Representatives such number of the following documents
as the Representatives shall reasonably request: (A) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation of per share earnings), (B)
each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus and
(C) each Issuer Free Writing Prospectus; and, if the delivery of a prospectus is required at
any time after the date hereof in connection with the offering or sale of the Stock or any
other securities relating thereto and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with the Securities Act,
to notify the Representatives and, upon their request, to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of an amended or
supplemented Prospectus that will correct such statement or omission or effect such
compliance;
(iv) To file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the Commission;
(v) Prior to filing with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, to furnish a copy thereof to the Representatives and counsel
for the Underwriters and obtain the consent of the Representatives to the filing;
(vi) Not to make any offer relating to the Stock that would constitute an Issuer Free
Writing Prospectus without the prior written consent of the Representatives.
(vii) To comply with all applicable requirements of Rule 433 of the Rules and
Regulations with respect to any Issuer Free Writing Prospectus; and if at any time after
19
the date hereof any events shall have occurred as a result of which any Issuer Free
Writing Prospectus, as then amended or supplemented, would conflict with the information in
the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or
would include an untrue statement of a material fact or omit 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, or, if for any other reason it shall be necessary to
amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and,
upon their request, to file such document and to prepare and furnish without charge to each
Underwriter as many copies as the Representatives may from time to time reasonably request
of an amended or supplemented Issuer Free Writing Prospectus that will correct such
conflict, statement or omission or effect such compliance;
(viii) As soon as practicable after the Effective Date (it being understood that the
Company shall have until at least 410 or, if the fourth quarter following the fiscal quarter
that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year,
455 days after the end of the Company’s current fiscal quarter), to make generally available
to the Company’s security holders and to deliver to the Representatives an earnings
statement of the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158);
(ix) Promptly from time to time to take such action as the Representatives may
reasonably request to qualify the Stock for offering and sale under the securities laws of
Canada and such other jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Stock;
provided that in connection therewith the Company shall not be required to (i) qualify as a
foreign corporation in any jurisdiction in which it would not otherwise be required to so
qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(x) For a period commencing on the date hereof and ending on the 180th day after the
date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (1) offer for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at any time in
the future of) any shares of Common Stock or securities convertible into or exchangeable for
Common Stock (other than the Stock and shares issued pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans existing on the date
hereof), or sell or grant options, rights or warrants with respect to any shares of Common
Stock or securities convertible into or exchangeable for Common Stock (other than the grant
of options pursuant to option plans existing on the date hereof), (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of such shares of Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common
Stock or other securities, in cash or
20
otherwise, (3) file or cause to be filed a registration statement, including any amendments,
with respect to the registration of any shares of Common Stock or securities convertible,
exercisable or exchangeable into Common Stock or any other securities of the Company (other
than any registration statement on Form S-8) or (4) publicly disclose the intention to do
any of the foregoing, in each case without the prior written consent of the Representatives,
on behalf of the Underwriters, and to cause each officer, director and stockholder of the
Company set forth on Schedule 3 hereto to furnish to the Representatives, prior to
the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit
A hereto (the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the
last 17 days of the Lock-Up Period, the Company issues an earnings release or material news
or a material event relating to the Company occurs or (2) prior to the expiration of the
Lock-Up Period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed
in this paragraph shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the announcement of the material news
or the occurrence of the material event, unless the Representatives, on behalf of the
Underwriters, waive such extension in writing. This clause (x) shall not prohibit the
Company from issuing shares of Common Stock in connection with the acquisition by the
Company or one of its subsidiaries of the assets or capital stock of another person or
entity, whether through merger, asset acquisition, stock purchase or otherwise; provided,
that the shares of Common Stock issued do not represent more than 5% of the Company’s
outstanding capital stock immediately prior to such acquisition and the recipient of such
shares shall agree in writing to be bound by the restrictions contained in this Section
6(a)(x).
(xi) To apply the net proceeds from the sale of the Stock being sold by the Company as
set forth in the Prospectus;
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer
information” (as defined in Rule 433 of the Rules and Regulations) in any “free writing prospectus”
(as defined in Rule 405 of the Rules and Regulations) used or referred to by such Underwriter
without the prior consent of the Company (any such issuer information with respect to whose use the
Company has given its consent, “Permitted Issuer Information”); provided that (i) no such consent
shall be required with respect to any such issuer information contained in any document filed by
the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer
information,” as used in this Section 6(b), shall not be deemed to include information prepared by
or on behalf of such Underwriter on the basis of or derived from issuer information.
7. Further Agreements of the Selling Stockholders. Each Selling Stockholder agrees, severally
and not jointly:
(a) To furnish to the Representatives, prior to the Initial Delivery Date, a letter
substantially in the form of Exhibit A hereto;
(b) That the Stock to be sold by the Selling Stockholder hereunder, which is represented by
the certificates held in custody for the Selling Stockholder, is subject to the
21
interest of the Underwriters, that the arrangements made by the Selling Stockholder for such
custody are to that extent irrevocable except pursuant to a termination of this Agreement or as
otherwise set forth in the Custody Agreement, and that the obligations of the Selling Stockholder
hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by
the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the
death or incapacity of any executor or trustee or the termination of such trust, or the occurrence
of any other event.
(c) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder
(other than, if applicable, the Company and the Underwriters) shall use or refer to any “free
writing prospectus” (as defined in Rule 405), relating to the Stock.
(d) To deliver to the Representatives prior to the Initial Delivery Date a properly completed
and executed United States Treasury Department Form W-8 (if the Selling Stockholder is a non-United
States person) or Form W-9 (if the Selling Stockholder is a United States person).
8. Expenses. The Company agrees, whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and
taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of the
Stock and any stamp duties or other taxes payable in that connection, and the preparation and
printing of certificates for the Stock; (b) the preparation, printing and filing under the
Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement
thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), any
Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or
supplement thereto, all as provided in this Agreement; (d) the production and distribution of this
Agreement, any supplemental agreement among Underwriters, and any other related documents in
connection with the offering, purchase, sale and delivery of the Stock; (e) the delivery and
distribution of the Custody Agreements and the Powers of Attorney — and the fees and expenses of
the Custodian (and any other attorney-in-fact); (f) any required review by the Financial Industry
Regulatory Authority (“FINRA”) of the terms of sale of the Stock (including related fees and
expenses of counsel to the Underwriters in an amount that is not greater than $50,000); (g) the
inclusion of the Stock on The NASDAQ Global Market and/or any other exchange; (h) the qualification
of the Stock under the securities laws of the several jurisdictions as provided in Section 6(a)(ix)
and the preparation, printing and distribution of a Blue Sky Memorandum (including related fees and
expenses of counsel to the Underwriters); (i) the preparation, printing and distribution of one or
more versions of the Preliminary Prospectus and the Prospectus for distribution in Canada, often in
the form of a Canadian “wrapper” (including related fees and expenses of Canadian counsel to the
Underwriters); (j) the investor presentations on any “road show” undertaken in connection with the
marketing of the Stock, including, without limitation, expenses associated with any electronic
roadshow, travel and lodging expenses of the representatives and officers of the Company and fifty
percent (50%) of the cost of any aircraft chartered in connection with the road show; and (k) all
other costs and expenses incident to the performance of the obligations of the Company and the
Selling Stockholders under this Agreement, provided that, except as provided in this Section 8,
Section
22
10 and Section 13, the Underwriters shall pay their own costs and expenses of their counsel
and the expense of advertising any offering of the Stock made by the Underwriters.
9. Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters
hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations
and warranties of the Company and the Selling Stockholders contained herein, to the performance by
the Company and the Selling Stockholders of their respective obligations hereunder, and to each of
the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with
Section 6(a)(i); the Company shall have complied with all filing requirements applicable to
any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order
suspending the effectiveness of the Registration Statement or preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no
proceeding or examination for such purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to
such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure
Package, or any amendment or supplement thereto, contains an untrue statement of a fact
which, in the opinion of Ropes & Xxxx LLP, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Custody Agreements, the Powers of Attorney, the
Stock, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus,
and all other legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company and the Selling Stockholders shall have furnished to such
counsel all documents and information that they may reasonably request to enable them to
pass upon such matters.
(d) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP shall have furnished to the
Representatives its written opinion, as counsel to the Company, addressed to the
Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to
the Representatives, substantially in the form attached hereto as Exhibit B-1.
(e) The respective counsel for each of the Selling Stockholders shall have furnished to
the Representatives its written opinion, as counsel to each of the Selling Stockholders for
whom it is acting as counsel, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives, substantially in the form
attached hereto as Exhibit B-2.
23
(f) The Representatives shall have received from Ropes & Xxxx LLP, counsel for the
Underwriters, such opinion or opinions, dated such Delivery Date, with respect to the
issuance and sale of the Stock, the Registration Statement, the Prospectus and the Pricing
Disclosure Package and other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representatives shall have received
from Deloitte & Touche LLP a letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the respective dates as
of which specified financial information is given in the most recent Preliminary Prospectus,
as of a date not more than three days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other matters ordinarily
covered by accountants’ “comfort letters” to underwriters in connection with registered
public offerings.
(h) With respect to the letter of Deloitte & Touche LLP referred to in Section 9(g) and
delivered to the Representatives concurrently with the execution of this Agreement (the
“initial letter”), the Company shall have furnished to the Representatives a letter (the
“bring-down letter”) of such accountants, addressed to the Underwriters and dated such
Delivery Date (i) confirming that they are independent public accountants within the meaning
of the Securities Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three days prior to the
date of the bring-down letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth in the initial
letter.
(i) The Company shall have furnished to the Representatives a certificate, dated such
Delivery Date, of its Chief Executive Officer and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in Section 1
are true and correct on and as of such Delivery Date, and the Company has complied
with all its agreements contained herein and satisfied all the conditions on its
part to be performed or satisfied hereunder at or prior to such Delivery Date;
24
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued; and no proceedings or examination for that purpose have been
instituted or, to the knowledge of such officers, threatened; and
(iii) They have examined the Registration Statement, the Prospectus and the
Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration
Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the
applicable Delivery Date, or (3) the Pricing Disclosure Package, as of the
Applicable Time, did not and do not contain any untrue statement of a material fact
and did not and do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (except in the case of the Registration
Statement, in the light of the circumstances under which they were made) not
misleading, and (B) since the Effective Date, no event has occurred that should have
been set forth in a supplement or amendment to the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus that has not been so set forth;
(j) Each Selling Stockholder (or the Custodian or one or more attorneys-in-fact on
behalf of the Selling Stockholders) shall have furnished to the Representatives on such
Delivery Date a certificate, dated such Delivery Date, signed by, or on behalf of, the
Selling Stockholder (or the Custodian or one or more attorneys-in-fact) stating that the
representations, warranties and agreements of the Selling Stockholder contained herein are
true and correct on and as of such Delivery Date and that the Selling Stockholder has
complied with all its agreements contained herein and has satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to such Delivery Date.
(k) The Executive Selling Stockholder (or the Custodian or one or more
attorneys-in-fact on behalf of the Executive Selling Stockholder) shall have furnished to
the Representatives on such Delivery Date a certificate, dated such Delivery Date, signed
by, or on behalf of, such Executive Selling Stockholder (or the Custodian or one or more
attorneys-in-fact) stating that such Executive Selling Stockholder has reviewed this
Agreement, the Registration Statement and the Pricing Disclosure Package and has no reason
to believe (i) the Registration Statement, as of its effective date, contained an 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 not misleading, or (ii) the Pricing
Disclosure Package, as of the Applicable Time, contained an untrue statement of a material
fact or omitted 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; provided that
no representation or warranty is made as to information contained in or omitted from the
Registration Statement or Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein, which information is specified in
Section 10(f).
(l) (i) neither the Company nor any of its subsidiaries shall have sustained, since the
date of the latest audited financial statements included in the most recent Preliminary
Prospectus, any loss or interference with its business from fire, explosion,
25
flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), results of operations, stockholders’
equity, properties, management, business or prospects of the Company and its subsidiaries
taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is,
in the judgment of the Representatives, so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(m) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market, shall have been
suspended or materially limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities, (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in general economic,
political or financial conditions, including, without limitation, as a result of terrorist
activities after the date hereof (or the effect of international conditions on the financial
markets in the United States shall be such), as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public offering or
delivery of the Stock being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(n) The NASDAQ Global Market shall have approved the Stock for inclusion, subject only
to official notice of issuance and evidence of satisfactory distribution.
(o) The Lock-Up Agreements between the Representatives and the officers, directors and
stockholders of the Company set forth on Schedule 3, delivered to the
Representatives on or before the date of this Agreement, shall be in full force and effect
on such Delivery Date.
(p) Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery
of this Agreement, if there are any debt securities or preferred stock of, or guaranteed by,
the Company or any of its subsidiaries that are rated by a “nationally recognized
statistical rating organization,” as such term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act, (i) no downgrading shall have occurred in the
rating accorded any such debt securities or preferred stock and (ii) no such organization
shall have publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of any such debt securities or
26
preferred stock (other than an announcement with positive implications of a possible
upgrading).
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, its directors,
officers and employees and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales of Stock),
to which that Underwriter, director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in (A) any Preliminary Prospectus, the
Registration Statement, the Prospectus or in any amendment or supplement thereto, (B) any
Issuer Free Writing Prospectus or in any amendment or supplement thereto or (C) any
Permitted Issuer Information used or referred to in any “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) used or referred to by any Underwriter,
(D) any “road show” (as defined in Rule 433 of the Rules and Regulations) not constituting
an Issuer Free Writing Prospectus (a “Non-Prospectus Road Show”) or (E) any Blue Sky
application or other document prepared or executed by the Company (or based upon any written
information furnished by the Company for use therein) specifically for the purpose of
qualifying any or all of the Stock under the securities laws of any state or other
jurisdiction (any such application, document or information being hereinafter called a “Blue
Sky Application”) or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus
or in any amendment or supplement thereto or in any Permitted Issuer Information, any
Non-Prospectus Road Show or any Blue Sky Application, any material fact required to be
stated therein or necessary to make the statements therein not misleading, and shall
reimburse each Underwriter and each such director, officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, director, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement
thereto or in any Permitted Issuer Information, any Non-Prospectus Road Show or any Blue Sky
Application, in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on behalf of any
27
Underwriter specifically for inclusion therein, which information consists solely of
the information specified in Section 10(f). The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any Underwriter or to any
director, officer, employee or controlling person of that Underwriter.
(b) Each Selling Stockholder, severally and not jointly, shall indemnify and hold
harmless each Underwriter, its directors, officers and employees, and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which that Underwriter, director, officer,
employee or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information,
any Non-Prospectus Road Show, any Blue Sky Application or any “free writing prospectus” (as
defined in Rule 405), prepared by or on behalf of the Selling Stockholder or used or
referred to by the Selling Stockholder in connection with the offering of the Stock in
violation of Section 7(d) (a “Selling Stockholder Free Writing Prospectus”), (ii) the
omission or alleged omission to state in any Preliminary Prospectus, Registration Statement,
the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto
or in any Permitted Issuer Information, any Non-Prospectus Road Show, any Blue Sky
Application or any Selling Stockholder Free Writing Prospectus, any material fact required
to be stated therein or necessary to make the statements therein not misleading, and shall
reimburse each Underwriter, its directors, officers and employees and each such controlling
person promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, its directors, officers and employees or controlling persons in connection with
investigating or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred or (iii) any breach of any representation
or warranty of the Selling Stockholders in this Agreement or any certificate or other
agreement delivered pursuant hereto or contemplated hereby; provided, however, that the
Selling Stockholders shall only be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, untrue statements or
omissions, or alleged untrue statements or omissions, made in reliance upon and in
conformity with written information furnished by or on behalf of such Selling Stockholder to
the Company expressly for use in the Preliminary Prospectus, Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or
in any Permitted Issuer Information, any Non-Prospectus Road Show, any Blue Sky Application
or any Selling Stockholder Free Writing Prospectus. The liability of the Selling
Stockholder under the indemnity agreement contained in this paragraph shall be limited to an
amount equal to the total net proceeds, after deducting underwriting commissions and
discounts, from the offering of the shares of the Stock purchased under the Agreement
received by the Selling Stockholder, as set forth in the table on the cover page of the
Prospectus. The foregoing indemnity agreement is in addition to any liability that
28
the Selling Stockholders may otherwise have to any Underwriter or any officer, employee
or controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, each Selling Stockholder, their respective directors, officers and employees, and
each person, if any, who controls the Company or such Selling Stockholder within the meaning
of Section 15 of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company, such Selling
Stockholder or any such director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Non-Prospectus Road Show or Blue Sky Application,
or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Non-Prospectus Road Show or Blue Sky Application,
any material fact required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and in conformity
with written information concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for inclusion therein,
which information is limited to the information set forth in Section 10(f). The foregoing
indemnity agreement is in addition to any liability that any Underwriter may otherwise have
to the Company, such Selling Stockholder or any such director, officer, employee or
controlling person.
(d) Promptly after receipt by an indemnified party under this Section 10 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Section 10, notify
the indemnifying party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has been
materially prejudiced by such failure and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 10. If any such claim or action shall
be brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the indemnified party
under this Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the indemnified party shall have the right to employ
counsel to represent jointly the indemnified party and those
29
other indemnified parties and their respective directors, officers, employees and
controlling persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought under this Section 10 if (i) the indemnified party and the
indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to the indemnified party;
(iii) the indemnified party and its directors, officers, employees and controlling persons
shall have reasonably concluded that there may be legal defenses available to them that are
different from or in addition to those available to the indemnifying party; or (iv) the
named parties in any such proceeding (including any impleaded parties) include both the
indemnified parties or their respective directors, officers, employees or controlling
persons, on the one hand, and the indemnifying party, on the other hand, and representation
of both sets of parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, and in any such event the fees and expenses of
such separate counsel shall be paid by the indemnifying party. No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not include any
findings of fact or admissions of fault or culpability as to the indemnified party, or (ii)
be liable for any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under Section 10(a),
10(b) or 10(c) in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be 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 Stock 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, with
respect to the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, 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, with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from
30
the offering of the Stock purchased under this Agreement (before deducting expenses)
received by the Company and the Selling Stockholders, as set forth in the table on the cover
page of the Prospectus, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of the Stock purchased
under this Agreement, as set forth in the table on the cover page of the Prospectus, on the
other hand. The relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling Stockholders or
the Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 10(e) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in this Section
10(e) shall be deemed to include, for purposes of this
Section 10(e), any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 10(e),
no Underwriter shall be required to contribute any amount in excess of the amount by which
the net proceeds from the sale of the Stock underwritten by it exceeds the amount of any
damages that such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute as provided in this Section
10(e) are several in proportion to their respective underwriting obligations and not joint.
Notwithstanding the provisions of this Section 10(e), no Selling Stockholder shall be
required to contribute any amount, taken together with any amount paid or payable by such
Selling Stockholder pursuant to Section 10(c), in excess of the total net proceeds from the
offering of the shares of the Stock purchased under the Agreement received by such Selling
Stockholder, as set forth in the table on the cover page of the Prospectus. The Selling
Stockholders’ obligations to contribute as provided in this Section 10(e) are several in
proportion to the net proceeds received by them, respectively, from the sale of shares of
Stock under this Agreement and not joint.
(f) The Underwriters severally confirm and the Company and each Selling Stockholder
acknowledges and agrees that the statements regarding delivery of shares by the Underwriters
set forth on the cover page of, and the concession and reallowance figures and the paragraph
relating to stabilization by the Underwriters appearing under the caption “Underwriting” in,
the most recent Preliminary Prospectus and the Prospectus are correct and constitute the
only information concerning such Underwriters furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Non-Prospectus
31
Road Show. The Underwriters acknowledge and agree that the information provided by or
on behalf of the Selling Stockholders in the “Questionnaire for Selling Stockholder In
Connection with Public Offering,” the Custody Agreement and the Power of Attorney furnished
by the Selling Stockholder to the Company is the only information supplied by or on behalf
of such Selling Stockholder for use in Preliminary Prospectus, Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or
in any Permitted Issuer Information, any Non-Prospectus Road Show, any Blue Sky Application
or any Selling Stockholder Free Writing Prospectus.
11. Defaulting Underwriters. If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Stock that the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of shares of the Firm
Stock set forth opposite the name of each remaining non-defaulting Underwriter in Schedule
1 hereto bears to the total number of shares of the Firm Stock set forth opposite the names of
all the remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however, that
the remaining non-defaulting Underwriters shall not be obligated to purchase any of the Stock on
such Delivery Date if the total number of shares of the Stock that the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the total number of shares
of the Stock to be purchased on such Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the number of shares of the Stock that it
agreed to purchase on such Delivery Date pursuant to the terms of Section 3. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the Stock to be purchased on
such Delivery Date. If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares that the defaulting Underwriter or Underwriters
agreed but failed to purchase on such Delivery Date, this Agreement (or, with respect to any Option
Stock Delivery Date, the obligation of the Underwriters to purchase, and of the Company to sell,
the Option Stock) shall terminate without liability on the part of any non-defaulting Underwriter
or the Company or the Selling Stockholders, except that the Company will continue to be liable for
the payment of expenses to the extent set forth in Sections 8 and 13. As used in this Agreement,
the term “Underwriter” includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto that, pursuant to this Section 11,
purchases Stock that a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Company and the Selling Stockholders for damages caused by its default. If other
Underwriters are obligated or agree to purchase the Stock of a defaulting or withdrawing
Underwriter, either the Representatives or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
32
12. Termination. The obligations of the Underwriters hereunder may be terminated by the
Representatives by notice given to and received by the Company and the Selling Stockholders prior
to delivery of and payment for the Firm Stock if, prior to that time, any of the events described
in Sections 9(l) and 9(m) shall have occurred or if the Underwriters shall decline to purchase the
Stock for any reason permitted under this Agreement.
13. Reimbursement of Underwriters’ Expenses. If the Company or any Selling Stockholder shall
fail to tender the Stock for delivery to the Underwriters for any reason or (b) the Underwriters
shall decline to purchase the Stock for any reason permitted under this Agreement, the Company will
reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Stock, and upon demand the Company and the Selling Stockholders shall pay
the full amount thereof to the Representatives. If this Agreement is terminated pursuant to
Section 11 by reason of the default of one or more Underwriters, neither the Company nor any
Selling Stockholder shall be obligated to reimburse any defaulting Underwriter on account of those
expenses.
14. Research Analyst Independence. The Company acknowledges that the Underwriters’ research
analysts and research departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company and/or the offering that differ from
the views of their respective investment banking divisions. The Company and the Selling
Stockholders hereby waive and release, to the fullest extent permitted by law, any claims that the
Company or the Selling Stockholders may have against the Underwriters with respect to any conflict
of interest that may arise from the fact that the views expressed by their independent research
analysts and research departments may be different from or inconsistent with the views or advice
communicated to the Company or the Selling Stockholder by such Underwriters’ investment banking
divisions. The Company and the Selling Stockholder acknowledge that each of the Underwriters is a
full service securities firm and as such from time to time, subject to applicable securities laws,
may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions
contemplated by this Agreement.
15. No Fiduciary Duty. The Company and the Selling Stockholders acknowledge and agree that in
connection with this offering, sale of the Stock or any other services the Underwriters may be
deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or
otherwise, between the parties or any oral representations or assurances previously or subsequently
made by the Underwriters: (i) no fiduciary or agency relationship between the Company, Selling
Stockholders and any other person, on the one hand, and the Underwriters, on the other, exists;
(ii) the Underwriters are not acting as advisors, expert or otherwise, to either the Company or the
Selling Stockholders, including, without limitation, with respect to the determination of the
public offering price of the Stock, and such relationship between the Company and the Selling
Stockholders, on the one hand, and the Underwriters, on the other, is entirely and solely
commercial, based on arms-length negotiations; (iii) any duties
33
and obligations that the Underwriters may have to the Company or Selling Stockholders shall be
limited to those duties and obligations specifically stated herein; and (iv) the Underwriters and
their respective affiliates may have interests that differ from those of the Company and the
Selling Stockholders. The Company and the Selling Stockholders hereby waive any claims that the
Company or the Selling Stockholders may have against the Underwriters with respect to any breach of
fiduciary duty in connection with this offering.
16. Notices, Etc. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile
transmission to Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Registration (Fax: 000-000-0000), with a copy, in the case of
any notice pursuant to Section 10(d), to the Director of Litigation, Office of the
General Counsel, Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Fax: 000-000-0000) and to X.X. Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk (Fax:
000-000-0000);
(b) if to the Company, shall be delivered or sent by mail or facsimile
transmission to the address of the Company set forth in the Registration Statement,
Attention: General Counsel (Fax: 000-000-0000).
(c) If to any Selling Stockholders, shall be delivered or sent by mail or
facsimile transmission to such Selling Stockholder at the address set forth in
Schedule 2 hereto.
Any such statements, requests, notices or agreements shall take effect at the time of receipt
thereof. The Company and the Selling Stockholders shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the Underwriters by the
Representatives, and the Company and the Underwriters shall be entitled to act and rely upon
request, consent, notice or agreement given or made on behalf of the Selling Stockholders by the
Custodian.
17. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, the Selling Stockholders and their respective
personal representatives and successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company and the Selling Stockholders contained in this Agreement
shall also be deemed to be for the benefit of the directors, officers and employees of the
Underwriters and each person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained in
Section 10(d) of this Agreement shall be deemed to be for the benefit of the directors of the
Company, the officers of the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the persons referred to
in this Section 17, any legal or
34
equitable right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
18. Survival. The respective indemnities, representations, warranties and agreements of the
Company, the Selling Stockholders and the Underwriters contained in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment
for the Stock and shall remain in full force and effect, regardless of any investigation made by or
on behalf of any of them or any person controlling any of them.
19. Definition of the Terms “Business Day” and “Subsidiary.” For purposes of this Agreement,
(a) “business day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on
which banking institutions in New York are generally authorized or obligated by law or executive
order to close and (b) “subsidiary” has the meaning set forth in Rule 405 of the Rules and
Regulations.
20. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
21. Counterparts. This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be deemed to be an
original but all such counterparts shall together constitute one and the same instrument.
22. Headings. The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
35
If the foregoing correctly sets forth the agreement between the Company, the Selling
Stockholders and the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
| Very truly yours, LogMeIn, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE SELLING STOCKHOLDERS NAMED IN SCHEDULE 2 TO THIS
AGREEMENT |
||||
| By: | ||||
| Attorney-in-Fact | ||||
| Name: | ||||
| Title: | ||||
36
Accepted:
Barclays Capital Inc.
X.X. Xxxxxx Securities Inc.
X.X. Xxxxxx Securities Inc.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
of the several Underwriters named
in Schedule 1 hereto
By Barclays Capital Inc.
By: |
||||
| By X.X. Xxxxxx Securities Inc. | ||||
By: |
||||
37
SCHEDULE 1
| Number of Shares of | ||||
| Underwriters | Firm Stock | |||
Barclays Capital Inc. |
||||
X.X. Xxxxxx Securities Inc. |
||||
Xxxxxx Xxxxxx Partners LLC |
||||
RBC Capital Markets Corporation |
||||
Xxxxx Xxxxxxx & Co. |
||||
Total |
||||
38
SCHEDULE 2
| Number of Shares | Number of Shares | |||||||
| Name and Address of Selling Stockholder | of Firm Stock | of Option Stock | ||||||
Total |
||||||||
SCHEDULE 3
PERSONS DELIVERING LOCK-UP AGREEMENTS
Directors
Officers
Stockholders
SCHEDULE 4
ORALLY CONVEYED PRICING INFORMATION
1. [Public offering price]
2. [Number of shares offered]
SCHEDULE 5
Xxxxxxx Xxxxx
