EXHIBIT 1.1
9,100,000 SHARES
ULTRA CLEAN HOLDINGS, INC.
COMMON STOCK, PAR VALUE $0.001 PER SHARE
UNDERWRITING AGREEMENT
_____________, 2004
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
XXXXX XXXXXXX & CO.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Ultra Clean Holdings, Inc., a Delaware corporation
("COMPANY"), proposes to issue and sell to the several Underwriters named in
Schedule A hereto ("UNDERWRITERS") 7,000,000 shares of its common stock, par
value $0.001 per share ("SECURITIES") and FP-Ultra Clean, LLC, a Delaware
limited liability company (the "SELLING STOCKHOLDER"), proposes to sell to the
several Underwriters 2,100,000 outstanding shares of the Securities (such
9,100,000 shares of Securities being hereinafter referred to as the "FIRM
SECURITIES"). The Selling Stockholder also proposes to sell to the Underwriters,
at the option of the Underwriters, not more than 1,365,000 additional
outstanding shares of the Securities as set forth below (such 1,365,000 shares
of Securities being hereinafter referred to as the "OPTIONAL SECURITIES"). The
Firm Securities and the Optional Securities are herein collectively called the
"OFFERED SECURITIES". The Company and the Selling Stockholder hereby agree with
the several Underwriters as follows:
2. Representations and Warranties of the Company and the Selling
Stockholder. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-111904) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A) has
been declared effective under the Securities Act of 1933 ("ACT") and is
not proposed to be amended or (B) is proposed to be amended by amendment
or post-effective amendment. If such registration statement ("INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement ("ADDITIONAL REGISTRATION STATEMENT")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("RULE 462(B)") under the Act and, if so filed,
has become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing
the Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement.
If the Company does not propose to amend the initial registration
statement or the additional registration statement (if any), or if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(C)") under the
Act or, in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(A) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) or, in the case of the
additional registration statement, Rule 462(b), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time
as of which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as amended
at its Effective Time, including the contents of the Initial Registration
Statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as
of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration Statement are hereinafter
referred to collectively as the "REGISTRATION STATEMENTS" and individually
as a "REGISTRATION STATEMENT". The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(B)") under the Act or (if no such
filing is required) as included in a Registration Statement, is
hereinafter referred to as the "PROSPECTUS". No document has been or will
be prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all material
respects to the requirements of the Act and the Rules and Regulations and
did not include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement (if any) is prior to the execution and delivery of
this Agreement, the Additional Registration Statement each conforms, and
at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional
Registration Statement (if any) in which the Prospectus is included, each
Registration Statement will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and neither such
Registration Statement includes, nor will it include, any untrue statement
of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and (D) at the time of the filing of the Prospectus
pursuant to Rule 424(b), or if no such filing is required, at the
Effective Time of the Registration Statement in which the Prospectus is
included, the Prospectus will conform in all material respects with the
requirements of the Act and the Rules and Regulations and will not include
any untrue
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statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: (A) on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement will
conform in all material respects to the requirements of the Act and the
Rules and Regulations and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; (B) at
the time of the filing of the Prospectus pursuant to Rule 424(b), or if no
such filing is required, at the Effective Time of the Registration
Statement in which the Prospectus is included, the Prospectus will conform
in all material respects with the requirements of the Act and the Rules
and Regulations and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and (C) no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to
the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification except where the failure to so
qualify or to be in good standing would not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and the Subsidiary (as hereinafter defined)
taken as a whole ("MATERIAL ADVERSE EFFECT"). The only state in which the
Company owns or leases property or conducts its business is California.
(iv) Ultra Clean Technology Systems and Service, Inc., a California
corporation ("SUBSIDIARY"), is the only subsidiary of the Company. The
Subsidiary has been duly incorporated and is an existing corporation in
good standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification except where the failure to so
qualify or to be in good standing would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; all
of the issued and outstanding capital stock of the Subsidiary has been
duly authorized and validly issued and is fully paid and nonassessable;
and the capital stock of the Subsidiary owned by the Company is owned free
from liens, encumbrances and defects in title. The only states in which
the Subsidiary owns or leases property or conducts its business are Oregon
and Texas.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered Securities
will have been, validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the
Securities.
(vi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
(vii) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities being
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registered pursuant to any other registration statement filed by the
Company under the Act that have not been validly waived or satisfied prior
to the date hereof.
(viii) The Offered Securities have been approved for listing on The
Nasdaq Stock Market's National Market subject to notice of issuance.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and such
as may be required under state securities or Blue Sky laws.
(x) The execution, delivery and performance of this Agreement, and
the issuance and sale of the Offered Securities will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under (A) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or the Subsidiary or any of their
properties, (B) any agreement or instrument to which the Company or the
Subsidiary is a party or by which the Company or the Subsidiary is bound
or to which any of the properties of the Company or the Subsidiary is
subject, or (C) the charter or by-laws of the Company or the Subsidiary,
except, in the case of (A) or (B), where such breach, violation or default
would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect; and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) Except as disclosed in the Prospectus, the Company and the
Subsidiary have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects in title that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by
them; and except as disclosed in the Prospectus, the Company and the
Subsidiary hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(xiii) The Company and the Subsidiary possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them, except
where the lack thereof would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect, and have not received
any notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined adversely to
the Company or the Subsidiary, would reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or the
Subsidiary exists or, to the knowledge of the Company, is imminent except
as would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(xv) The Company and the Subsidiary own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, except where the failure to own, possess or acquire such
intellectual property rights would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, and
have not received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights that, if
determined adversely to the Company or the Subsidiary, would reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect.
(xvi) Except as disclosed in the Prospectus, neither the Company nor
the Subsidiary is in violation of any statute, rule, regulation, decision
or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or
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restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or claim
would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or the
Subsidiary or any of their respective properties that, if determined
adversely to the Company or the Subsidiary, would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are, to the Company's knowledge, threatened
or contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly in all material respects the
financial position of the Company and the Subsidiary on a consolidated
basis as of the dates shown and their results of operations and cash flows
for the periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis.
(xix) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
the Subsidiary taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(xx) The Company is, or if the Effective Time of the Initial
Registration Statement is after the date hereof, as of such Effective Time
the Company will be, subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
will file reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (XXXXX) system.
(xxi) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(xxii) The Company and the Subsidiary maintain systems of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (C)
access to assets is permitted only in accordance with management's general
or specific authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any difference.
(xxiii) The Company (A) has notified each holder of a currently
outstanding option or share of capital stock, as the case may be, issued
under the Company's Amended and Restated 2003 Stock Incentive Plan (the
"PLAN"), and each person who has acquired Securities pursuant to the
exercise of any option granted under the Plan that pursuant to the terms
of the Plan, that none of such options or shares may be sold or otherwise
transferred or disposed of for a period of 180 days after the date of the
initial public offering of the Offered Securities and (B) has imposed a
stop-transfer instruction with the Company's transfer agent in order to
enforce the foregoing lock-up provision imposed pursuant to the Plan.
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(xxiv) Except as disclosed in the Prospectus, all outstanding
Securities, and securities convertible into or exercisable or exchangeable
for Securities, are subject to valid and binding agreements (collectively,
"Lock-up Agreements") that restrict the holders thereof from offering to
sell, selling, contracting to sell, pledging or otherwise disposing of,
directly or indirectly, any shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, entering
into a transaction which would have the same effect, or entering into any
swap, hedge or other arrangement that transfers, in whole or in part, any
of the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclosing the intention to make any such offer, sale, pledge or
disposition, or entering into any such transaction, swap, hedge or other
arrangement for a period of 180 days after the date of the Prospectus
without the prior written consent of Credit Suisse First Boston LLC
("CSFB").
(xxv) No forward-looking statement (within the meaning of Section
27A of the Act and Section 21E of the Exchange Act) contained in the
Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(xxvi) The Company is, or if the Effective Time of the Initial
Registration Statement is after the date hereof, as of such Effective Time
the Company will be, in compliance with the currently effective applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations
promulgated thereunder or in connection therewith.
(b) The Selling Stockholder represents and warrants to, and agrees with,
the several Underwriters that:
(i) The Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered Securities
to be delivered by the Selling Stockholder on such Closing Date and full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities to be delivered by the
Selling Stockholder on such Closing Date hereunder; and upon the delivery
of and payment for the Offered Securities on each Closing Date hereunder
the several Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by the Selling Stockholder on such
Closing Date.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, neither such Registration
Statement includes, nor will it include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading and (D) at the time of the filing of the Prospectus pursuant to
Rule 424(b), or if no such filing is required, at the Effective Time of
the Registration Statement in which the Prospectus is included, the
Prospectus will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement will not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading; and (B) at the time of the filing of the Prospectus pursuant
to Rule 424(b), or if no such filing is required, at the Effective Time of
the Registration Statement in which the Prospectus is included, the
Prospectus will not include any untrue statement of a
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material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(c).
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Selling Stockholder and any
person that would give rise to a valid claim against the Selling
Stockholder or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and the Selling Stockholder
agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
the Selling Stockholder, at a purchase price of $ per share, the number of Firm
Securities set forth below the caption "Company" or "Selling Stockholder", as
the case may be, and opposite the name of such Underwriter in Schedule A hereto.
The Company and the Selling Stockholder will deliver the Firm Securities
to the Representatives for the accounts of the Underwriters, against payment of
the purchase price in Federal (same day) funds by wire transfer to an account
acceptable to each of the Company and CSFB drawn to the order of the Company, in
the case of payment to the Company for 7,000,000 shares of Firm Securities, and
to an account acceptable to each of the Selling Stockholder and CSFB drawn to
the order of the Selling Stockholder, in the case of payment to the Selling
Stockholder for 2,100,000 shares of Firm Securities, in each case at the office
of Xxxxx Xxxx & Xxxxxxxx, 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx, at 10:00
A.M., New York time, on , 2004, or at such other time not later than seven full
business days thereafter as CSFB and the Company determine, such time being
herein referred to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date (if later than
the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The Firm Securities will be in such denominations and
registered in such names as CSFB requests.
In addition, upon written notice from CSFB given to the Company and the
Selling Stockholder from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholder agrees to sell to the Underwriters the
number of shares of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the number of shares of Firm Securities
set forth opposite such Underwriter's name bears to the total number of shares
of Firm Securities (subject to adjustment by CSFB to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFB to the Company and the Selling
Stockholder.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFB
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Selling Stockholder will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by wire
transfer to an account acceptable to each of the Selling Stockholder and CSFB
drawn to the order of the Selling Stockholder, at the office of Xxxxx Xxxx &
Xxxxxxxx, 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx. The Optional Securities
being purchased on each Optional Closing Date will be in such denominations and
registered in such names as CSFB requests.
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4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder. The
Company agrees with the several Underwriters and the Selling Stockholder that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFB,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFB promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred
as of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b)
on or prior to 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFB.
(b) The Company will advise CSFB promptly of any proposal to amend
or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFB's consent, which
consent shall not be unreasonably withheld; and the Company will also
advise CSFB promptly of the effectiveness of each Registration Statement
(if its Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment of or supplement to a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and will
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFB of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFB's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (five (5) of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
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case in such quantities as CSFB reasonably requests. The Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement. All other
documents shall be so furnished as soon as available. The Company will pay
the expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFB
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) The Company and the Selling Stockholder agree with the several
Underwriters that the Company and the Selling Stockholder will pay all
expenses incident to the performance of the obligations of the Company or
the Selling Stockholder, as the case may be, under this Agreement, for any
filing fees and other expenses (including fees and disbursements of
counsel) incurred in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFB
designates and the printing of memoranda relating thereto, for the filing
fee incident to the review by the National Association of Securities
Dealers, Inc. of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings, including the cost of any
aircraft chartered in connection with attending or hosting such meetings,
for any transfer taxes on the sale by the Selling Stockholder of the
Offered Securities to the Underwriters with prospective purchasers of the
Offered Securities, and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
(h) For a period of 180 days after the date of the Prospectus, the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares of
its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFB; provided that the foregoing
shall not apply to (i) issuances of Securities pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise of
options, in each case outstanding on the date hereof, (ii) grants of
employee stock options pursuant to the terms of a plan in effect on the
date hereof and disclosed in the Prospectus, (iii) issuances of Securities
pursuant to an employee stock purchase plan in effect on the date hereof
and disclosed in the Prospectus, (iv) the filing of a registration
statement on Form S-8, or (v) issuances of up to $15,000,000 in shares of
Securities in connection with an acquisition or acquisitions and the
registration thereof under the Act provided that the recipients of any
such Securities issued pursuant to this clause (v) agree to be bound by
the foregoing terms.
(i) For a period of 180 days after the date of the Prospectus, the
Selling Stockholder will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any additional shares of the
Securities or securities convertible into or exchangeable or exercisable
for any shares of Securities, enter into a transaction which would have
the same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Securities, whether any such aforementioned transaction
is to be settled by delivery of the Securities or such other securities,
in cash or otherwise, or publicly disclose the intention to make any such
offer, sale, pledge or disposition, or enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of CSFB; provided that the foregoing shall not apply to any sale
of Optional Securities to the Underwriters in accordance with Section 3
hereof. In addition, the Selling Stockholder agrees that, without the
prior written consent of CSFB, it will not, for a period of 180 days after
the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any Securities or any security convertible
into or exercisable or exchangeable for the Securities.
(j) Unless otherwise instructed by CSFB, the Company will (i)
enforce the terms of each Lock-up Agreement, and (ii) issue stop-transfer
instructions to the transfer agent for the Securities with respect to any
transaction or contemplated transaction that would constitute a breach of
or default under the applicable Lock-
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up Agreement. In addition, except with the prior written
consent of CSFB, the Company agrees (i) not to amend or terminate, or
waive any right under, any Lock-up Agreement, or take any other action
that would directly or indirectly have the same effect as an amendment or
termination, or waiver of any right under any Lock-up Agreement, that
would permit any holder of Securities, or any securities convertible into,
or exercisable or exchangeable for, Securities, to make any short sale of,
grant any option for the purchase of, or otherwise transfer or dispose of,
any such Securities or other securities, prior to the expiration of the
180 days after the date of the Prospectus and (ii) not to consent to any
sale, short sale, grant of an option for the purchase of, or other
disposition or transfer of shares of Securities, or securities convertible
into or exercisable or exchangeable for Securities, subject to a Lock-up
Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholder herein, to the
accuracy of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company and the Selling Stockholder
of their obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Deloitte Touche LLP
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
(i) [in their opinion the financial statements examined by
them and included in the Registration Statements comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 100, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published Rules
and Regulations or any material modifications should be
made to such unaudited financial statements for them to
be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified
date not more than three business days prior to the date
of this Agreement, there was any change in the capital
stock or any increase in short-term or long-term debt of
the Company and the Subsidiary or, at the date of the
latest available balance sheet read by such accountants,
there was any decrease in consolidated net current
assets (working capital) or total assets or
stockholders' equity at the Company and the Subsidiary,
as compared with amounts shown on the latest balance
sheet included in the Prospectus; or
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(C) for the period from the closing date of the latest
income statement included in the Prospectus to the
closing date of the latest available income statement
read by such accountants there were any decreases, as
compared with the corresponding period of the previous
year and with the period of corresponding length ended
the date of the latest income statement included in the
Prospectus, in consolidated net sales, net operating
income in the total or per share amounts of consolidated
income before extraordinary items or net income,
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and the
Subsidiary subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter. ]
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution and
delivery, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be
filed or as proposed to be amended by the post-effective amendment to be
filed shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall
mean the prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFB. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by CSFB. If
the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and the
Subsidiary taken as one enterprise which, in the judgment of a majority in
interest of the Underwriters including CSFB, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities;
(ii) any downgrading in the rating of any debt securities of the Company
by any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading,
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and no implication of a possible downgrading, of such rating); (iii) any
change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Underwriters including CSFB,
be likely to prejudice materially the success of the proposed issue, sale
or distribution of the Offered Securities, whether in the primary market
or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange or The Nasdaq National Market, or any setting
of minimum prices for trading on such exchange; (v) or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by U.S.
Federal or New York authorities; (vii) any major disruption of settlements
of securities or clearance services in the United States; or (viii) any
attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters including CSFB, the effect
of any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Company, to the
effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation and is in good standing in the State of
California;
(ii) The Subsidiary is validly existing as a corporation in
good standing under the laws of the State of California, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the
Subsidiary is duly qualified to do business as a foreign
corporation and is in good standing in the States of Oregon
and Texas; all of the issued and outstanding capital stock of
the Subsidiary has been duly authorized and validly issued and
is fully paid and nonassessable; and the capital stock of the
Subsidiary is owned by the Company free and clear of all
perfected security interests and, to the knowledge of such
counsel, any other security interests, liens, encumbrances and
defects in title;
(iii) The outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully
paid and nonassessable; the Offered Securities have been duly
and validly authorized and when issued and delivered to and
paid for by the Underwriters under this Agreement will be
fully paid and nonassessable; the capital stock of the Company
conforms in all material respects to the description thereof
contained in the Prospectus; and the holders of outstanding
shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Offered
Securities under (A) the Company's certificate of
incorporation or bylaws, or (B) the contracts or agreements
filed as exhibits to the Registration Statement [and such
other contracts or agreements as are listed on a schedule to
the opinion];
(iv) Except as described in the Prospectus, there are no
contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the
right to require the Company to file a registration statement
under the Act with respect to any securities of the Company or
to require the Company to include such securities with the
Offered Securities registered pursuant to the Registration
Statement;
(v) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be required to register as an "investment
company" as defined in the Investment Company Act of 1940;
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(vi) No consent, approval, authorization or order of, or
qualification with, any governmental agency or body or any
court under the United States federal or New York state law
that in the experience of such counsel is normally applicable
to general business corporations in relation to transactions
of the type contemplated under this Agreement is required to
be obtained or made by the Company for the performance of its
obligations under this Agreement, except such as have been
obtained and made under the Act and such as may be required
under state securities and Blue Sky laws;
(vii) To such counsel's knowledge, there are no pending
actions, suits or proceedings against or affecting the
Company, the Subsidiary or any of their respective properties
that, if determined adversely to the Company or the
Subsidiary, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the
context of the sale of the Offered Securities; and no such
actions, suits or proceedings are, to such counsel's
knowledge, threatened or contemplated;
(viii) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement and the consummation of the transactions
contemplated herein will not contravene any provision of
applicable United States federal or New York state law that in
the experience of such counsel is normally applicable to
general business corporations in relation to transactions of
the type contemplated under this Agreement, or the certificate
of incorporation or bylaws of the Company or the Subsidiary,
or any agreement filed as an exhibit to the Registration
Statement [or any agreement listed on a schedule to the
opinion]; and the Company has full power and authority to
authorize, issue and sell the Offered Securities as
contemplated by this Agreement;
(ix) The Initial Registration Statement was declared effective
under the Act, the Additional Registration Statement (if any)
was filed and became effective under the Act under, any filing
of the Prospectus and any supplement(s) thereto, pursuant to
Rule 424(b) under the Act, has been made in the manner and
within the time period required and, to the knowledge of such
counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations;
(x) The statements set forth under the heading "Description of
Capital Stock," "Related Party Transactions -- Relationship
with Francisco Partners," and "Material U.S. Federal Tax
Considerations for Non-U.S. Holders of Common Stock" in the
Prospectus, insofar as such statements constitute a summary of
the statutes, rules, regulations, legal matters, documents or
proceedings referred to therein, have been reviewed by such
counsel and fairly present the information called for with
respect to such statutes, rules, regulations, legal matters,
documents and proceedings in all material respects as required
by the Act and the rules and regulations thereunder; and
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
In addition to the matters set forth above, counsel rendering the
foregoing opinion shall also include a statement to the effect that such
counsel has participated in conferences with representatives of the
Company
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and with representatives of the Company's independent accountants at which
conferences the contents of the Registration Statements and the Prospectus
and any amendments and supplements thereto and related matters were
discussed, and, such counsel has no reason to believe that any part of a
Registration Statement or any amendment thereto (except for the financial
statements or other financial data contained therein, as to which such
counsel need express no belief), as of its effective date or as of such
Closing Date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for the financial statements or
other financial data contained therein, as to which such counsel need
express no belief), as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(e) The Representatives shall have received an opinion, dated such
Closing Date, from Xxxxx Xxxx & Xxxxxxxx, counsel for the Selling
Stockholder, to the effect that:
(i) The Selling Stockholder has valid title to, or a valid
security entitlement in respect of, the Securities to be sold
by it free and clear of all perfected security interests and,
to the knowledge of such counsel, any other security
interests, liens, encumbrances and defects in title; delivery
of stock certificates representing the Securities, endorsed to
the Underwriters and payment therefor pursuant to this
Agreement will pass valid title to such Securities, free and
clear of any adverse claim within the meaning of Section 8-102
of the New York Uniform Commercial Code, to each Underwriter
who has purchased such Securities without notice of an adverse
claim;
(ii) No consent, approval, authorization or order of, or
qualification with, any governmental agency or body or any
court under the United States federal or New York state law
that in the experience of such counsel is normally applicable
to general business corporations or limited liability
companies in relation to transactions of the type contemplated
under this Agreement is required to be obtained or made by the
Selling Stockholder for the performance of its obligations
under this Agreement, except such as have been obtained and
made under the Act and such as may be required under state
securities and Blue Sky laws;
(iii) The execution and delivery by the Selling Stockholder
of, and the performance by the Selling Stockholder of its
obligations under, this Agreement and the consummation of the
transactions contemplated herein, have been duly authorized on
the part of the Selling Stockholder and will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, the limited liability company
agreement of the Selling Stockholder; and
(iv) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder.
(f) The Representatives shall have received from Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Underwriters,
such opinion or opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
delivered on such Closing Date, the Registration Statements, the
Prospectus and other related matters as the Representatives may require,
and the Selling Stockholder and the Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated
such Closing Date, of the Chief Executive Officer and Chief Financial
Officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true
and correct; the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date; no stop order suspending the
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effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter; and, subsequent
to the date of the most recent financial statements in the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and the Subsidiary taken as a whole except as set forth in the
Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated such
Closing Date, of Deloitte Touche LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(i) On or prior to the date of this Agreement, the Representatives
shall have received lockup letters from each of the executive officers and
directors of the Company and the holders of all of the outstanding
Securities and securities convertible into or exercisable or exchangeable
for Securities.
(j) The Selling Stockholder will deliver to CSFB a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(k) No Underwriter shall have notice of an adverse claim on the
Offered Securities within the meaning of Section 8-102 of the New York
Uniform Commercial Code.
The Selling Stockholder and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFB may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors and officers
and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished copies thereof to such
Underwriter.
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(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter, its partners, members, directors and officers and each person
who controls such Underwriter within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Selling
Stockholder will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by an Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection
(c) below; and provided further that the liability of FP-Ultra Clean, LLC
under this subsection (b) shall be limited to an amount equal to the gross
proceeds after deducting underwriting discounts and commissions but before
deducting expenses, to the Selling Stockholder from the sale of the
Offered Securities hereunder.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act,
and the Selling Stockholder and each person, if any, who controls the
Selling Stockholder within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities to which the Company or the
Selling Stockholder may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company
and the Selling Stockholder in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting" and the information contained in the sixth, fourteenth and
fifteenth paragraphs under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under subsection (a), (b) or (c) above, notify the
indemnifying party of the commencement thereof; but the failure to notify
the indemnifying party shall not relieve it from any liability that it may
have under subsection (a), (b) or (c) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided further that the failure
to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection
(a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section, as the case may be, for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. In
no event shall the indemnifying party be liable for the
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fees and expenses of more than one counsel, except for any local counsel,
to the indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
Selling Stockholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and
the Selling Stockholder bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Stockholder or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (e) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), (i) no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission and (ii) the Selling Stockholder shall not be required to
contribute any amount in excess of the gross proceeds after deducting
underwriting discounts and commissions but before deducting expenses, to
the Selling Stockholder from the sale of the Offered Securities hereunder.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder under
this Section shall be in addition to any liability which the Company and
the Selling Stockholder may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters
under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of
the Company who has signed a Registration Statement and to each person, if
any, who controls the Company or the Selling Stockholder within the
meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFB may
make arrangements satisfactory to the Company and the Selling Stockholder for
the purchase of such Offered
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Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFB, the Company
and the Selling Stockholder for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholder, except as provided in Section 10 (provided
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholder shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling Stockholder
and the Underwriters pursuant to Section 7 shall remain in effect, and if any
Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c), the Company and the
Selling Stockholder will, jointly and severally, reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or faxed and confirmed to the
Representatives, c/o Credit Suisse First Boston LLC, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: Transactions Advisory Group, fax: (212)
000-0000 or, if sent to the Company, will be mailed, delivered or faxed and
confirmed to it at 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000, Attention:
Xxxxxxxx X. Xxxxxxx, fax: (000) 000-0000, with a copy to Xxxxx Xxxx & Xxxxxxxx,
0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, XX 00000, Attention: Xxxx X. Xxxxxxxxx, Esq.,
fax: (000) 000-0000; or if sent to the Selling Stockholder, will be mailed,
delivered or faxed and confirmed to it at 0000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxx
Xxxx, XX 00000, fax: (000) 000-0000; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or faxed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by the Representatives
jointly or by CSFB will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
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The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
[The remainder of this page is intentionally left blank]
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If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company, the
Selling Stockholder and the several Underwriters in accordance with its terms.
Very truly yours,
ULTRA CLEAN HOLDINGS, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
FP-ULTRA CLEAN, LLC
By: _______________________________
Name: _____________________________
Title: ____________________________
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
XXXXX XXXXXXX & CO.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By CREDIT SUISSE FIRST BOSTON LLC
By: ______________________________________________________
Name: ______________________________________________________
Title: ______________________________________________________
SCHEDULE A
NUMBER OF FIRM SECURITIES
TO BE SOLD BY TOTAL NUMBER OF FIRM
----------------------------- SECURITIES
SELLING TO BE
UNDERWRITER COMPANY STOCKHOLDER PURCHASED
----------- ------- ----------- ---------
Credit Suisse First Boston LLC............................
X.X. Xxxxxx Securities Inc. ..............................
Banc of America Securities LLC............................
Xxxxx Xxxxxxx & Co. ......................................
------- ----------- ---------
Total.......................................... ======= =========== =========
