1
EXHIBIT 1.1
Shares
Common Stock
($ Par Value)
UNDERWRITING AGREEMENT
March 29, 1999
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UNDERWRITING AGREEMENT
March 29, 1999
WARBURG DILLON READ LLC,
as Managing Underwriter
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Cypress Semiconductor Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell and the persons named in Schedule A annexed hereto
(the "Selling Stockholders") propose to sell to you as underwriter (the
"Underwriter") an aggregate of shares (the "Firm Shares") of Common Stock, $.01
par value (the "Common Stock"), of the Company, of which shares are to be issued
and sold by the Company and an aggregate of shares are to be sold by the Selling
Stockholders in the respective amounts set forth under the caption "Firm Shares"
in Schedule B annexed hereto. In addition, solely for the purpose of covering
over-allotments, the Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional shares of Common Stock (the
"Additional Shares"). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the "Shares." The Shares are described in
the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively
called the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, (File No. 333-67203)
including a prospectus, relating to the Shares, which incorporates by reference
documents which the Company has filed or will file in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act"). The Company has
furnished to you , for use by the Underwriter and by dealers, copies of one or
more preliminary prospectuses and the documents incorporated by reference
therein (each thereof, including the documents incorporated therein by
reference, being herein called a "Preliminary Prospectus") relating to the
Shares. Except where the context otherwise requires, the registration statement,
as amended when it becomes effective, including all documents filed as a part
thereof or incorporated by reference therein, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A under
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the Act and also including any registration statement filed pursuant to Rule
462(b) under the Act, is herein called the Registration Statement, and the
prospectus, including all documents incorporated therein by reference, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after the date hereof (or such earlier
time as may be required under the Act) or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the time it
became effective, is herein called the Prospectus.
The Company, the Selling Stockholders and the Underwriter agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth: (i)
the Company agrees to sell to the Underwriter and the Underwriter agrees to
purchase from the Company ___________ Firm Shares at a purchase price of $ per
Share; and (ii) each of the Selling Stockholders, severally and not jointly,
agrees to sell to the Underwriter and the Underwriter agrees to purchase from
such Selling Stockholder the respective number of Firm Shares set forth opposite
the name of such Selling Stockholder in Schedule A annexed hereto, in each case
at a purchase price of $ per Share. The Underwriter intends (i) to make a public
offering of the Firm Shares as soon after the date hereof as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the Underwriter the option to
purchase, and upon the basis of the warranties and representations and subject
to the terms and conditions herein set forth, the Underwriter shall have the
right to purchase, from the Company all or a portion of the Additional Shares as
may be necessary to cover over-allotments made in connection with the offering
of the Firm Shares, at the same purchase price per share to be paid by the
Underwriters to the Company for the Firm Shares. This option may be exercised by
you at any time (but not more than once) on or before the thirtieth day
following the date hereof, by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised, and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the additional time of
purchase); provided, however, that the additional time of purchase shall not be
earlier than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company and the Selling Stockholders by Federal
Funds wire
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transfer, against delivery of the certificates for the Firm Shares to you
through the facilities of the Depository Trust Company ("DTC") for the account
of the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New
York City time, on April __, 1999 (unless another time shall be agreed to by
you, the Company and the Selling Stockholders or unless postponed in accordance
with the provisions of Section 10 hereof). The time at which such payment and
delivery are actually made is hereinafter sometimes called the time of purchase.
Certificates for the Firm Shares shall be delivered to you in definitive form in
such names and in such denominations as you shall specify no later than the
second business day preceding the time of purchase. For the purpose of
expediting the checking of the certificates for the Firm Shares by you, the
Company and the Selling Stockholders agree to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall be made at
the additional time of purchase in the same manner and at the same office as the
payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the additional
time of purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by you, the Company agree to make such certificates
available to you for such purpose at least one full business day preceding the
additional time of purchase.
3. Representations and Warranties of the Company. The Company represents
and warrants to the Underwriter that:
(a) the Company has not received, and has no notice of, any order of
the Commission preventing or suspending the use of any Preliminary Prospectus,
or instituting proceedings for that purpose, and each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the Act; when the Registration Statement becomes effective, the
Registration Statement and the Prospectus will fully comply in all material
respects with the provisions of the Act, and the Registration Statement will 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 not
misleading, and the Prospectus will 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 light of the circumstances under
which they were made, not misleading; any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement have
been so described or filed;
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provided, however, that the Company makes no warranty or representation with
respect to any statement contained in the Registration Statement or the
Prospectus in reliance upon and in conformity with information concerning the
Underwriter and furnished in writing by or on behalf of the Underwriter through
you to the Company expressly for use in the Registration Statement or the
Prospectus; the documents incorporated by reference in the Prospectus, at the
time they were filed with the Commission, complied in all material respects with
the requirements of the Exchange Act, and do 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 light of the circumstances under
which they were made, not misleading and the Company has not distributed any
offering material in connection with the offering or sale of the Shares other
than the Registration Statement, the Preliminary Prospectus, the Prospectus or
any other materials, if any, permitted by the Act;
(b) as of the date of this Agreement, the Company has an authorized
capitalization as set forth under the heading entitled "Actual" in the section
of the Registration Statement and the Prospectus entitled "Capitalization" and,
as of the time of purchase the Company shall have an authorized capitalization
as set forth under the heading entitled "As Adjusted" in the section of the
Registration Statement and the Prospectus entitled "Capitalization"; all of the
issued and outstanding shares of capital stock including Common Stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable, have been issued in compliance with all federal and state
securities laws and were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right;
(c) 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
full power and authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement;
(d) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or leasing
of its properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a material adverse effect
on the business, properties, financial condition or results of operation of the
Company and its Subsidiaries (as hereinafter defined) taken as a whole (a
"Material Adverse Effect"). The Company has no subsidiaries (as defined in the
Rules and Regulations) other than the entities listed on Exhibit 21.1 to the
Company's
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Annual Report on Form 10-K for the fiscal year ended January 3, 1999
(collectively, the "Subsidiaries"); other than the Subsidiaries, the Company
does not own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in any
firm, partnership, joint venture, association or other entity; complete and
correct copies of the certificates of incorporation and of the bylaws of the
Company and the Subsidiaries and all amendments thereto have been delivered to
you, and except as set forth in the exhibits to the Registration Statement no
changes therein will be made subsequent to the date hereof and prior to the
Closing Date; each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement; each Subsidiary is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or leasing
of the properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a Material Adverse Effect;
all of the outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and non-assessable and
(except as otherwise described in this Section 3(d)) are owned by the Company
subject to no security interest, other encumbrance or adverse claims; no
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligation into shares of capital stock
or ownership interests in the Subsidiaries are outstanding.
(e) neither the Company nor any of its Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of
time, or both would result in any breach of, or constitute a default under) its
respective charter or by-laws or in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which any of them or any
of their properties is bound, and the execution, delivery and performance of
this Agreement, the issuance and sale of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, or result in any breach
of or constitute a default under (nor constitute any event which with notice,
lapse of time, or both would result in any breach of, or constitute a default
under) any provisions of the charter or by-laws, of the Company or any of its
Subsidiaries or under any provision of any license, indenture, mortgage, deed of
trust, bank loan or credit
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agreement or other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which any of them or their respective properties may be bound or
affected, or under any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the Company or any of its
Subsidiaries;
(f) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms;
(g) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and Prospectus and the certificates for the Shares are in
due and proper form and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(h) the Shares 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;
(i) no approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the issuance and sale of the
Shares or the consummation by the Company of the transaction as contemplated
hereby other than registration of the Shares under the Act and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters or under the rules and
regulations of the National Association of Securities Dealers, Inc. (the
"NASD");
(j) no person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of capital
stock of the Company upon the issue and sale of the Shares to the Underwriter
hereunder, nor does any person have preemptive rights, co-sale rights, rights of
first refusal or other rights to purchase any of the Shares other than those
that have been expressly waived prior to the dates hereof;
(k) PricewaterhouseCoopers LLP, whose reports on the consolidated
financial statements of the Company and its Subsidiaries are filed with the
Commission as part of the Registration Statement and Prospectus, are independent
public accountants as required by the Act;
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(l) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law, regulation or
rule, and has obtained all necessary authorizations, consents and approvals from
other persons, in order to conduct its respective business; neither the Company
nor any of its Subsidiaries is in violation of, or in default under, any such
license, authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment applicable to
the Company or any of its Subsidiaries the effect of which could have a Material
Adverse Effect;
(m) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required;
(n) there are no actions, suits, claims, investigations or
proceedings pending or threatened to which the Company or any of its
Subsidiaries or any of their respective officers is a party or of which any of
their respective properties is subject at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency which could result in a judgment, decree or order
having a Material Adverse Effect or consummation of the transaction contemplated
hereby;
(o) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial position
of the Company and its Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and its
Subsidiaries for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis during the periods involved;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been: (i)
any material adverse change, or any development which, in the Company's
reasonable judgment, is likely to cause a material adverse change, in the
business, properties or assets described or referred to in the Registration
Statement, or the results of operations, condition (financial or otherwise),
business or operations of the Company and its Subsidiaries taken as a whole;
(ii) any transaction which is material to the Company or its Subsidiaries,
except transactions in the ordinary course of business; (iii) any obligation,
direct or contingent, which is material to
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the Company and its Subsidiaries taken as a whole, incurred by the Company or
its Subsidiaries, except obligations incurred in the ordinary course of
business; (iv) any change in the capital stock or outstanding indebtedness of
the Company or its Subsidiaries; or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company; neither the Company
nor its Subsidiaries has any material contingent obligation which is not
disclosed in the Registration Statement;
(q) the Company has obtained the agreement of each of its directors
and its five highest-paid officers not to sell, offer to sell, contract to sell,
hypothecate grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to purchase Common
Stock for a period of 30 days after the date of the Prospectus; and
(r) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
4. Representations and Warranties of the Selling Stockholder. Each
Selling Stockholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) such Selling Stockholder, at the time of delivery thereof, will
be the lawful owner of the number of Shares to be sold by such Selling
Stockholder pursuant to this Agreement and, at the time of delivery thereof,
will have valid and marketable title to such Shares, and upon delivery of and
payment for such Shares (whether at the time of purchase or the additional time
of purchase, as the case may be), the Underwriters will acquire valid and
marketable title to such Shares free and clear of any claim, lien, encumbrance,
security interest, community property right, restriction on transfer or other
defect in title;
(b) such Selling Stockholder has and at the time of delivery of such
Shares will have, full legal right, power and capacity, and any approval
required by law (other than those imposed by the Act and the securities or blue
sky laws of certain jurisdictions), to sell, assign, transfer and deliver such
Shares in the manner provided in this Agreement;
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(c) when the Registration Statement becomes effective and at all
times subsequent thereto through the time of purchase or the termination of the
offering of the Shares, the Registration Statement and Prospectus, and any
supplements or amendments thereto, insofar as the statements therein relate to
such Selling Stockholder, will 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 not misleading;
(d) such Selling Stockholder has duly executed and delivered this
Agreement and any other document necessary or desirable in connection with the
transactions contemplated thereby; and
(e) the sale of such Selling Stockholder's Shares pursuant to this
Agreement is not prompted by any information concerning the Company which is not
set forth in the Prospectus.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states as you may designate and to maintain such
qualifications in effect so long as required for the distribution of the Shares;
provided that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(b) to make available to the Underwriter in New York City, as soon as
practicable after the Registration Statement becomes effective, and thereafter
from time to time to furnish to the Underwriter, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the Company shall
have made any amendments or supplements thereto after the effective date of the
Registration Statement) as the Underwriter may request for the purposes
contemplated by the Act; in the Underwriter is required to deliver a prospectus
within the nine-month period referred to in Section 10(a)(3) of the Act in
connection with the sale of the Shares, the Company will prepare promptly upon
request, but at the expense of the Underwriter, such amendment to the
Registration Statement and such
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prospectuses as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become effective and
when any post-effective amendment thereto becomes effective and (ii) if Rule
430A under the Act is used, when the Prospectus is filed with the Commission
pursuant to Rule 424(b) under the Act (which the Company agrees to file in a
timely manner under such Rules);
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or Prospectus or for additional information with respect thereto, or
of notice of institution of proceedings for, or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting or
removal of such order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement or Prospectus
including by filing any documents that would be incorporated therein by
reference and to file no such amendment or supplement to which you shall object
in writing;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the Commission in
order to comply with the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in connection with
the offering or sale of the shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriter promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to the
Shares is required to be delivered under the Act which, in the judgment of the
Company, would require the making of any change in the Prospectus then being
used, or in the information incorporated therein by reference, so that the
Prospectus would not include an untrue statement of material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading, and, during such
time, to prepare and furnish, at the Company's expense, to the Underwriter
promptly
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such amendments or supplements to such Prospectus as may be necessary to reflect
any such change and to furnish you a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the Commission;
(h) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of 12 months beginning
after the effective date of the Registration Statement (as defined in Rule
158(c) of the Act) as soon as is reasonably practicable after the termination of
such 12-month period;
(i) to furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and of cash flow of the Company for
such fiscal year, accompanied by a copy of the certificate or report thereon of
nationally recognized independent certified public accountants;
(j) to furnish to you two signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by reference
therein);
(k) to furnish to you as early as practicable prior to the time of
purchase, but not later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements, if any, of
the Company and its Subsidiaries which have been read by the Company's
independent certified public accountants, as stated in their letter to be
furnished pursuant to Section 8(c) hereof;
(l) to furnish to you, before filing with the Commission subsequent
to the effective date of the Registration Statement and during the period
referred to in paragraph (e) above, a copy of any document proposed to be filed
pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(m) not to sell, offer or agree to sell, contract to sell, grant any
option to sell or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable or exercisable for
Common Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock or
permit the registration under the Act of any shares of Common Stock, except for
the registration of the Shares and the sales to the Underwriter pursuant to this
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Agreement and except for issuances of Common Stock upon the exercise of
outstanding options, warrants and debentures, for a period of 30 days after the
date hereof, without your prior written consent; and
(n) to use its best efforts to cause the Shares to be listed on the
New York Stock Exchange.
6. Certain Covenants of the Company and the Selling Stockholder. The
Company and each of the Selling Stockholder agree with the Underwriter as
follows:
(a) the Company will pay all expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the Underwriter except
as set forth under Section 7 hereof or (iii) or (iv) below) in connection with
(i) the preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the issuance, sale and
delivery of the Shares by the Company and the Selling Stockholders, (iii) the
word processing and/or printing of this Agreement, any dealer agreements, any
Statements of Information and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriter and to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering and
sale under state laws and the determination of their eligibility for investment
under state law as aforesaid (including the legal fees and filing fees and other
disbursements of counsel to the Underwriter) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the Underwriter
and to dealers, (v) any listing of the Shares on any securities exchange and any
registration thereof under the Exchange Act, (vi) the filing for review of the
public offering of the Shares by the NASD, and (vii) the performance of the
Company's and the Selling Stockholders' other obligations hereunder; and
(b) the Company will not issue, sell, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable for Common Stock or warrants or
other rights to purchase Common Stock or permit the registration under the Act
of any shares of Common Stock, except for the registration of the Shares and the
sales to the Underwriter pursuant to this Agreement and except for issuances of
Common Stock in connection with acquisitions of other companies or upon the
exercise of outstanding options, warrants and debentures, for a period of 30
days after the date of the Prospectus, without your prior written consent.
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7. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 10 hereof or the default by the
Underwriter in its obligations hereunder, the Company shall, in addition to
paying the amounts described in Section 6(a) hereof, reimburse the Underwriter
for all of its out-of-pocket expenses, including the fees and disbursements of
its counsel.
8. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholder on the date
hereof and at the time of purchase (and the obligations of the Underwriter at
the additional time of purchase are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof and
at the time of purchase (unless previously waived) and at the additional time of
purchase, as the case may be), the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Wilson,
Sonsini, Xxxxxxxx & Xxxxxx, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of purchase,
as the case may be, and in form satisfactory to Xxxxxx, Xxxx & Xxxxxxxx LLP,
counsel for the Underwriters, stating that:
(i) 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 full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement
and the Prospectus, to execute and deliver this Agreement and to issue, sell and
deliver the Shares as herein contemplated;
(ii) each of the Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation with full corporate power and authority
to own, lease and operate its respective properties and to conduct its
respective business;
(iii) the Company and its Subsidiaries are duly qualified or
licensed by each jurisdiction in which they conduct their respective businesses
and in which the failure, individually or in the aggregate, to be so licensed or
qualified could have a Material Adverse Effect and the Company and its
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Subsidiaries are duly qualified, and are in good standing, in each jurisdiction
in which they own or lease real property or maintain an office and in which such
qualification is necessary;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Shares have been duly authorized and, when issued and
delivered to and paid for by the Underwriters, will be duly and validly and
issued and will be fully paid and non-assessable;
(vi) the Company has an authorized capitalization as set forth in
the Registration Statement and the Prospectus; the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued, and are
fully paid, nonassessable and free of statutory and contractual preemptive
rights; the Shares when issued will be free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and similar rights;
the certificates for the Shares are in due and proper form and the holders of
the Shares will not be subject to personal liability by reason of being such
holders;
(vii) other than the Subsidiaries, the Company does not own or
control, directly or indirectly, any corporation, association or other entity;
each Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement; each Subsidiary is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or leasing
of the properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a Material Adverse Effect;
all of the outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and non-assessable and,
except as otherwise stated in the Registration Statement, are owned by the
Company, in each case subject to no security interest, other encumbrance or
adverse claim; to the best of such counsel's knowledge, no options, warrants or
other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or ownership
interests in the Subsidiaries are outstanding;
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(viii) the capital stock of the Company, including the Shares,
conforms to the description thereof contained in the Registration Statement and
Prospectus;
(ix) the Registration Statement and the Prospectus (except as to
the financial statements and schedules and other financial and statistical data
contained or incorporated by reference therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act;
(x) the Registration Statement has become effective under the
Act and, to the best of such counsel's knowledge, no stop order proceedings with
respect thereto are pending or threatened under the Act and any required filing
of the Prospectus and any supplement thereto pursuant to Rule 424 under the Act
has been made in the manner and within the time period required by such Rule
424;
(xi) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and sale
of the Shares and consummation by the Company of the transactions contemplated
hereby other than registration of the Shares under the Act (except such counsel
need express no opinion as to any necessary qualification under the state
securities or blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriter);
(xii) the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not conflict with, or result in any breach
of, or constitute a default under (nor constitute any event which with notice,
lapse of time, or both, would result in any breach of or constitute a default
under), any provisions of the charter or by-laws of the Company or any of its
Subsidiaries or under any provision of any license, indenture, mortgage, deed of
trust, bank loan, credit agreement or other evidence of indebtedness, or any
lease, contract or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order applicable to
the Company or any of its Subsidiaries;
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(xiii) to the best of such counsel's knowledge, neither the
Company nor any of its Subsidiaries is in violation of its charter or by-laws or
is in breach of, or in default under (nor has any event occurred which with
notice, lapse of time, or both would result in any breach of, or constitute a
default under), any license, indenture, mortgage, deed of trust, bank loan or
any other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their respective properties
may be bound or affected or under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the Company or
any of its Subsidiaries;
(xiv) to the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character which are
required to be filed as exhibits to the Registration Statement or to be
summarized or described in the Prospectus which have not been so filed,
summarized or described;
(xv) to the best of such counsel's knowledge, there are no
actions, suits, claims, investigations or proceedings pending, threatened or
contemplated to which the Company or any of its Subsidiaries is subject or of
which any of their respective properties, is subject at law or in equity or
before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which are required to be described
in the Prospectus but are not so described;
(xvi) the documents incorporated by reference in the Registration
Statement and Prospectus, when they were filed (or, if an amendment with respect
to any such document was filed when such amendment was filed) with the
Commission, complied as to form in all material respects with the Exchange Act
(except as to the financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein as to which such
counsel need express no opinion);
(xvii) the Company will not, upon consummation of the
transactions contemplated by this Agreement, be an "investment company," or a
"promoter" or "principal underwriter" for, a "registered investment company," as
such terms are defined in the Investment Company Act of 1940, as amended;
(xviii) such counsel have participated in conferences with
officers and other representatives of the Company, representatives of the
independent
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public accountants of the Company and representatives of the Underwriter at
which the contents of the Registration Statement and Prospectus were discussed
and, although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus (except as and to the
extent stated in subparagraphs (vi) and (viii) above), on the basis of the
foregoing nothing has come to the attention of such counsel that causes them to
believe that the Registration Statement or any amendment thereto at the time
such Registration Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus or any supplement thereto at the date of such Prospectus or
such supplement, and at all times up to and including the time of purchase or
additional time of purchase, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and schedules and other financial and statistical data included in
the Registration Statement or Prospectus).
(b) You shall have received from PricewaterhouseCoopers LLP, letters
dated, respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriter in the forms heretofore approved by you.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion of
Xxxxxx, Xxxx Xxxxxxxx LLP, counsel for the Underwriter, dated the time of
purchase or the additional time of purchase, as the case may be, as to the
matters referred to in subparagraphs (iv), (v), (viii) (with respect to the
Shares only), (ix) and (x) of paragraph (a) of this Section 8. In addition, such
counsel shall state that such counsel have participated in conferences with
officers and other representatives of the Company, counsel for the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriter at which the contents of the Registration
Statement and Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except as to matters referred to with
respect to the Shares under subparagraph (viii) of paragraph (a) of
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this Section 8), on the basis of the foregoing, no facts have come to the
attention of such counsel which lead them to believe that the Registration
Statement or any amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as of its date
or any supplement thereto as of its date contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no comment with respect to the financial statements and schedules and
other financial and statistical data included in the Registration Statement or
Prospectus).
(d) No amendment or supplement to the Registration Statement or
Prospectus, including documents deemed to be incorporated by reference therein,
shall be filed prior to the time the Registration Statement becomes effective to
which you object in writing.
(e) The Registration Statement shall become effective, or if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act, at or before 5:00 P.M., New
York City time, on the date of this Agreement, unless a later time (but not
later than 5:00 P.M., New York City time, on the second full business day after
the date of this Agreement) shall be agreed to by the Company, the Selling
Stockholders and you in writing or by telephone, confirmed in writing; provided,
however, that the Company, the Selling Stockholders and you may from time to
time agree on a later date.
(f) Prior to the time of purchase or the additional time of purchase,
as the case may be, (i) no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement
and all amendments thereto, or modifications thereof, if any, shall 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 not misleading;
and (iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall 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 are made, not misleading.
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(g) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, (i) no material
and unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the business, condition or prospects
of the Company and its Subsidiaries taken as a whole shall occur or become known
and (ii) no transaction which is material and unfavorable to the Company shall
have been entered into by the Company or any of its Subsidiaries.
(h) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate of two of its
executive officers to the effect that the representations and warranties of the
Company as set forth in this Agreement are true and correct as of each such
date, that the Company shall perform such of its obligations under this
Agreement as are to be performed at or before the time of purchase and at or
before the additional time of purchase, as the case may be and the conditions
set forth in paragraphs (g) and (h) of this Section 8 have been met.
(i) The Company and the Selling Stockholder shall have furnished to
you such other documents and certificates as to the accuracy and completeness of
any statement in the Registration Statement and the Prospectus as of the time of
purchase and the additional time of purchase, as the case may be, as you may
reasonably request.
(j) The Shares shall have been approved for listing on the Exchange,
subject only to notice of issuance at or prior to the time of purchase.
(k) Between the time of execution of this Agreement and the time of
purchase or additional time of purchase, as the case may be, there shall not
have occurred any downgrading, nor shall any notice or announcement have been
given or made of (i) any intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization", as that term is defined
in Rule 436(g)(2) under the Act.
9. Effective Date of Agreement; Termination. This Agreement shall become
effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
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The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of you if, since the time of execution of
this Agreement or the respective dates as of which information is given in the
Registration Statement and Prospectus, (y) there has been any material adverse
and unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the operations, business, condition
or prospects of the Company and its Subsidiaries taken as a whole, which would,
in your judgment make it impracticable to market the Shares or (z) there shall
have occurred any downgrading, or any notice shall have been given of (i) any
intended or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any securities of or
guaranteed by the Company or any Subsidiary by any "nationally recognized
statistical rating organization", as that term is defined in Rule 436(g)(2)
under the Act or, if, at any time prior to the time of purchase or, with respect
to the purchase of any Additional Shares, the additional time of purchase, as
the case may be, trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market shall have been suspended
or limitations or minimum prices shall have been established on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market or if
a banking moratorium shall have been declared either by the United States or New
York State authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment, to make it
impracticable to market the Shares.
If the sale to the Underwriter of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriter for any reason permitted under
this Agreement or if such sale is not carried out because the Company or the
Selling Stockholders, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company or the Selling Stockholders, as the
case may be, shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 6(a), 7 and 11 hereof), and the
Underwriter shall be under no obligation or liability to the Company and the
Selling Stockholders under this Agreement (except to the extent provided in
Section 10 hereof).
10. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless the
Selling Stockholders, the Underwriter, their respective partners, directors and
officers, and any person who controls any Selling Stockholder or the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons (the "indemnified
persons") from and against any loss, damage, expense, liability or claim
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(including the reasonable cost of investigation) which, jointly or severally,
any such indemnified person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof) or in
a Prospectus (the term Prospectus for the purpose of this Section 11 being
deemed to include any Preliminary Prospectus, the Prospectus and the Prospectus
as amended or supplemented), or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated in either such
Registration Statement or Prospectus or necessary to make the statements made
therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by the Underwriter to the Company expressly for
use with reference to the Underwriter in such Registration Statement or such
Prospectus or arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to be stated
in such Registration Statement or Prospectus or necessary to make such
information not misleading.
If any action, suit or proceeding (together, a "Proceeding") is brought
against any such indemnified person in respect of which indemnity may be sought
against the Company pursuant to the foregoing paragraph, such indemnified person
shall promptly notify the Company in writing of the institution of such
Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
persons and payment of all fees and expenses; provided, however, that the
omission to so notify the Company shall not relieve the Company from any
liability which the Company may have to any such indemnified person or
otherwise. Such indemnified persons shall have the right to employ their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified persons unless the employment of such counsel
shall have been authorized in writing by the Company in connection with the
defense of such Proceeding or the Company shall not have, within a reasonable
period of time in light of the circumstances employed counsel to have charge of
the defense of such Proceeding or such indemnified person or persons shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to the
Company (in which case the Company shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified persons), in any of
which events such fees and expenses shall be borne
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by the Company and paid as incurred (it being understood, however, that the
Company shall not be liable for the expenses of more than one separate counsel
(in addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified persons who
are parties to such Proceeding). The Company shall not be liable for any
settlement of any such Proceeding effected without its written consent but if
settled with the written consent of the Company, the Company agrees to indemnify
and hold harmless any Underwriter and any such indemnified person from and
against any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified person shall have requested an
indemnifying party to reimburse the indemnified person for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified persons in accordance with such request prior to the date of
such settlement and (iii) such indemnified person shall have given the
indemnifying party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
persons, effect any settlement of any pending or threatened Proceeding in
respect of which any indemnified person is or could have been a party and
indemnity could have been sought hereunder by such indemnified person, unless
such settlement includes an unconditional release of such indemnified person
from all liability on claims that are the subject matter of such Proceeding and
does not include an admission of fault, culpability or a failure to act, by or
on behalf of such indemnified person.
(b) The Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Company or any such person may incur under the Act, the Exchange Act or
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with information
furnished in writing by the Underwriter to the Company expressly for use with
reference to the Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof) or in
a Prospectus, or arises out of or is based upon any omission or alleged omission
to
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state a material fact in connection with such information required to be stated
in such Registration Statement or Prospectus or necessary to make such
information not misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against the Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify the
Underwriter in writing of the institution of such Proceeding and the Underwriter
shall assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses, provided, however, that the omission to so notify the Underwriter
shall not relieve the Underwriter from any liability which the Underwriter may
have to the Company or any such person or otherwise. The Company or such person
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the Company or such
person unless the employment of such counsel shall have been authorized in
writing by the Underwriter in connection with the defense of such Proceeding or
the Underwriter shall not have employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to or in conflict with those available to the Underwriter (in
which case the Underwriter shall not have the right to direct the defense of
such Proceeding on behalf of the indemnified party or parties, but the
Underwriter may employ counsel and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of the Underwriter),
in any of which events such fees and expenses shall be borne by the Underwriter
and paid as incurred (it being understood, however, that the Underwriter shall
not be liable for the expenses of more than one separate counsel (in addition to
any local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Underwriter shall not be liable for any settlement of any such
Proceeding effected without the written consent of the Underwriter but if
settled with the written consent of the Underwriter, the Underwriter agrees to
indemnify and hold harmless the Company and any such person from and against any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid
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request, (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 10 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 10 in respect of any losses, damage, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriter on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriter on the
other shall be deemed to be in the same respective proportion as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriter, bear to the aggregate
public offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriter on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses
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reasonably incurred by such party in connection with investigating, preparing to
defend or defending any claim or Proceeding.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 10 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 10, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by the Underwriter and distributed to the
public were offered to the public exceeds the amount of any damage which the
Underwriter has otherwise been required to pay by reason of such untrue
statement 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 to contribute
pursuant to this Section 10 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 10 and the covenants, warranties and representations of the Company and
the Selling Stockholder contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf of the
Underwriter, its directors and officers or any person (including each partner,
officer or director of such person) who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on
behalf of the Company, its directors or officers, any Selling Stockholder or any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Company, each Selling
Stockholder and the Underwriter agree promptly to notify each other commencement
of any Proceeding against it and, in the case of the Company, against any of the
Company's officers or directors in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement or Prospectus.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Warburg Dillon Read LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Syndicate Department, if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at
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0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: ____________ and,
if to any of the Selling Stockholders, shall be sufficient in all respects if
delivered or sent to such Selling Stockholder at its address set forth on
Schedule A hereto.
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against Warburg Dillon Read LLC or any
indemnified party. Each of Warburg Dillon Read LLC and the Company (on its
behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Company and may be enforced
in any other courts in the jurisdiction of which the Company is or may be
subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriter, the Company, the Selling
Stockholders and to the extent provided in Section 10 hereof the controlling
persons, directors and officers referred to in Such Section, and their
respective successors, assigns, heirs, pursuant representatives and executors
and administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from the Underwriter) shall acquire
or have any right under or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
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16. Successors and Assigns. This Agreement shall be binding upon
the Underwriter, the Selling Stockholders and the Company and their successors
and assigns and any successor or assign of any substantial portion of the
Company's and the Underwriter's respective businesses and/or assets.
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If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholder and the Underwriters, please so indicate in the
space provided below for the purpose, whereupon this letter and your acceptance
shall constitute a binding agreement among the Company, the Selling Stockholder
and the Underwriters, severally.
Very truly yours,
CYPRESS SEMICONDUCTOR CORPORATION
By:
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Title:
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[NAME OF SELLING STOCKHOLDER]
By:
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[NAME OF SELLING STOCKHOLDER]
By:
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Accepted and agreed to as of the date first above written
WARBURG DILLON READ LLC
By:
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Title:
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By:
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Title:
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