Shares GAIN CAPITAL HOLDINGS, INC. COMMON STOCK (PAR VALUE $0.00001 PER SHARE) UNDERWRITING AGREEMENT
Exhibit
1.1
[_______________] Shares
COMMON STOCK (PAR VALUE $0.00001 PER SHARE)
[__________], 2010
[_____________], 2010
Xxxxxx Xxxxxxx & Co. Incorporated
Deutsche Bank Securities Inc.
As Representatives of the Underwriters
Deutsche Bank Securities Inc.
As Representatives of the Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GAIN Capital Holdings, Inc., a Delaware corporation (the “Company”), proposes to issue and
sell to the several Underwriters named in Schedule II hereto (the “Underwriters”), for whom you are
acting as representatives (the “Representatives”), and certain stockholders of the Company (the
“Firm Selling Stockholders”) named in Schedule I hereto severally propose to sell to the several
Underwriters, an aggregate of [_______________] shares of the common stock, par value $0.00001 per
share, of the Company (the “Firm Shares”), of which [_____________] shares are to be issued and
sold by the Company and [_____________] shares are to be sold by the Firm Selling Stockholders,
with each Firm Selling Stockholder selling the amount set forth opposite such Firm Selling
Stockholder’s name in Schedule I hereto.
Certain stockholders of the Company listed in Schedule III hereto (the “Additional Selling
Stockholders”), severally propose to sell to the several Underwriters not more than an additional
[______________] shares of the common stock, par value $0.00001 per share, of the Company (the
“Additional Shares”), if and to the extent that you, as Managers of the offering, shall have
determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common
stock granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “Shares.” The shares of common stock, par value
$0.00001 per share, of the Company to be outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to as the “Common Stock.” The Company, the Firm Selling
Stockholders and the Additional Selling Stockholders are hereinafter sometimes collectively
referred to as the “Sellers.” The Firm Selling Stockholders and the Additional Selling
Stockholders are hereinafter sometimes collectively referred to as the “Selling Stockholders.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, relating to the Shares. The registration statement
as amended at the time it becomes effective, including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the
“Registration Statement”; the prospectus in the form first used to confirm sales of Shares (or in
the form first made available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus.” If
the Company has filed an abbreviated registration statement to register additional shares of Common
Stock pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”),
then any reference herein to the term “Registration Statement” shall be deemed to include such Rule
462 Registration Statement.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule
405 under the Securities Act, “Time of Sale Prospectus” means the preliminary prospectus together
with the free writing prospectuses, if any, each identified in Schedule IV hereto, and “broadly
available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under
the Securities Act that has been made available without restriction to any person. As used herein,
the terms “Registration Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any, incorporated by reference therein.
Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) has agreed to reserve a portion of the
Shares to be purchased by it under this Agreement for sale to the Company’s directors, officers,
employees and business associates and other parties related to the Company (collectively,
“Participants”), as set forth in the Prospectus under the heading “Underwriters” (the “Directed
Share Program”). The Shares to be sold by Xxxxxx Xxxxxxx and its affiliates pursuant to the
Directed Share Program are referred to hereinafter as the “Directed Shares”. Any Directed Shares
not orally confirmed for purchase by any Participant by the end of the business day on which this
Agreement is executed will be offered to the public by the Underwriters as set forth in the
Prospectus.
1. Representations and Warranties of the Company. The Company represents and warrants to and
agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) the
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Registration Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at
the time of each sale of the Shares in connection with the offering when the Prospectus is not yet
available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of
Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
(iv) each broadly available road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading and (v) the Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the
Company in writing through the Representatives expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule IV hereto, and electronic road shows, if any, each furnished to you before
first use, the Company has not prepared, used or referred to, and will not, without your prior
written consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in good
standing would not reasonably be expected to have,
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individually or in the aggregate, a material adverse effect on the condition (financial or
otherwise), earnings, business or operations of the Company and its subsidiaries, taken as a whole
(“Material Adverse Effect”).
(e) Each subsidiary of the Company has been duly incorporated or formed as a limited liability
company, is validly existing as a corporation or limited liability company in good standing under
the laws of the jurisdiction of its incorporation or formation, has the corporate or limited
liability company power and authority to own its property and to conduct its business as described
in the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; all of the issued shares of capital stock, limited liability
company interest or other equity ownership interest issued by each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable (to the extent
applicable under the laws of the relevant jurisdiction) and are owned directly by the Company or by
one or more of the Company’s subsidiaries, free and clear of all liens, encumbrances, equities or
claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock (including the Shares to be sold by the Selling Stockholders)
outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized
and are validly issued, fully paid and non-assessable.
(i) The Shares to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and
non assessable, and the issuance of such Shares will not be subject to any preemptive or similar
rights.
(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) any
provision of the certificate of incorporation or by-laws of the Company, (iii) any agreement or
other instrument binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary, except,
in the case of clause (i) and (iii) above, where such contravention would not, individually or in
the aggregate, have a Material
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Adverse Effect or adversely affect the power or ability of the Company to perform its
obligations under this Agreement or result in any liability for any Underwriter. No consent,
approval, authorization or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this Agreement, except such as
may be required by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Shares and, except for any such consents, approvals, authorizations, orders
or qualifications, the absence of which would not, individually or in the aggregate, have a
Material Adverse Effect or adversely affect the power or ability of the Company to perform its
obligations under this Agreement or result in any liability for any Underwriter.
(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus and the Prospectus.
(l) There are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and proceedings that
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect or to materially adversely affect the Company and its subsidiaries, or adversely affect the
power or ability of the Company to perform its obligations under this Agreement or to consummate
the transactions contemplated by the Time of Sale Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are not so described or that, if
determined adversely to the Company or any of its subsidiaries, would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect; and there are no statutes,
regulations, contracts or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
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(o) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) Except as described in the Time of Sale Prospectus and 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 or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(r) Neither the Company nor any of its subsidiaries or affiliates, nor any director, officer,
or employee, nor, to the Company’s knowledge, any agent or representative of the Company or of any
of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer,
payment, promise to pay, or authorization or approval of the payment or giving of money, property,
gifts or anything else of value, directly or indirectly, to any “government official” (including
any officer or employee of a government or government-owned or controlled entity or of a public
international organization, or any person acting in an official capacity for or on behalf of any of
the foregoing, or any political party or party official or candidate for political office) to
influence official action or secure an improper advantage that would result in a violation of
applicable anti-corruption laws, including, without limitation, the Foreign Corrupt
Practices Act of 1977, as amended, or any rules and regulations thereunder (the “FCPA”); and the
Company and its subsidiaries and affiliates have conducted their businesses in compliance with
applicable anti-corruption laws, including, without limitation, the FCPA, and have instituted and
maintain and will continue to maintain policies and procedures designed to promote and achieve
compliance with such laws and with the representation and warranty contained herein.
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(s) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting
requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions
where the Company and its subsidiaries conduct business, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-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 Anti-Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(t) (i) The Company represents that neither the Company nor any of its subsidiaries
(collectively, the “Entity”) or any director, officer, employee, agent, affiliate or representative
acting on behalf of the Entity, is an individual or entity (“Person”) that is, or is owned or
controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United
Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant sanctions authority (collectively,
“Sanctions”), nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Entity represents and covenants that it 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:
(A) to fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
(iii) The Entity represents and covenants that, for the past 5 years, it has not knowingly
engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions
with any Person, or in any country or territory, that at the time of the dealing or transaction is
or was the subject of Sanctions.
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(u) Subsequent to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction; (ii) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term debt of the Company and its
subsidiaries, except in each case as described in each of the Registration Statement, the Time of
Sale Prospectus and the Prospectus, respectively.
(v) The Company and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them which is material to
the business of the Company and its subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Time of Sale 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 any real property
and buildings held under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the Company and its
subsidiaries, in each case except as described in the Time of Sale Prospectus.
(w) The Company and its subsidiaries own or possess, or can acquire on reasonable terms, all
material patents, patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names currently employed by them in connection
with the business now operated by them, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(x) No material labor dispute with the employees of the Company or any of its subsidiaries
exists, except as described in the Time of Sale Prospectus, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by
the employees of any of its principal white label partners, introducing brokers or contractors that
could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(y) The Company and each of its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such
8
amounts as are prudent and customary in the businesses in which they are engaged; neither the
Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for;
and neither the Company nor any of its subsidiaries has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a cost that
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect, except as described in the Time of Sale Prospectus.
(z) Except as described in the Time of Sale Prospectus and Prospectus, the Company and each of
its subsidiaries possess such valid and current licenses, memberships, certificates, authorizations
and permits issued by the appropriate federal, state, local or foreign regulatory authorities
(whether governmental, self-regulatory or otherwise), including, without limitation, the Commodity
Futures Trading Commission, the National Futures Association, the Financial Industry Regulatory
Authority, Inc. (“FINRA”), the Cayman Islands Monetary Authority, the United Kingdom Financial
Services Authority, the Australian Securities and Investments Commission, the Hong Kong Securities
and Futures Commission, the Japan Financial Supervisory Authority and other commodity exchanges,
and have made all necessary filings required under any federal, state, local or foreign law,
regulation or rule, in each case necessary to conduct their respective businesses as described in
the Time of Sale Prospectus. Neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of, or non-compliance with, any
such license, membership, certificate, authorization or permit, or relating to any failure to make
any necessary filings, which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, except as described in the Time of Sale Prospectus.
(aa) Except with respect to winding down its prior operations in accordance with local laws,
rules and regulations, and except as otherwise described in the Time of Sale Prospectus, neither
the Company nor any of its subsidiaries offer or provide any services or conduct or operate any
business in the People’s Republic of China. For the avoidance of doubt, references to the People’s
Republic of China exclude the Hong Kong and Macau Special Administrative Regions.
(bb) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
9
reasonable intervals and appropriate action is taken with respect to any differences. Since
the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness
in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no
change in the Company’s internal control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(cc) Except as described in the Time of Sale Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulations D or S of, the Securities Act,
other than shares issued pursuant to employee benefit plans, qualified stock option plans or other
employee compensation plans or pursuant to outstanding options, rights or warrants.
(dd) The Registration Statement, the Prospectus, the Time of Sale Prospectus and any
preliminary prospectus comply, and any amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus, the Time of Sale
Prospectus or any preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program.
(ee) No consent, approval, authorization or order of, or qualification with, any governmental
body or agency, other than those obtained, is required in connection with the offering of the
Directed Shares in any jurisdiction where the Directed Shares are being offered.
(ff) The Company has not offered, or caused Xxxxxx Xxxxxxx to offer, Shares to any person
pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a
customer , supplier or partner of the Company to alter the customer’s or supplier’s level or type
of business with the Company, or (ii) a trade journalist or publication to write or publish
favorable information about the Company or its products.
(gg) The Company and each of its subsidiaries have filed all federal, state, local and foreign
tax returns required to be filed through the date of this Agreement or have requested extensions
thereof (except where the failure to file would not, individually or in the aggregate, have a
Material Adverse Effect) and have paid all taxes required to be paid thereon (except for cases in
which the failure to file or pay would not have a Material Adverse Effect, or, except as currently
being contested in good faith and for which reserves required by U.S. GAAP have been created in the
financial statements of the Company), and no tax deficiency has been determined adversely to the
Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries
have any notice or knowledge of any tax deficiency which could reasonably be expected to be
determined adversely to the Company or its subsidiaries and which could reasonably be expected to
have) a Material Adverse Effect.
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2. Representations and Warranties of the Selling Stockholders. Each Selling Stockholder,
severally and not jointly, represents and warrants to and agrees with each of the Underwriters
that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of such
Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the performance by such
Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such
Selling Stockholder and [____________], as Custodian (the “Custodian”), relating to the deposit of
the Shares to be sold by such Selling Stockholder (the “Custody Agreement”) and the Power of
Attorney appointing certain individuals as such Selling Stockholder’s attorneys-in-fact to the
extent set forth therein, relating to the transactions contemplated hereby and by the Registration
Statement (the “Power of Attorney”) will not contravene (i) any provision of applicable law, (ii)
the certificate of incorporation, limited liability company agreement, partnership agreement or
other formation document or by-laws or similar agreement of such Selling Stockholder, (iii) any
agreement or other instrument binding upon such Selling Stockholder or (iv) any judgment, order or
decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder,
except in the cases of clause (i) and (iii) as would not, individually or in the aggregate,
reasonably be expected to result in any liability for any Underwriter or impair in any material
respect the ability of such Selling Stockholder to consummate the transactions contemplated by this
Agreement, the Custody Agreement or the Power of Attorney. No consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required for the performance by
such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power
of Attorney of such Selling Stockholder, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date will have, valid title to, or a
valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial
Code in respect of, the Shares to be sold by such Selling Stockholder free and clear of all
security interests, claims, liens, equities or other encumbrances and the legal right and power,
and all authorization and approval required by law, to enter into this Agreement, the Custody
Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such
Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and
delivered by such Selling Stockholder and are valid and binding agreements of such Selling
Stockholder.
(e) Upon payment by the Underwriters for the Shares to be sold by such Selling Stockholder
pursuant to this Agreement, delivery of such Shares, as
11
directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be
designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede
or such other nominee and the crediting of such Shares on the books of DTC to securities accounts
of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse
claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to
such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of
Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid
security entitlement in respect of such Shares and (C) no action based on any “adverse claim”,
within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the
Underwriters with respect to such security entitlement; for purposes of this representation, such
Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such
Shares will have been registered in the name of Cede or another nominee designated by DTC, in each
case on the Company’s share registry in accordance with its certificate of incorporation, bylaws
and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of
Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on
the records of DTC will have been made pursuant to the UCC.
(f) The sale of the Shares by such Selling Stockholder pursuant to this Agreement is not
prompted by any information concerning the Company or its subsidiaries which is not set forth in
the Time of Sale Prospectus.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares
in connection with the offering when the Prospectus is not yet available to prospective purchasers
and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (iii) each broadly available road show,
if any, when considered together with the Time of Sale Prospectus, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading and (iv) the
Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the representations and warranties set forth in this paragraph 2(g) are 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
12
expressly for use in the Registration Statement, the Time of Sale Prospectus, any broadly
available road show, the Prospectus or any amendments or supplements thereto.
3. Agreements to Sell and Purchase. The Company and each Firm Selling Stockholder, severally
and not jointly, hereby agree to sell to the several Underwriters, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the Company and such Firm
Selling Stockholder at $[______] a share (the “Purchase Price”) the number of Firm Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that bears the same
proportion to the number of Firm Shares to be sold by the Company and such Firm Selling Stockholder
as the number of Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, each Additional Selling Stockholder severally and not jointly agrees to
sell to the several Underwriters the Additional Shares to be sold by such Additional Selling
Stockholder according to the terms of this Agreement, and the Underwriters shall have the right to
purchase, severally and not jointly, up to [_______________] Additional Shares at the Purchase
Price. You may exercise this right on behalf of the Underwriters in whole or from time to time in
part by giving written notice not later than 30 days after the date of this Agreement. Any
exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters
and the date on which such shares are to be purchased. Each purchase date must be at least one
business day after the written notice is given and may not be earlier than the closing date for the
Firm Shares nor later than ten business days after the date of such notice. Additional Shares may
be purchased as provided in Section 5 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Shares. On each day, if any, that Additional
Shares are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not
jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set
forth in Schedule II hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
The Company hereby agrees that, without the prior written consent of the Representatives on
behalf of the Underwriters, it will not, during the period ending 180 days after the date of the
Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part,
13
any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (3) file any registration statement with the
Commission relating to the offering of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to the Shares to be sold
hereunder or to the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing. Notwithstanding the foregoing, if (1) during the last
17 days of the 180-day restricted period the Company issues an earnings release or material news or
a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day
restricted period, the Company announces that it will release earnings results during the 16-day
period beginning on the last day of the 180-day period, the restrictions imposed by this agreement
shall continue to apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event. The Company shall
promptly notify the Representatives of any earnings release, news or event that may give rise to an
extension of the initial 180-day restricted period.
4. Terms of Public Offering. The Sellers are advised by you that the Underwriters propose to
make a public offering of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Sellers
are further advised by you that the Shares are to be offered to the public initially at $[___] a
share (the “Public Offering Price”) and to certain dealers selected by you at a price that
represents a concession not in excess of $[____] a share under the Public Offering Price, and that
any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $[___] a
share, to any Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by the Company and each Firm
Selling Stockholder shall be made to the Company and such Firm Selling Stockholder, or at the
direction of such Firm Selling Stockholder or its agent, to the Custodian, in Federal or other
funds immediately available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City time, on
[____________], 2010, or at such other time on the same or such other date, not later than
[_________], 2010, as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares to be sold by each Additional Selling Stockholder shall be
made to such Additional Selling Stockholder, or at the direction of such Additional Selling
Stockholder or its agent, to the Custodian, in Federal or other funds immediately available in New
York City against delivery
14
of such Additional Shares for the respective accounts of the several Underwriters at 10:00
a.m., New York City time, on the date specified in the corresponding notice described in Section 3
or at such other time on the same or on such other date, in any event not later than [_______],
2010, as shall be designated in writing by you.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters. The Purchase Price payable
by the Underwriters shall be reduced by (i) any transfer taxes paid by, or on behalf of, the
Underwriters in connection with the transfer of the Shares to the Underwriters duly paid and (ii)
any withholding required by law.
6. Conditions to the Underwriters’ Obligations. The obligations of the Company and the Firm
Selling Stockholders to sell the Shares to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition
that the Registration Statement shall have become effective not later than [__________] (New York
City time) on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded to any of
the securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined in Section 3(a)(62) of the
Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the
15
Company, to the effect set forth in Section 6(a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are true and correct as
of the Closing Date and that the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of DLA Piper LLP,
outside counsel for the Company, each dated the Closing Date, substantially in the form attached as
Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date, with respect to each Selling
Stockholder, an opinion of Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP, counsel for the Selling Stockholders,
dated the Closing Date, substantially in the form attached as Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date opinion letters of (i) Xxxx Xxxxx
LLP, outside UK counsel for the Company, (ii) City-Yuwa Partners, outside Japanese counsel for the
Company , dated the Closing Date, substantially in the forms attached as Exhibit C-1 and C-2,
respectively, hereto.
(f) The Underwriters shall have received on the Closing Date opinion letters of (i) Xxxx Xxxxx
LLP, outside UK regulatory counsel for the Company, (ii) City-Yuwa Partners, outside Japanese
regulatory counsel for the Company, (iii) Freehills, outside Australian regulatory counsel for the
Company, (iv) Global Law Office, outside Chinese regulatory counsel for the Company, (v) Xxxxx
Xxxxx JSM, outside Hong Kong regulatory counsel for the Company, (vi) XxXxxxxx Xxxxxxxx LLP,
outside Canadian regulatory counsel for the Company and (vii) Xxxxxx Xxxxxx Rosenman LLP, outside
US regulatory counsel for the Company, each dated the Closing Date, and each substantially in the
forms attached as Exhibits D-1 through D-7, respectively, hereto.
(g) The Underwriters shall have received on the Closing Date an opinion and a Rule 10b-5
disclosure letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, each dated the
Closing Date, covering such matters as requested by the Underwriters.
With respect to Section 6(c) above, DLA Piper LLP and with respect to Section 6(g) above,
Xxxxx Xxxx & Xxxxxxxx LLP, may state that their opinions and beliefs are based upon their
participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the
Prospectus and any amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as specified. With respect to
Section 6(d) above, Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP may rely upon an opinion or opinions of
counsel for any Selling Stockholder and, with respect to
16
factual matters and to the extent such counsel deems appropriate, upon the representations of
each Selling Stockholder contained herein and in the Custody Agreement and Power of Attorney of
such Selling Stockholder and in other documents and instruments; provided that (A) each such
counsel for the Selling Stockholders is reasonably satisfactory to your counsel, (B) a copy of each
opinion so relied upon is delivered to you and is in form and substance reasonably satisfactory to
your counsel, (C) copies of such Custody Agreements and Powers of Attorney and of any such other
documents and instruments shall be delivered to you and shall be in form and substance satisfactory
to your counsel and (D) Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP shall state in their opinion that they
are justified in relying on each such other opinion.
The opinions of DLA Piper LLP, Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP and the various local and
regulatory counsels for the Company described in Sections 6(c), 6(d), 6(e) and 6(f) above (and any
opinions of counsel for any Selling Stockholders referred to in the immediately preceding
paragraph) shall be rendered to the Underwriters at the request of the Company or one or more of
the Selling Stockholders, as the case may be, and shall so state therein.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants,
containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided
that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date
hereof.
(i) The “lock-up” agreements, each substantially in the form of Exhibit E hereto, between you
and the stockholders, officers and directors of the Company listed on Exhibit F hereto, relating to
sales and certain other dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force and effect on the Closing
Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the sale of such Additional Shares.
7. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, three (3) signed copies of the Registration Statement
(including exhibits thereto) and for delivery to each other
17
Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to
furnish to you in New York City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the period mentioned in Section
7(e) or 7(f) below, as many copies of the Time of Sale Prospectus, the Prospectus and any
supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which you reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time
of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of
Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required
18
by law to be delivered in connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary
to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request, provided, however, that the Company shall
not be required in connection therewith, as a condition thereof, to qualify as a foreign
corporation or to execute a consent to service of process in any jurisdiction or subject itself to
taxation as doing business in any jurisdiction in which it is not already conducting its business.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) To comply with all applicable securities and other applicable laws, rules and regulations
in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share
Program.
(j) If any Selling Stockholder is not a U.S. person for U.S. federal income tax purposes, the
Company will deliver to each Underwriter (or its agent), on or before the Closing Date, (i) a
certificate with respect to the Company’s status as a “United States real property holding
corporation,” dated not more than thirty (30) days prior to the Closing Date, as described in
Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (ii) proof of delivery to the IRS
of the required notice, as described in Treasury Regulations 1.897-2(h)(2).
8. Covenants of the Selling Stockholders. Each Selling Stockholder, severally and not
jointly, covenants with each Underwriter as follows:
19
(a) Each Selling Stockholder will deliver to each Underwriter (or its agent) and the
Custodian, prior to or at the Closing Date, a properly completed and executed Internal Revenue
Service (“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments
to such form.
9. Expenses. Whether or not the transactions contemplated in this Agreement are consummated
or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses
incident to the performance of their obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company’s counsel, the Company’s accountants and counsel for the
Selling Stockholders in connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus,
any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and
amendments and supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery
of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the
offer and sale of the Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as provided in
Section 7(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to
the Underwriters incurred in connection with the review and qualification of the offering of the
Shares by FINRA, (v) all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident
to listing the Shares on the New York Stock Exchange, (vi) the cost of printing certificates
representing the Shares, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to investor presentations on any
“road show” undertaken in connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the preparation or dissemination of any electronic
road show, expenses associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered in connection with the
road show, (ix) the document production charges and expenses associated with printing this
Agreement, (x) all fees and disbursements of counsel incurred by the Underwriters in connection
with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any,
incurred by the Underwriters in connection with the Directed Share Program and (xi) all other costs
and expenses incident to the performance of the
20
obligations of the Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this Section, Section 11 entitled
“Indemnity and Contribution,” Section 12 entitled “Directed Share Program Indemnification” and the
last paragraph of Section 14 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with any offers they may make. Each
Selling Stockholder severally and not jointly covenants and agrees with the Underwriters that (a)
such Selling Stockholder will pay or cause to be paid, all taxes incident to the sale and delivery
of Shares to be sold by such Selling Stockholder to the Underwriters hereunder, and (b) the
underwriting discount associated with Shares sold by such Selling Stockholder hereunder shall be
deducted from such Selling Stockholder’s proceeds from the sale of such Shares.
The provisions of this Section shall not supersede or otherwise affect any agreement that the
Company and the Selling Stockholders may otherwise have for the allocation of such expenses among
themselves.
10. Covenants of the Underwriters. (a) Each Underwriter severally covenants with the Company
not to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.
(b) In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive, each Underwriter severally represents and agrees that with effect from and
including the date on which the Prospectus Directive is implemented in that Member State it has not
made and will not make an offer of Shares to the public in that Member State, except that it may,
with effect from and including such date, make an offer of Shares to the public in that Member
State:
(i) at any time to legal entities which are authorised or regulated to
operate in the financial markets or, if not so authorised or regulated, whose
corporate purpose is solely to invest in securities;
(ii) at any time to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a total
balance sheet of more than €43,000,000 and (3) an annual net turnover of more
than €50,000,000, as set forth in its last annual or consolidated accounts;
or
(iii) at any time in any other circumstances which do not require the
publication by us of a prospectus pursuant to Article 3 of the Prospectus
Directive.
21
For the purposes of the Section 10(b), the expression an “offer of our Shares to the public”
in relation to any Shares in any Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the Shares to be offered so as to enable an
investor to decide to purchase or subscribe the Shares, as the same may be varied in that Member
State by any measure implementing the Prospectus Directive in that Member State and the expression
“Prospectus Directive” means Directive 2003171/EC and includes any relevant implementing measure in
that Member State.
(c) Each Underwriter severally represents and agrees that it has only communicated or caused
to be communicated and will only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of Section 21 of the Financial
Services and Markets Act 2000) in connection with the issue or sale of Shares in circumstances in
which Section 21(1) of such Act does not apply to the Company and it has complied and will comply
with all applicable provisions of such Act with respect to anything done by it in relation to any
Shares in, from or otherwise involving the United Kingdom.
11. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, its officers and directors, each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each
affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and
against any and all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or supplement
thereto, or caused by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any Underwriter furnished
to the Company in writing through the Representatives expressly for use therein.
(b) The Company agrees to indemnify and hold harmless each Selling Stockholder, its officers
and directors, each person, if any, who controls any Selling Stockholder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of
any Selling Stockholder within the meaning of Rule 405 under the Securities Act from and against
any and all losses, claims, damages and liabilities (including, without limitation, any legal
22
or other expenses reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or supplement
thereto, or caused by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any Selling Stockholder
furnished to the Company in writing by or on behalf of such Selling Stockholder expressly for use
therein.
(c) Each Selling Stockholder agrees, severally and not jointly, to indemnify and hold harmless
the Company, the directors of the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company and each Underwriter, its officers and
directors, each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with respect to information
relating to such Selling Stockholder furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto. The liability of each Selling Stockholder under
this Section 11(c) shall be limited to an amount equal to the aggregate net proceeds after
underwriting discounts and commissions, but before expenses, from the sale of the Shares by such
Selling Stockholder under this Agreement.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Selling Stockholders, the directors of the Company, the officers of the Company who
sign the Registration Statement and each person, if any, who controls the Company or any Selling
Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the
23
Exchange Act from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment thereof, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined
in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only with reference to
information relating to such Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement, any preliminary prospectus, the Time
of Sale Prospectus, any issuer free writing prospectus or the Prospectus or any amendment or
supplement thereto.
(e) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 11(a), 11(b),
11(c) or 11(d), such person (the “indemnified party”) shall promptly notify the person against whom
such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the
Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either such Section and (iii) the
fees and expenses of more than one separate firm (in addition to any local counsel) for all Selling
Stockholders and all persons, if any, who control any Selling Stockholder
24
within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons and affiliates of any
Underwriters, such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated. In
the case of any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company. In the case of
any such separate firm for the Selling Stockholders and such control persons of any Selling
Stockholders, such firm shall be designated in writing by the persons named as attorneys-in-fact
for the Selling Stockholders under the Powers of Attorney. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement (x) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such proceeding, and
(y) does not include a statement as to, or an admission of, fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(f) To the extent the indemnification provided for in Section 11(a), 11(b), 11(c) or 11(d) is
unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause 11(f)(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 11(f)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative
25
benefits received by the Sellers on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Shares after underwriting discounts and commissions,
but before expenses, received by each Seller and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the
Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Sellers or by the Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Underwriters’ respective
obligations to contribute pursuant to this Section 11 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint. The liability of each Selling
Stockholder under the contribution agreement contained in this paragraph, taken together with any
amount paid or payable by such Selling Stockholder pursuant to Section 11( ), shall be limited to
an amount equal to the aggregate net proceeds after underwriting discounts and commissions, but
before expenses, from the sale of the Shares by such Selling Stockholder under this Agreement. The
Selling Stockholders’ respective obligations to contribute pursuant to this Section 11( ) are
several in proportion to the net proceeds received by them, respectively, from the sale of Shares
under this Agreement and not joint.
(g) The Sellers and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 11 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in Section 11( ). The amount
paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 11( ) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 11, no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 11 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
26
(h) The indemnity and contribution provisions contained in this Section 11 and the
representations, warranties and other statements of the Company and the Selling Stockholders
contained in this Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter,
any person controlling any Underwriter or any affiliate of any Underwriter, any Selling Stockholder
or any person controlling any Selling Stockholder, or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of the Shares.
12. Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold
harmless Xxxxxx Xxxxxxx, each person, if any, who controls Xxxxxx Xxxxxxx within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of
Xxxxxx Xxxxxxx within the meaning of Rule 405 of the Securities Act (“Xxxxxx Xxxxxxx Entities”)
from and against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in any material prepared by or with the consent of the
Company for distribution to Participants in connection with the Directed Share Program or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the failure of any
Participant to pay for and accept delivery of Directed Shares that the Participant agreed to
purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program,
other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of Xxxxxx Xxxxxxx
Entities.
(b) In case any proceeding (including any governmental investigation) shall be instituted
involving any Xxxxxx Xxxxxxx Entity in respect of which indemnity may be sought pursuant to
Section 12(a), the Xxxxxx Xxxxxxx Entity seeking indemnity, shall promptly notify the Company in
writing and the Company, upon request of the Xxxxxx Xxxxxxx Entity, shall retain counsel reasonably
satisfactory to the Xxxxxx Xxxxxxx Entity to represent the Xxxxxx Xxxxxxx Entity and any others the
Company may designate in such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any Xxxxxx Xxxxxxx Entity shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of
such Xxxxxx Xxxxxxx Entity unless (i) the Company shall have agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include
both the Company and the Xxxxxx Xxxxxxx Entity and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. The
Company shall not, in respect of the legal expenses of the Xxxxxx Xxxxxxx Entities in connection
with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in
27
addition to any local counsel) for all Xxxxxx Xxxxxxx Entities. Any such separate firm for
the Xxxxxx Xxxxxxx Entities shall be designated in writing by Xxxxxx Xxxxxxx. The Company shall
not be liable for any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the Company agrees to
indemnify the Xxxxxx Xxxxxxx Entities from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time a Xxxxxx Xxxxxxx
Entity shall have requested the Company to reimburse it for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the Company agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Company of the aforesaid request
and (ii) the Company shall not have reimbursed the Xxxxxx Xxxxxxx Entity in accordance with such
request prior to the date of such settlement. The Company shall not, without the prior written
consent of Xxxxxx Xxxxxxx, effect any settlement of any pending or threatened proceeding in respect
of which any Xxxxxx Xxxxxxx Entity is or could have been a party and indemnity could have been
sought hereunder by such Xxxxxx Xxxxxxx Entity, unless such settlement includes an unconditional
release of the Xxxxxx Xxxxxxx Entities from all liability on claims that are the subject matter of
such proceeding.
(c) To the extent the indemnification provided for in Section 12(a) is unavailable to a Xxxxxx
Xxxxxxx Entity or insufficient in respect of any losses, claims, damages or liabilities referred to
therein, then the Company in lieu of indemnifying the Xxxxxx Xxxxxxx Entity thereunder, shall
contribute to the amount paid or payable by the Xxxxxx Xxxxxxx Entity as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Xxxxxx Xxxxxxx Entities on the other hand
from the offering of the Directed Shares or (ii) if the allocation provided by clause 12(c)(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 12(c)(i) above but also the relative fault of the
Company on the one hand and of the Xxxxxx Xxxxxxx Entities on the other hand in connection with any
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and the Xxxxxx Xxxxxxx Entities on the other hand in connection with the offering of the
Directed Shares shall be deemed to be in the same respective proportions as the net proceeds from
the offering of the Directed Shares (before deducting expenses) and the total underwriting
discounts and commissions received by the Xxxxxx Xxxxxxx Entities for the Directed Shares, bear to
the aggregate Public Offering Price of the Directed Shares. If the loss, claim, damage or
liability is caused by an untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact, the relative fault of the Company on the one hand and
the Xxxxxx Xxxxxxx Entities on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement or the omission or alleged omission relates
to information supplied by the Company or
28
by the Xxxxxx Xxxxxxx Entities and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(d) The Company and the Xxxxxx Xxxxxxx Entities agree that it would not be just or equitable
if contribution pursuant to this Section 12 were determined by pro rata allocation (even if the
Xxxxxx Xxxxxxx Entities were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in Section 12(c).
The amount paid or payable by the Xxxxxx Xxxxxxx Entities as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by the Xxxxxx Xxxxxxx Entities in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 12, no Xxxxxx Xxxxxxx Entity shall
be required to contribute any amount in excess of the amount by which the total price at which the
Directed Shares distributed to the public were offered to the public exceeds the amount of any
damages that such Xxxxxx Xxxxxxx Entity has otherwise been required to pay. The remedies provided
for in this Section 12 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(e) The indemnity and contribution provisions contained in this Section 12 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Xxxxxx Xxxxxxx Entity or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and payment for any of the
Directed Shares.
13. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the NYSE Amex, the NASDAQ Global Market, the Chicago Board of
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or clearance services in the
United States shall have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (v) there shall have occurred any
outbreak or escalation of hostilities, or any change in financial markets, currency exchange rates
or controls or any calamity or crisis that, in your judgment, is material and adverse and which,
singly or together with any other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms
and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
29
14. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 14 by an
amount in excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to you, the Company and the Firm Selling Stockholders for the
purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter, the Company or the
Selling Stockholders. In any such case either you or the relevant Sellers shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus
or in any other documents or arrangements may be effected. If, on an Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate
number of Additional Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to
purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of any Seller to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any Seller shall be unable to perform its
obligations under this Agreement, the Sellers will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses
30
(including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
15. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other, with respect to the
preparation of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Sellers acknowledge that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company, the Sellers or any other person, (ii) the Underwriters owe the Sellers only those duties
and obligations set forth in this Agreement and prior written agreements (to the extent not
superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ
from those of the Company and one or more of the Sellers. The Sellers waive to the full extent
permitted by applicable law any claims they may have against the Underwriters arising from an
alleged breach of fiduciary duty in connection with the offering of the Shares.
16. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
17. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
18. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
31
19. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you in the care of Xxxxxx Xxxxxxx
& Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with
a copy to the Legal Department and in the care of Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with a copy to the Legal
Department; if to the Company shall be delivered, mailed or sent to GAIN Capital Holdings, Inc.,
Bedminster One, 000 Xxxxx 000/000, Xxxxxxxxxx Xxx Xxxxxx 00000, Attention: Xxxxx Xxxxx, Fax:
000-000-0000 and if to the Selling Stockholders shall be delivered, mailed or sent to c/o GAIN
Capital Holdings, Inc., Bedminster One, 000 Xxxxx 000/000, Xxxxxxxxxx Xxx Xxxxxx 00000, Attention:
Xxxxx Xxxxx, Fax: 000-000-0000.
Signature Pages Follow
32
Very truly yours, GAIN Capital Holdings, Inc. |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to the Underwriting Agreement
33
The Firm Selling Stockholders named in Schedule I hereto, acting severally |
||||
By: | ||||
Attorney-in-Fact | ||||
Signature Page to the Underwriting Agreement
34
The Additional Selling Stockholders named in Schedule III hereto, acting severally |
||||
By: | ||||
Attorney-in-Fact | ||||
Signature Page to the Underwriting Agreement
35
Accepted as of the date hereof | ||||
Xxxxxx Xxxxxxx & Co. Incorporated Deutsche Bank Securities Inc. |
||||
Acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto |
||||
By:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |||
By: |
||||
Title: | ||||
By:
|
Deutsche Bank Securities Inc. | |||
By: |
||||
Title: | ||||
By: |
||||
Title: |
Signature Page to the Underwriting Agreement
36
SCHEDULE I
Number of Firm Shares | ||||
Firm Selling Stockholder | To Be Sold | |||
[NAMES OF FIRM SELLING STOCKHOLDERS] |
||||
Total: |
||||
I-1
SCHEDULE II
Number of Firm Shares | ||||
Underwriter | To Be Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
||||
Deutsche Bank Securities Inc. |
||||
JMP Securities LLC |
||||
Xxxxxxx Xxxxx & Associates, Inc. |
||||
Xxxxxxx X’Xxxxx & Partners, L.P. |
||||
Total: |
||||
II-1
SCHEDULE III
Number of Additional | ||||
Additional Selling Stockholder | Shares To Be Sold | |||
[NAMES OF ADDITIONAL SELLING STOCKHOLDERS] |
||||
Total: |
||||
III-1
SCHEDULE IV
Time of Sale Prospectus
1. | Preliminary Prospectus issued [date] | |
2. | [identify all free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act] | |
3. | [free writing prospectus containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a final term sheet] | |
4. | [orally communicated pricing information to be included on Schedule II if a final term sheet is not used] |
IV-1
EXHIBIT A
FORM OF OPINION OF DLA PIPER LLP
A-1
EXHIBIT B
FORM OF OPINION OF
XXXXXXX XXXXXX XXXXXX & DODGE LLP
XXXXXXX XXXXXX XXXXXX & DODGE LLP
[Insert date here]
[Company]
[Termsheet]
[Termsheet]
[Term]:
|
[Delete this and type here. Please type in a new cell for each new paragraph.] |
B-1
EXHIBIT C
FORM OF OPINION OF LOCAL UK AND JAPAN COUNSELS
C-1
EXHIBIT D
FORM OF OPINION OF LOCAL UK AND JAPAN COUNSELS
D-1
EXHIBIT E
FORM OF LOCK-UP LETTER
[____________], 2010
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc.
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated and Deutsche Bank
Securities Inc. (collectively, the “Representatives”) propose to enter into an Underwriting
Agreement (the “Underwriting Agreement”) with GAIN Capital Holdings, Inc., a Delaware corporation
(the “Company”), providing for the public offering (the “Public Offering”) by the several
Underwriters (the “Underwriters”), of [___] shares (the “Shares”) of the common stock, par value
$0.00001 per share, of the Company (the “Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of the Representatives on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
transactions relating to shares of Common Stock or
E-1
other securities acquired in open market transactions after the completion of the Public
Offering, provided that no filing under Section 16(a) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), shall be required or shall be voluntarily made in connection with
subsequent sales of Common Stock or other securities acquired in such open market transactions, (b)
transfers of shares of Common Stock or any security convertible into Common Stock as a bona fide
gift, or (c) distributions of shares of Common Stock or any security convertible into Common Stock
to limited partners or stockholders of the undersigned; provided that in the case of any transfer
or distribution pursuant to clause (b) or (c), (i) each donee or distributee shall sign and deliver
a lock-up letter substantially in the form of this letter and (ii) no filing under Section 16(a) of
the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be
required or shall be voluntarily made during the restricted period referred to in the foregoing
sentence, or (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act
for the transfer of shares of Common Stock, provided that such plan does not provide for the
transfer of Common Stock during the restricted period. In addition, the undersigned agrees that,
without the prior written consent of the Representatives on behalf of the Underwriters, it will
not, during the period commencing on the date hereof and ending 180 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or exchangeable for Common
Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with
the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of
Common Stock except in compliance with the foregoing restrictions.
If:
(1) during the last 17 days of the restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the restricted
period;
the restrictions imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the occurrence of the material
news or material event.
The undersigned shall not engage in any transaction that may be restricted by this agreement
during the 34-day period beginning on the last day of the initial restricted period unless the
undersigned requests and receives prior written
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confirmation from the Representatives that the restrictions imposed by this agreement have
expired.
The undersigned understands that the Company and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Public Offering. The undersigned further
understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriters.
Very truly yours, |
||||
(Name) | ||||
(Address) | ||||
E-3
EXHIBIT F
LIST OF DIRECTORS, OFFICERS AND STOCKHOLDERS OF THE COMPANY
F-1