EXHIBIT 1.1
ACME PACKET, INC.
COMMON STOCK
-----------------------------------
UNDERWRITING AGREEMENT
____________, 2006
Xxxxxxx, Xxxxx & Co.,
Credit Suisse Securities (USA) LLC,
X.X. Xxxxxx Securities Inc.,
ThinkEquity Partners LLC
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Acme Packet, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
8,000,000 shares and, at the election of the Underwriters, up to an aggregate of
1,721,179 additional shares of common stock, par value $0.01 per share ("Stock")
of the Company and the stockholders of the Company named in Schedule II hereto
(the "Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of 3,474,528 shares. The
aggregate of 8,000,000 shares to be sold by the Company is herein called the
"Firm Shares" and the aggregate of 1,721,179 additional shares to be sold by the
Company is herein called the "Optional Shares". The Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof are
herein collectively called the "Shares".
Credit Suisse Securities (USA) LLC ("Credit Suisse") has agreed to reserve
a portion of the Firm 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 "Underwriting" (such sales are
hereinafter referred to as the "Directed Share Program"). The Firm Shares to be
sold by Credit Suisse and its affiliates (the "Credit Suisse Entities") 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 Pricing
Prospectus.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-134683) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you for
each of the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been initiated
or, to the knowledge of the Company after due inquiry, threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and the
Rule 462(b) Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was declared effective, each as
amended at the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement, if any, became
or hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the Preliminary Prospectus relating to the Shares that
was included in the Registration Statement immediately prior to the Applicable
Time (as defined in Section 1(a)(iii) hereof) is hereinafter called the "Pricing
Prospectus"; such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus"; and any "issuer
free writing prospectus" as defined in Rule 433 under the Act relating to the
Shares is hereinafter called an "Issuer Free Writing Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly
for use therein;
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(iii) For the purposes of this Agreement, the "Applicable Time" is
__:__ pm (Eastern time) on the date of this Agreement. The Pricing Prospectus,
as of the Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to statements or omissions made in the Pricing Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein; and each Issuer Free Writing Prospectus listed on Schedule III hereto
does not conflict with the information contained in the Registration Statement,
the Pricing Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing Prospectus as
of the Applicable Time, did not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement and the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein;
(v) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the Pricing
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and the Pricing Prospectus, there has not been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus;
(vi) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
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personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Pricing 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 materially interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(vii) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Pricing Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction; and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation;
(viii) The Company has an authorized capitalization as set forth in the
Pricing Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and conform to the description of the Stock that is contained in
the Pricing Prospectus and will be contained in the Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and (except
for directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(ix) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform to the
description of the Stock that is contained in the Pricing Prospectus and will be
contained in the Prospectus;
(x) The issue and sale of the Shares to be sold by the Company, the
compliance by the Company with this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Certificate of
Incorporation or Bylaws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such
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court or governmental agency or body is required for the issue and sale of the
Shares to be sold by the Company, or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration under the
Act of the Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters;
(xi) 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 the
Registration Statement or to have such securities otherwise registered by the
Company under the Act, except for rights that have been waived in writing and
except as described in the Registration Statement and the Pricing Prospectus;
(xii) Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation or Bylaws or in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(xiii) The statements that are set forth in the Pricing Prospectus or
will be set forth in the Prospectus under the caption "Description of Capital
Stock", insofar as they purport to constitute a summary of the terms of the
Stock, and under the caption "Underwriting", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are or will be, as
the case may be, accurate, complete and fair;
(xiv) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or future financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries (a "Material Adverse Effect"); and, to the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(xv) The Company is not and, after giving effect to the offering and
sale of the Shares to be sold by the Company and the application of the proceeds
thereof, will not be an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(xvi) The Company was not, at the time of filing the Initial
Registration Statement, and is not an "ineligible issuer," as defined under Rule
405 under the Act;
(xvii) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are an independent public
accounting firm as required by the Act and the rules and regulations of the
Commission thereunder;
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(xviii) The Company maintains a system of internal control over
financial reporting, as such term is defined in Rule 13a-15(f) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that complies
with the requirements of the Exchange Act and has been designed by the Company's
principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The
Company is not aware of any material weaknesses in its internal control over
financial reporting;
(xix) Since the date of the latest audited financial statements
included in the Pricing Prospectus, there has been no change in the Company's
internal control over financial reporting that has materially adversely
affected, or is reasonably likely to materially adversely affect, the Company's
internal control over financial reporting;
(xx) The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the
requirements of the Exchange Act; such disclosure controls and procedures have
been designed to ensure that material information relating to the Company and
its subsidiaries is made known to the Company's principal executive officer and
principal financial officer by others within those entities; and such disclosure
controls and procedures are effective;
(xxi) The Company and its subsidiaries own or have the right to use all
patents, trademarks, service marks, patent applications, trade names,
copyrights, trade secrets, domain names, information, proprietary rights and
processes ("Intellectual Property") necessary for their business as described in
the Pricing Prospectus and, to the Company's knowledge, necessary in connection
with the products and services under development, without any conflict with or
infringement of the interests of others, except for such failures to own or have
rights to use or such conflicts or infringements which, individually or in the
aggregate, have not had and would not reasonably be expected to result in, a
Material Adverse Effect, and have taken reasonable steps necessary to secure
interests in such Intellectual Property and to secure assignment of such
Intellectual Property from its employees and contractors; except as set forth in
the Pricing Prospectus, the Company is not aware of outstanding options,
licenses or agreements of any kind relating to the Intellectual Property of the
Company which are required by the Act or the rules and regulations of the
Commission thereunder to be set forth in the Pricing Prospectus or the
Prospectus, and, except as set forth in the Pricing Prospectus, neither the
Company nor any of its subsidiaries is a party to or bound by any options,
licenses or agreements with respect to the Intellectual Property of any other
person or entity which are required by the Act or the rules and regulations of
the Commission thereunder to be set forth in the Pricing Prospectus or the
Prospectus; none of the Intellectual Property employed by the Company has been
obtained or is being used by the Company or its subsidiaries in violation of any
contractual fiduciary obligation binding on the Company or any of its
subsidiaries or any of its directors or executive officers or, to the Company's
knowledge, any of its employees or otherwise in violation of the rights of any
persons, except for such
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violations which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; except as disclosed in the Pricing
Prospectus, neither the Company nor any of its subsidiaries has received any
written or, to the Company's knowledge, oral communications alleging that the
Company or any of its subsidiaries has violated, infringed or conflicted with,
or, by conducting its business as set forth in the Pricing Prospectus, would
violate, infringe or conflict with any of the Intellectual Property of any other
person or entity other than any such violations, infringements or conflicts
which, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect; and the Company and its subsidiaries have
taken and will maintain reasonable measures to prevent the unauthorized
dissemination or publication of their confidential information and, to the
extent contractually required to do so, the confidential information of third
parties in their possession;
(xxii) The consolidated financial statements of the Company and the
related notes included in the Pricing Prospectus present fairly in all material
respects the consolidated financial position of the Company as of the respective
dates of such financial statements, and the consolidated results of operations
and cash flows of the Company for the respective periods covered thereby; such
statements and related notes have been prepared in accordance with accounting
principles generally accepted in the United States applied on a consistent basis
as certified by Ernst & Young LLP; no other financial statements or schedules
are required by the Act or the rules and regulations of the Commission
thereunder to be included in the Registration Statement; the Pricing Prospectus
or the Prospectus, and the selected financial data set forth in the Pricing
Prospectus under the captions "Prospectus Summary--Summary Consolidated
Financial Data," "Capitalization" and "Selected Consolidated Financial Data"
fairly present in all material respects the information set forth therein on the
basis stated in the Registration Statement and the Pricing Prospectus;
(xxiii) The Company and its subsidiaries (A) are in compliance with any
and all applicable U.S. 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");
(B) have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses as described in the Prospectus; (C) have not received
notice of any actual or potential liability of any of them under any
Environmental Law; and (D) have not received notice of actually or potentially
being named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended,
except in each case where such non-compliance with Environmental Laws, failure
to receive or comply with required permits, licenses or other approvals,
liability or status as a potentially responsible party would not reasonably be
expected to have a Material Adverse Effect; and
(xxiv) The Company has not offered, or caused any of the Credit Suisse
Entities to offer, Directed Shares to any person with the specific intent of
unlawfully influencing (A) a customer or supplier of the Company to alter the
customer's or supplier's level or type of business with the Company or (B) a
trade journalist or publication to write or publish favorable information about
the Company or its products.
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(b) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement and the
Power of Attorney and the Custody Agreement hereinafter referred to, and for the
sale and delivery of the Firm Shares to be sold by such Selling Stockholder
hereunder, have been obtained; such Selling Stockholder has full right, power
and authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement and to sell, assign, transfer and deliver the Firm Shares to
be sold by such Selling Stockholder hereunder; and this Agreement has been duly
executed and delivered by or on behalf of such Selling Stockholder.
(ii) The sale of the Firm Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement, the Power of Attorney and the Custody Agreement
and the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the property or assets of such Selling Stockholder is subject,
nor will such action result in any violation of the provisions of the charter or
by-laws of such Selling Stockholder if such Selling Stockholder is a
corporation, the partnership agreement of such Selling Stockholder if such
Selling Stockholder is a partnership, or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
such Selling Stockholder or the property of such Selling Stockholder;
(iii) Such Selling Stockholder has, and immediately prior to the each
Time of Delivery (as defined in Section 4 hereof) such Selling Stockholder will
have, good and valid title to the Firm Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances, equities or
claims; and, upon delivery of such Firm Shares and payment therefor pursuant
hereto, good and valid title to such Firm Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several Underwriters;
(iv) Such Selling Stockholder has duly executed and delivered to the
Company, for further delivery to the Underwriters, a Lock-up Agreement in the
form heretofore furnished by you, the terms of which Lock-up Agreement are
incorporated by reference in this Agreement as if set forth herein.
(v) Such Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the
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Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use therein,
such Preliminary Prospectus, the Pricing Prospectus and the Registration
Statement did, and the Prospectus, any further amendments or supplements to the
Registration Statement and the Prospectus, and any Issuer Free Writing
Prospectus, when they become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and did not or
will not (as the case may be) contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated, such Selling
Stockholder will deliver to you prior to or at the First Time of Delivery (as
hereinafter defined) 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);
(viii) Certificates in negotiable form representing all of the Firm
Shares to be sold by such Selling Stockholder hereunder have been placed in
custody under a Custody Agreement, in the form heretofore furnished to you (the
"Custody Agreement"), duly executed and delivered by such Selling Stockholder to
the Company, as custodian (the "Custodian"), and such Selling Stockholder has
duly executed and delivered a Power of Attorney, in the form heretofore
furnished to you (the "Power of Attorney"), appointing Xxxxxx X. Xxx, Xxxxxxx X.
XxXxxxx and Xxxxx Xxxxxxx, and each of them, as such Selling Stockholder's
attorneys in fact (the "Attorneys in Fact") with authority to execute and
deliver this Agreement on behalf of such Selling Stockholder, to determine the
purchase price to be paid by the Underwriters to the Selling Stockholders as
provided in Section 2 hereof, to authorize the delivery of the Firm Shares to be
sold by such Selling Stockholder hereunder and otherwise to act on behalf of
such Selling Stockholder in connection with the transactions contemplated by
this Agreement and the Custody Agreement; and
(ix) The Firm Shares represented by the certificates held in custody
for such Selling Stockholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder; the arrangements made by such Selling
Stockholder for such custody, and the appointment by such Selling Stockholder of
the Attorneys in Fact by the Power of Attorney, are to that extent irrevocable;
the obligations of the Selling Stockholders hereunder shall not be terminated by
operation of law, whether by the death or incapacity of any individual Selling
Stockholder or, in the case of an estate or trust, by the death or incapacity of
any executor or trustee or the termination of such estate or trust, or in the
case of a partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if any individual Selling
Stockholder or any such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if any such
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partnership or corporation should be dissolved, or if any other such event
should occur, before the delivery of the Firm Shares to be sold by such Selling
Stockholder hereunder, certificates representing the Firm Shares to be sold by
such Selling Stockholder hereunder shall be delivered by or on behalf of the
Selling Stockholders in accordance with the terms and conditions of this
Agreement and of the Custody Agreements; and actions taken by the Attorneys in
Fact pursuant to the Powers of Attorney shall be as valid as if such death,
incapacity, termination, dissolution or other event had not occurred, regardless
of whether or not the Custodian, the Attorneys in Fact, or any of them, shall
have received notice of such death, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Selling Stockholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Stockholders,
at a purchase price per share of $_____ the number of Firm Shares (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
the aggregate number of Shares to be sold by the Company and each of the Selling
Stockholders as set forth opposite their respective names in Schedule II hereto
by a fraction, the numerator of which is the aggregate number of Firm Shares to
be purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the aggregate
number of Firm Shares to be purchased by all of the Underwriters from the
Company and all of the Selling Stockholders hereunder and (b) in the event and
to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of Optional Shares as to which
such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 1,721,179 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Shares, PROVIDED that the purchase price
per Optional Share shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the Firm
Shares but not payable on the Optional Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or,
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unless you and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Attorneys in Fact shall be delivered by or on
behalf of the Company and the Selling Stockholders to Xxxxxxx, Sachs & Co.,
through the facilities of the Depository Trust Company ("DTC"), for the account
of such Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company and the Custodian to Xxxxxxx, Xxxxx & Co. at
least forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on _________, 2006 or such
other time and date as Xxxxxxx, Sachs & Co., the Company and the Selling
Stockholders may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York City time, on the date specified by Xxxxxxx, Xxxxx &
Co. in the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and date as
Xxxxxxx, Xxxxx & Co. and the Company may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the cross
receipt for the Shares and any additional documents reasonably requested by the
Underwriters pursuant to Section 8(k) hereof, will be delivered at the offices
of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Closing Location"), and the Shares will be delivered
at the Designated Office, all at such Time of Delivery. A meeting will be held
at the Closing Location at 2:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this
Agreement, "New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive order to close.
11
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or the Prospectus
prior to the last Time of Delivery which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus
has been filed and to furnish you with copies thereof; to file promptly all
material required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other
prospectus in respect of the Shares, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or other prospectus or suspending any such qualification,
to promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares (including the Directed Shares) for
offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Shares, PROVIDED that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with written and electronic copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the delivery
of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many written and electronic copies as you may
from time to time reasonably request
12
of an amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many written and electronic copies as you may
request of an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than sixteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus (the "Lock-Up
Period"), not to offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose, except as provided
hereunder, of any securities of the Company that are substantially similar to
the Shares, including but not limited to any options or warrants to purchase
shares of Stock or any securities that are convertible into or exchangeable for,
or that represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible securities outstanding as of, the
date of this Agreement), without the prior written consent of Xxxxxxx, Xxxxx &
Co.; PROVIDED, HOWEVER, that if (1) during the last 17 days of the initial
Lock-Up Period, the Company releases earnings results or announces material news
or a material event or (2) prior to the expiration of the initial Lock-Up
Period, the Company announces that it will release earnings results during the
15-day period following the last day of the initial Lock-Up Period, then in each
case the Lock-Up Period will be automatically extended until the expiration of
the 18-day period beginning on the date of release of the earnings results or
the announcement of the material news or material event, as applicable, unless
Xxxxxxx, Sachs & Co. waives, in writing, such extension; the Company will
provide Xxxxxxx, Xxxxx & Co. and each stockholder named in Schedule IV hereto,
in connection with the Lock-Up Agreement delivered by such stockholder as
contemplated by Section 8(i), with prior notice of any such announcement that
gives rise to an extension of the Lock-up Period;
(f) To furnish to its stockholders as soon as practicable after the end
of each fiscal year an annual report (including a balance sheet and statements
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
13
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Pricing Prospectus
under the caption "Use of Proceeds";
(i) To use its best efforts to list for quotation the Shares on the
Nasdaq Stock Market Inc.'s Global Market ("NASDAQ");
(j) To file with the Commission such information on Form 10-Q or Form
10-K as may be required by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), to file a Rule
462(b) Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and at the
time of filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act; and
(l) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, service marks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); PROVIDED, HOWEVER, that the License
shall be used solely for the purpose described above, is granted without any fee
and may not be assigned or transferred.
6. (a) Each of the Company and the Selling Stockholders represents and
agrees that, without the prior consent of Xxxxxxx, Sachs & Co., it has not
made and will not make any offer relating to the Shares that would constitute
a "free writing prospectus" as defined in Rule 405 under the Act, it being
understood that no such representation is made with respect to any of the
articles identified in the final risk factor under "Risk Factors" in the
Pricing Prospectus and the Prospectus; each Underwriter represents and agrees
that, without the prior consent of the Company and Xxxxxxx, Xxxxx & Co., it
has not made and will not make any offer relating to the Shares that would
constitute a free writing prospectus; and any such free writing prospectus
the use of which has been consented to by the Company and Xxxxxxx, Sachs &
Co. is listed on Schedule III hereto;
(b) The Company has complied and will comply with the requirements of
Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending; and the
14
Company represents that it has satisfied and agrees that it will satisfy the
conditions under Rule 433 under the Act to avoid a requirement to file with the
Commission any electronic road show; and
(c) Each of the Company and the Selling Stockholders agrees that if at
any time following issuance of an Issuer Free Writing Prospectus any event
occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus or would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances then prevailing, not
misleading, the Company will, and the Selling Stockholders, to the extent
applicable, will take such action as is within their power to cause the Company
to, give prompt notice thereof to Xxxxxxx, Xxxxx & Co. and, if requested by
Xxxxxxx, Sachs & Co., will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will
correct such conflict, statement or omission; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions in an
Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the registration of
the Shares under the Act and all other expenses in connection with the
preparation, printing, reproduction and filing of the Registration Statement,
any Preliminary Prospectus, the Prospectus and any Issuer Free Writing
Prospectus, and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on NASDAQ; and the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (v) the cost of preparing stock certificates;
(vi) the cost and charges of any transfer agent or registrar; (vii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section 7; and (viii)
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. Each Selling Stockholder covenants and agrees with the
several Underwriters that such Selling Stockholder will pay or cause to be paid
all costs and expenses incident to the performance of such Selling Stockholder's
obligations hereunder which are not otherwise specifically provided for in this
Section, including (i) any fees and expenses of
15
counsel for such Selling Stockholder, (ii) such Selling Stockholder's pro rata
share of the fees and expenses of the Attorneys in Fact and the Custodian and
(iii) all expenses and taxes incident to the sale and delivery of the Firm
Shares to be sold by such Selling Stockholder to the Underwriters hereunder. In
connection with clause (iii) of the preceding sentence, Xxxxxxx, Sachs & Co.
agrees to pay New York State stock transfer tax, and the Selling Stockholder
agrees to reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs if such
tax payment is not rebated on the day of payment and for any portion of such tax
payment not rebated. It is understood, however, that the Company shall bear, and
the Selling Stockholders shall not be required to pay or to reimburse the
Company for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement and that, except as provided
in this Section, and Sections 9, 10 and 13 hereof, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, any advertising expenses
connected with any offers they may make, and one-half of all aircraft charter
expenses incurred in connection with road show presentations to prospective
purchasers of the Shares.
8. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and, with respect to the First Time of Delivery, the Selling
Stockholders herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company and, with respect to the First Time of Delivery,
the Selling Stockholders shall have performed all of their respective
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; all material required to be filed by the Company pursuant
to Rule 433(d) under the Act shall have been filed with the Commission within
the applicable time period prescribed for such filing by Rule 433; if the
Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been initiated
or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the
Underwriters, shall have furnished to you such written opinion or opinions,
dated such Time of Delivery, in form and substance satisfactory to you, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
16
(c) Xxxxxxx XxXxxxxxx LLP, counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery,
substantially in the form attached as Annex II(a) hereto;
(d) With respect to the First Time of Delivery, the respective counsel
for each of the Selling Stockholders, as indicated in Schedule II hereto, each
shall have furnished to you their written opinion with respect to each of the
Selling Stockholders for whom they are acting as counsel (a draft of each such
opinion is attached as Annex II(b) hereto), dated the First Time of Delivery, in
form and substance satisfactory to you to the effect that:
(i) A Power-of-Attorney and a Custody Agreement have been duly
authorized, executed and delivered by such Selling Stockholder and constitute
valid and binding agreements of such Selling Stockholder in accordance with
their terms;
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder; and the sale of the Firm
Shares to be sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this Agreement, the
Power-of-Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any terms or provisions of, or constitute a default
under, any statute, or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument either filed as an exhibit to the Registration
Statement or set forth on a schedule to such opinion, nor will such action
result in any violation of the provisions of the Certificate of Incorporation or
By-laws of such Selling Stockholder if such Selling Stockholder is a
corporation, the Partnership Agreement of such Selling Stockholder if such
Selling Stockholder is a partnership or any order, rule or regulation known to
such counsel of any court or governmental agency or body having jurisdiction
over such Selling Stockholder or the property of such Selling Stockholder;
(iii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated by this Agreement in connection with the Firm Shares to be sold by
such Selling Stockholder hereunder, such as have been obtained under the Act and
such as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of such Firm Shares by the Underwriters;
(iv) Immediately prior to the First Time of Delivery, such Selling
Stockholder had good and valid title to the Firm Shares to be sold at the First
Time of Delivery by such Selling Stockholder under this Agreement, free and
clear of all liens, encumbrances, equities or claims, and full right, power and
authority to sell, assign, transfer and deliver the Firm Shares to be sold by
such Selling Stockholder hereunder; and
(v) Good and valid title to such Firm Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred to each of the
several Underwriters who have purchased such Firm Shares in good faith and
without notice of
17
any such lien, encumbrance, equity or claim or any other adverse claim within
the meaning of the Massachusetts Uniform Commercial Code.
In rendering the opinion in paragraph (iv), such counsel may rely upon a
certificate of such Selling Stockholder in respect of matters of fact as to
ownership of, and liens, encumbrances, equities or claims on, the Firm Shares
sold by such Selling Stockholder, PROVIDED that such counsel shall state that
they believe that both you and they are justified in relying upon such
certificate.
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Ernst & Young LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a draft of the
form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus, and (ii) since the
respective dates as of which information is given in the Pricing Prospectus
there shall not have been any change in the capital stock (other than pursuant
to the conversion or exercise of securities outstanding as of the date of this
Agreement) or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries (taken as a whole), otherwise
than as set forth or contemplated in the Pricing Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in your judgment so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at such Time
of Delivery on the terms and in the manner contemplated in the Pricing
Prospectus and the Prospectus;
(g) On or after the Applicable Time there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or NASDAQ; (ii) a suspension
or material limitation in trading in the Company's securities on NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York or Massachusetts state authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v) in your judgment
makes it impracticable
18
or inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been duly
listed for quotation on NASDAQ;
(i) The Company shall have obtained and delivered to you executed
copies of an agreement from each stockholder of the Company named in Schedule IV
hereto, including each of the Selling Stockholders, a Lock-up Agreement in a
form heretofore furnished by you;
(j) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(k) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company satisfactory to you and certificates of each of the Selling
Stockholders as to the accuracy of the representations and warranties herein of
the Company and such Selling Stockholder, respectively, at and as of such Time
of Delivery, as to the performance by the Company and such Selling Stockholder,
respectively, of all of their respective obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (f) of this Section and as to such other matters as you may reasonably
request.
9. (a) The Company will indemnify and hold harmless each Underwriter
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 (i) an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any "issuer
information" filed or required to be filed pursuant to Rule 433(d) under the
Act, (ii) 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, or (iii) any of the matters described in the final risk factor under
"Risk Factors" contained in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto (including any matter relating to the Company's participation
in, or posting or other distribution of, any of the articles identified in such
risk factor), and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing
19
Prospectus, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein.
(b) Each of the Selling Stockholders will indemnify and hold harmless
each Underwriter 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 an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing 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, 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 the Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any such amendment or supplement, or
any Issuer Free Writing Prospectus in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder
expressly for use therein; and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that such Selling Stockholder shall 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
or omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any such
amendment or supplement, or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx, Sachs & Co. or by any other Selling Stockholder
expressly for use therein; and PROVIDED FURTHER, that the liability of any
Selling Stockholder pursuant to this subsection (b) shall not exceed the product
of the number of Firm Shares sold by such Selling Stockholder and the initial
public offering price of the Shares set forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or each 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 an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus,
or any amendment or supplement thereto, or any Issuer Free Writing 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, 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 the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter
20
through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will reimburse the
Company and each Selling Stockholder for any legal or other expenses reasonably
incurred by the Company or such Selling Stockholder in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim 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 any indemnified party.
(e) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party under subsection (a), (b) or (c) above, as applicable, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholders on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
21
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. 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 or the Selling
Stockholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (e) were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in 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 such action or claim. 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 Shares 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)
no Selling Stockholder shall be required to contribute any amount in excess of
the amount by which (A) the product of the number of Firm Shares sold by such
Selling Stockholder and the initial public offering price of the Shares set
forth in the Prospectus exceeds (B) the amount of any damages which such Selling
Stockholder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section 9 shall be in addition to any liability which the Company and the
respective Selling Stockholders 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 each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 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 officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
10. (a) The Company will indemnify and hold harmless each of the Credit
Suisse Entities against any losses, claims, damages or liabilities, joint or
several, to
22
which such Credit Suisse Entity 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 (i) an 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) any action taken
by the Company or any employee, officer or other representative of the Company
in connection with the identification of potential Participants or the offering
of Directed Shares to Participants, (iii) the failure of any Participant (other
than any Participant that is a Credit Suisse Entity) to pay for and accept
delivery of Directed Shares that the Participant agreed to purchase, or (iv) 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 such Credit Suisse Entity,
and will reimburse each of the Credit Suisse Entities for any legal or other
expenses reasonably incurred by such Credit Suisse Entity in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(b) Promptly after receipt by any Credit Suisse Entity under subsection
(a) above of notice of the commencement of any action, such Credit Suisse Entity
shall, if a claim in respect thereof is to be made against the Company under
such subsection, notify the Company in writing of the commencement thereof; but
the omission so to notify the Company shall not relieve it from any liability
which it may have to such Credit Suisse Entity otherwise than under such
subsection. In case any such action shall be brought against any Credit Suisse
Entity and it shall notify the Company of the commencement thereof, the Company
shall be entitled to participate therein and, to the extent that it shall wish,
to assume the defense thereof, with counsel satisfactory to such Credit Suisse
Entity (who shall not, except with the consent of such Credit Suisse Entity, be
counsel to the Company), and, after notice from the Company to such Credit
Suisse Entity of its election so to assume the defense thereof, the Company
shall not be liable to such Credit Suisse Entity under such subsection for any
legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such Credit Suisse Entity, in connection with the defense thereof
other than reasonable costs of investigation. The Company shall not, without the
written consent of the indemnified Credit Suisse Entity, effect the settlement
or compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not such Credit Suisse Entity
is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of such Credit
Suisse Entity from all liability arising out of such action or claim 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 Credit Suisse.
(c) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless any Credit Suisse Entity under
subsection (a) above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then the Company shall
contribute to the amount paid or payable by such Credit Suisse Entity as a
result of such losses, claims, damages or liabilities (or
23
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Credit Suisse
Entities on the other from the offering of the Directed Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified Credit Suisse Entity failed to give the
notice required under subsection (b) above, then the Company shall contribute to
such amount paid or payable by such Credit Suisse Entity in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Credit Suisse Entities on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Credit Suisse Entities on the other in
connection with the offering of the Directed Shares shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Directed
Shares (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Credit Suisse Entities
with respect to the Directed Shares, in each case as set forth in the table on
the cover page of the Prospectus. 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 on the one hand or the Credit
Suisse Entities on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Credit Suisse Entities agree that it would not be just and
equitable if contribution pursuant to this subsection (c) were determined by PRO
RATA allocation (even if the Credit Suisse Entities were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(c). The amount paid or payable by any Credit Suisse Entity as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (c) shall be deemed to include any legal or other
expenses reasonably incurred by such Credit Suisse Entity in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (c), no Credit Suisse 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 which such Credit Suisse Entity has otherwise been
required to pay.
(d) The obligations of the Company under this Section 10 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Credit Suisse Entity within the meaning of the Act and each broker-dealer
affiliate of any Credit Suisse Entity.
11. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company and the Selling Stockholders shall be entitled to a further
period of thirty-six hours within
24
which to procure another party or other parties satisfactory to you to purchase
such Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company and the Selling Stockholders that you have so
arranged for the purchase of such Shares, or the Company and the Selling
Stockholder notify you that they have so arranged for the purchase of such
Shares, you or the Company and the Selling Stockholders shall have the right to
postpone such Time of Delivery for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees, and the Selling Stockholders agree to take
such action as is within its power to cause the Company, to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Stockholders as provided in subsection (a) above, the aggregate number
of such Shares which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Stockholders as provided in subsection (a) above, the aggregate number
of such Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Company to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company or the
Selling Stockholders, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 7 hereof and the indemnity and contribution
agreements in Sections 9 and 10 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of
25
any Underwriter or any controlling person of any Underwriter, the Company or any
officer, director or controlling person of the Company, or any of the Selling
Stockholders or any officer, director or controlling person of any of the
Selling Stockholders, and shall survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 7, 9 and 10 hereof;
but, if for any other reason, any Shares are not delivered by or on behalf of
the Company and the Selling Stockholders as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but neither the Company nor the Selling
Stockholders shall then be under any further liability to any Underwriter except
as provided in Sections 7, 9 and 10 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with the Selling Stockholders hereunder,
you and the Company shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Selling Stockholder made or given
by any or all of the Attorneys in Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Registration Department; if to any of the Credit Suisse Entities in connection
with the Directed Share Program shall be delivered or sent by mail, telex or
facsimile transmission to _______________; if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Secretary; and if to any of
the Selling Stockholders shall be delivered or sent by mail, telex or facsimile
transmission to ______________; PROVIDED, HOWEVER, that any notice to an
Underwriter pursuant to Section 9(d) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request; PROVIDED, HOWEVER,
that notices under subsection 5(e) shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission
to you as the representatives at Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Control Room. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, the Selling Stockholders and, to the extent
provided in Sections 9, 10 and 12 hereof, the officers and directors of the
Company and each person who controls the Company, any Underwriter or any Selling
Stockholder, and
26
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely because of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. The Company and the Selling Stockholders acknowledge and agree that (a)
the purchase and sale of the Shares pursuant to this Agreement is an
arm's-length commercial transaction among the Company, the Selling Stockholders
and the several Underwriters, (b) in connection therewith and with the process
leading to such transaction, each Underwriter is acting solely as a principal
and not the agent or fiduciary of the Company or any Selling Stockholder, (c) no
Underwriter has assumed an advisory or fiduciary responsibility in favor of the
Company or any Selling Stockholder with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company or any Selling Stockholder on
other matters) or any other obligation to the Company or any Selling Stockholder
except the obligations expressly set forth in this Agreement and (d) each of the
Company and the Selling Stockholders has consulted its own legal and financial
advisors to the extent it deemed appropriate. Each of the Company and the
Selling Stockholders agrees that it will not claim that the Underwriters, or any
of them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty, to the Company or such Selling Stockholder in
connection with such transaction or the process leading thereto.
18. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company, the Selling Stockholders and the
Underwriters, or any of them, with respect to the subject matter hereof.
19. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
20. The Company, each of the Selling Stockholders and each of the
Underwriters hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
21. This Agreement may be executed by any one or more of the parties hereto
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 instrument.
22. Notwithstanding anything herein to the contrary, the Company and the
Selling Stockholders are authorized to disclose to any persons the U.S. federal
and state income tax treatment and tax structure of the potential transaction
and all materials of any kind (including tax opinions and other tax analyses)
provided to the Company and the Selling Stockholders relating to that treatment
and structure, without the Underwriters imposing any limitation of any kind.
However, any information relating to the tax treatment and tax structure shall
remain confidential (and the foregoing
27
sentence shall not apply) to the extent necessary to enable any person to comply
with securities laws. For this purpose, "tax structure" is limited to any facts
that may be relevant to that treatment.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters, each of the
Selling Stockholders and the Company. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Stockholders for examination upon
request, but without warranty on your part as to the authority of the signers
thereof. Any person executing and delivering this Agreement as Attorney in Fact
for the Selling Stockholders represents by so doing that he has been duly
appointed as Attorney in Fact by each of the Selling Stockholders pursuant to a
validly existing and binding Power-of-Attorney that authorizes such Attorney in
Fact to take such action.
Very truly yours,
ACME PACKET, INC.
By: ...................................
Name:
Title:
SELLING STOCKHOLDERS NAMED IN
SCHEDULE II TO THIS AGREEMENT
By: ...................................
Name:
As Attorney in Fact
Accepted as of the date hereof:
XXXXXXX, XXXXX & Co.
CREDIT SUISSE SECURITIES (USA) LLC
X.X. XXXXXX SECURITIES INC.
THINKEQUITY PARTNERS LLC
By: ..............................................
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
28
