BANKRATE, INC. Common Stock UNDERWRITING AGREEMENT
EXHIBIT
1.1
BANKRATE,
INC.
Common
Stock
,
2006
Credit
Suisse Securities
(USA)
LLC,
As
Representative of the Several Underwriters,
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
1.
Introductory.
Bankrate, Inc., a Florida corporation (“Company”),
proposes to issue and sell from time to time shares of its common stock, par
value $0.01 per share (“Common
Stock”)
and
some or all of the stockholders listed in Schedule I hereto (“Selling
Stockholders”)
propose severally (and not jointly and severally) to sell from time to time
shares of Common Stock of the Company, registered under the registration
statement referred to in Section 2(a) (“Registered
Securities”).
Particular offerings of the Registered Securities will be sold pursuant to
a
Terms Agreement referred to in Section 3, for resale in accordance with terms
of
offering determined at the time of sale.
The
Registered Securities involved in any such offering are hereinafter referred
to
as the “Offered
Securities”
and
will be specified in a Terms Agreement referred to in Section 3. The firm or
firms which agree to purchase the Offered Securities are hereinafter referred
to
as the “Underwriters”
of
such
securities, and the representative or representatives of the Underwriters,
if
any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the “Representatives”;
provided, however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term “Representatives”, as used in this
Agreement (other than in Sections 2(b), 6(c) and 8 and the second sentence
of
Section 3), shall mean the Underwriters.
2.
Representations
and Warranties of the Company and/or the Selling Stockholders.
(a)
The
Company, as of the date of each Terms Agreement referred to in Section 3,
represents and warrants to, and/or agrees with, as appropriate, each Underwriter
that:
(i)
A
registration statement (No. 333-132698), including a prospectus or prospectus
supplement, relating to the Registered Securities has been filed with the
Securities and Exchange Commission (“Commission”)
and
has been declared effective by the Commission on
[ ],
2006. “Registration
Statement”
as
of
any time means such registration statement in the form then filed with the
Commission, including any amendment thereto, any document incorporated by
reference therein and any information in a prospectus or prospectus supplement
deemed or retroactively deemed to be a part thereof pursuant to Rule 430B
(“Rule
430B”)
or
430C (“Rule
430C”)
under
the Securities Act of 1933 (“Act”)
that
has not been superseded or modified. “Registration
Statement”
without
reference to a time means the Registration Statement as of the time of the
first
contract of sale for the Offered Securities, which time shall be considered
the
“Effective
Date”
of
the
Registration Statement relating to the Offered Securities. For purposes of
this
definition, information contained in a form of prospectus or prospectus
supplement that is deemed retroactively to be a part of the Registration
Statement pursuant to Rule 430B shall be considered to be included in the
Registration Statement as of the time specified in Rule 430B.
“Statutory
Prospectus”
as
of
any time means the prospectus relating to the Offered Securities that is
included in the Registration Statement immediately prior to that time, including
any document incorporated by reference therein and any basic prospectus or
prospectus supplement deemed to be a part thereof pursuant to Rule 430B or
430C
that has not been superseded or modified. For purposes of this definition,
information contained in a form of prospectus (including a prospectus
supplement) that is deemed retroactively to be a part of the Registration
Statement pursuant to Rule 430B shall be considered to be included in the
Statutory Prospectus only as of the actual time that form of prospectus
(including a prospectus supplement) is filed with the Commission pursuant to
Rule 424(b) (“Rule
424(b)”)
under
the Act. “Prospectus” means the Statutory Prospectus that discloses the public
offering price and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
1
“Issuer
Free Writing Prospectus”
means
any “issuer free writing prospectus,” as defined in Rule 433 (“Rule
433”)
under
the Act, relating to the Offered Securities in the form filed or required to
be
filed with the Commission or, if not required to be filed, in the form retained
in the Company’s records pursuant to Rule 433(g).
“General
Use Issuer Free Writing Prospectus”
means
any Issuer Free Writing Prospectus that is intended for general distribution
to
prospective investors, as evidenced by its being specified in a schedule to
the
Terms Agreement. “Limited
Use Issuer Free Writing Prospectus”
means
any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus and includes any roadshow materials that are an Issuer Free Writing
Prospectus under Rule 433. “Applicable Time” means the time and
date so stated in the Terms Agreement referred to in Section 3.
(ii)
At
the time the Registration Statement initially became effective, at the time
of
each amendment thereto for the purposes of complying with Section 10(a)(3)
of
the Act (whether by post effective amendment, incorporated report or form of
prospectus) and on the Effective Date relating to the Offered Securities, the
Registration Statement conformed and will conform in all material respects
to
the requirements of the Act and the rules and regulations of the Commission
(“Rules
and Regulations”)
and
did not and will not include any untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein not misleading. On the date of each Terms Agreement referred
to in Section 3, the Registration Statement and the Prospectus will conform
in
all material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents will include any untrue statement
of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents made in reliance upon written information furnished to the Company
by
any Underwriter through the Representatives, if any, specifically for use
therein.
(iii)
The
date of the Terms Agreement is not more than three years subsequent to the
more
recent of the initial effective date of the Registration Statement or December
1, 2005. If, immediately prior to the third anniversary of the more recent
of
the initial effective date of the Registration Statement or December 1, 2005,
any Offered Securities identified on an executed Terms Agreement remain unsold
by the Underwriters, the Company will prior to that third anniversary file,
if
it has not already done so, a new shelf registration statement relating to
the
Offered Securities, in a form satisfactory to the Lead Underwriter (as defined
in Section 3), will use its best efforts to cause such registration statement
to
be declared effective within 180 days after that third anniversary, and will
take all other action necessary or appropriate to permit the public offering
and
sale of the Offered Securities to continue as contemplated in the expired
registration statement relating to the Offered Securities. References herein
to
the Registration Statement shall include such new shelf registration
statement.
(iv)
(i)
At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Offered Securities and (ii)
at
the date of the Terms Agreement, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405 (“Rule
405”)
under
the Act, including (x) the Company or any entity that at the time was a
subsidiary of the Company in the preceding three years not having been convicted
of a felony or misdemeanor described in paragraphs (i) through (iv) of Section
15(b)(4)(B) of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”)
or
having been made the subject of a judicial or administrative decree or order
as
described in Rule 405 and (y) the Company not having been the subject in the
immediately preceding three years of a petition under federal bankruptcy laws
or
any state insolvency law as described in Rule 405, not having had a registration
statement be the subject of a pending proceeding under Section 8 of the Act
and
not being the subject of a pending proceeding under Section 8A of the Act in
connection with the offering of the Offered Securities, all as described in
Rule
405.
2
(v)
As of
the Applicable Time, neither (i) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time, the Statutory
Prospectus, and any documents listed or disclosures in a Schedule attached
to
the Terms Agreement, all considered together (collectively, the “General
Disclosure Package”),
nor
(ii) any individual Limited Use Issuer Free Writing Prospectus, when considered
together with the General Disclosure Package, included any untrue statement
of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading. The preceding sentence does not apply to statements in
or
omissions from any prospectus included in the Registration Statement or any
Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in the Terms Agreement.
(vi)
Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Offered Securities
or
until any earlier date that the Company notified or notifies the Lead
Underwriter as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the
information then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or occurs
an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information then contained in the
Registration Statement or included or would include an untrue statement of
a
material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, (i) the Company has promptly
notified or will promptly notify the Lead Underwriter and (ii) the Company
has
promptly amended or will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or omission.
The foregoing two sentences do not apply to statements in or omissions from
any
Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in the Terms Agreement.
(vii)
The
Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Florida, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the General Disclosure Package; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its
business requires such qualification, except where the failure to be so
qualified or in good standing, would not, in the aggregate, reasonably be
expected to have a material adverse effect on the condition (financial or other)
business, operations, properties, assets, liabilities or results of operations
or prospects of the Company and its subsidiaries taken as a whole (“Material
Adverse Effect”).
(viii)
Each subsidiary of the Company has been duly incorporated or organized and
is
existing and is in good standing (if such jurisdiction recognizes such concept)
under the laws of the jurisdiction of its incorporation or organization, with
power and authority (corporate and other) to own its properties and conduct
its
business as described in the General Disclosure Package; and each subsidiary
of
the Company is duly qualified to do business as a foreign corporation or limited
liability company and is in good standing (if such jurisdiction recognizes
such
concept) in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification except in
jurisdictions where the failure to be so qualified or in good standing would
not
have a Material Adverse Effect; all of the issued and outstanding capital stock
or other equity interests of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and, if capital stock,
nonassessable; and the capital stock or other equity interests of each
subsidiary owned by the Company, directly or through subsidiaries, is owned
free
from liens, encumbrances and defects.
3
(ix)
The
Offered Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital stock
of
the Company are, and, when the Offered Securities have been delivered and paid
for in accordance with the Terms Agreement on the Closing Date (as defined
below), such Offered Securities will have been, validly issued, fully paid
and
nonassessable, will be consistent with the information in the General Disclosure
Package and will conform to the description thereof contained in the Prospectus;
and the stockholders of the Company have no preemptive rights with respect
to
its Common Stock.
(x)
Except as disclosed in the General Disclosure Package, there are no contracts,
agreements or understandings between the Company and any person that would
give
rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment.
(xi)
Except as disclosed in the General Disclosure Package, 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 in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(xii)
The
Offered Securities have been approved for listing on Nasdaq Stock Market’s
National Market (“Nasdaq
National Market”),
subject to notice of issuance.
(xiii)
No
consent, approval, authorization, or order of, or filing with, any governmental
agency or body or any court having jurisdiction over the Company or any of
its
subsidiaries is required for the consummation of the transactions contemplated
by the Terms Agreement (including the provisions of this Agreement) in
connection with the issuance and sale of the Offered Securities by the Company,
except for the registration of the Offered Securities and such as have been
obtained or may be required under the Exchange Act, by the National Association
of Securities Dealers, Inc., or applicable state securities laws.
(xiv)
The
execution, delivery and performance of the Terms Agreement (including the
provisions of this Agreement) by the Company and the issuance and sale of the
Offered Securities will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under (A) any statute, any rule,
regulation or order of any governmental agency or body or any court, domestic
or
foreign, having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, (B) any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any such subsidiary
is bound or to which any of the properties of the Company or any such subsidiary
is subject, or (C) the charter or by laws of the Company or any such subsidiary,
except in the case of clause (B), such breach, violation or default as would
not
reasonably be expected to have a Material Adverse Effect; and the Company has
full power and authority to authorize, issue and sell the Offered Securities
as
contemplated by the Terms Agreement (including the provisions of this
Agreement).
(xv)
The
Terms Agreement (including the provisions of this Agreement) has been duly
authorized, executed and delivered by the Company.
4
(xvi)
Except as disclosed in the General Disclosure Package, the Company and its
subsidiaries have good and marketable title to all real properties and good
title to all other properties and assets owned by them and material to the
business of the Company and its subsidiaries taken as a whole, in each case
free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by
them;
and except as disclosed in the General Disclosure Package, the Company and
its
subsidiaries hold any leased real or personal property material to the business
of the Company and its subsidiaries taken as a whole, under leases that are
in
full force and effect with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(xvii)
The Company and its subsidiaries possess adequate certificates, authorities
or
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them except where the failure to so possess
would not result in a Material Adverse Effect and have not received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company
or
any of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xviii)
No labor dispute with the employees of the Company or any subsidiary exists
or,
to the knowledge of the Company, is imminent that might have a Material Adverse
Effect.
(xix)
Except as disclosed in the General Disclosure Package, neither the Company
nor
any of its subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or
foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or
human exposure to hazardous or toxic substances (collectively, “environmental
laws”),
owns
or operates any real property contaminated with any substance that is subject
to
any environmental laws, is liable for any off site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any
environmental laws, which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect; and the Company
is not aware of any pending investigation which might lead to such a
claim.
(xx)
Except as disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under the Terms
Agreement (including the provisions of this Agreement) or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to the Company’s knowledge,
contemplated.
(xxi)
The
financial statements together with the related schedules and notes included
in
the Registration Statement and General Disclosure Package present fairly the
financial position of the Company and its consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity with
the
generally accepted accounting principles in the United States applied on a
consistent basis; any schedules included in the Registration Statement present
fairly the information required to be stated therein; and if pro forma financial
statements are included in the Registration Statement and General Disclosure
Package: the assumptions used in preparing the pro forma financial statements
included in the Registration Statement and the General Disclosure Package
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related pro
forma adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those adjustments to
the
corresponding historical financial statement amounts.
(xxii)
Except as disclosed in the General Disclosure Package, since the date of the
latest audited financial statements included in the General Disclosure Package
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition (financial
or
other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by
the General Disclosure Package, there has been no dividend or distribution
of
any kind declared, paid or made by the Company on any class of its capital
stock.
5
(xxiii)
The Company is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 and files reports with
the
Commission on the Electronic Data Gathering, Analysis, and Retrieval (▇▇▇▇▇)
system.
(xxiv)
The Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as described
in
the General Disclosure Package, will not be an “investment company” as defined
in the Investment Company Act of 1940.
(xxv)
Neither the Company nor any of its affiliates does business with the government
of Cuba or with any person or affiliate located in Cuba within the meaning
of
Section 517.075, Florida Statutes and the Company agrees to comply with such
Section if prior to the completion of the distribution of the Offered Securities
it commences doing such business.
(xxvi)
The Company and its subsidiaries own, possess or can acquire on reasonable
terms
sufficient trademarks, trade names, patent rights, copyrights, domain names,
licenses, approvals, trade secrets, inventions, technology, know-how and other
intellectual property and similar rights, including registrations and
applications for registration thereof (collectively, “Intellectual
Property Rights”)
necessary or material to the conduct of the business now conducted or proposed
in the General Disclosure Package to be conducted by them, and the expected
expiration of any such Intellectual Property Rights would not, individually
or
in the aggregate, have a Material Adverse Effect. Except as disclosed in the
General Disclosure Package (i) to the Company’s knowledge, there are no rights
of third parties to any of the Intellectual Property Rights owned by the Company
or its subsidiaries; (ii) there is no material infringement, misappropriation
breach, default or other violation, or the occurrence of any event that with
notice or the passage of time would constitute any of the foregoing, by the
Company, its subsidiaries or, to the Company’s knowledge, third parties of any
of the Intellectual Property Rights of the Company or its subsidiaries; (iii)
there is no pending or, to the Company’s knowledge, threatened action, suit,
proceeding or claim by others challenging the Company’s or any subsidiary’s
rights in or to, or the violation of any of the terms of, any of their
Intellectual Property Rights, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (iv) there is no pending
or,
to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the validity, enforceability or scope of any such
Intellectual Properly Rights, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (v) there is no pending or,
to
the Company’s knowledge, threatened action, suit, proceeding or claim by others
that the Company or any subsidiary infringes, misappropriates or otherwise
violates or conflicts with any Intellectual Property Rights or other proprietary
rights of others and the Company is unaware of any other fact which would form
a
reasonable basis for any such claim; and (vi) none of the Intellectual Property
Rights used by the Company or its subsidiaries in their businesses has been
obtained or is being used by the Company or its subsidiaries in violation of
any
contractual obligation binding on the Company, any of its subsidiaries in
violation of the rights of any persons, except in each case covered by clauses
(i) - (vi) such as would not, if determined adversely to the Company or any
of
its subsidiaries, individually or in the aggregate, have a Material Adverse
Effect.
(xxvii)
Neither the Company, any of its subsidiaries, any person who controls the
Company within the meaning of Section 15 of the Act and, nor, to the Company’s
knowledge, any of their respective officers, directors, supervisors, managers,
agents, or employees, have violated, and the Company’s participation in the
offering will not violate the following laws: (a) anti-bribery laws, including
but not limited to, any applicable law, rule, or regulation of any locality,
including but not limited to any law, rule, or regulation promulgated to
implement the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions, signed December 17, 1997, including
the
U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule or regulation
of similar purpose and scope, (b) anti-money laundering laws, including but
not
limited to, applicable federal, state, international, foreign or other laws,
regulations or government guidance regarding anti-money laundering, including,
without limitation, Title 18 U.S. Code section 1956 and 1957, the Patriot Act,
the Bank Secrecy Act, and international anti-money laundering principals or
procedures by an intergovernmental group or organization, such as the Financial
Action Task Force on Money Laundering, of which the United States is a member
and with which designation the United States representative to the group or
organization continues to concur, all as amended, and any Executive order,
directive, or regulation pursuant to the authority of any of the foregoing,
or
any orders or licenses issued thereunder or (c) laws and regulations imposing
U.S. economic sanctions measures, including, but not limited to, the
International Emergency Economic Powers Act, the Trading with the Enemy Act,
the
United Nations Participation Act, and the Syria Accountability and Lebanese
Sovereignty Act, all as amended, and any Executive Order, directive, or
regulation pursuant to the authority of any of the foregoing, including the
regulations of the United States Treasury Department set forth under 31 CFR,
Subtitle B, Chapter V, as amended, or any orders or licenses issued
thereunder.
6
(b)
Each
Selling Stockholder severally (and not jointly and severally) represents and
warrants to, and/or agrees with, as appropriate, the several Underwriters
that:
(i)
Such
Selling Stockholder has full right and capacity to enter into this Agreement,
and has and on the Closing Date (as defined below) will have valid and
unencumbered ownership rights to the Offered Securities to be delivered by
such
Selling Stockholder on such Closing Date (except for such encumbrances created
or arising by, through or under any Underwriter) and full right and capacity
to
sell, assign, transfer and deliver the Offered Securities to be delivered by
such Selling Stockholder on such Closing Date hereunder; and upon the delivery
of and payment for the Offered Securities on the Closing Date hereunder the
Underwriters will acquire valid and unencumbered ownership rights to the Offered
Securities to be delivered by such Selling Stockholder on such Closing Date
(except for such encumbrances created or arising by, through or under any
Underwriter).
(ii)
At
the time the Registration Statement initially became effective, at the time
of
each amendment thereto for the purposes of complying with Section 10(a)(3)
of
the Act (whether by post effective amendment, incorporated report or form of
prospectus) and on the Effective Date relating to the Offered Securities, the
Registration Statement conformed and will conform in all respects to the
requirements of the Act and the Rules and Regulations and did not and will
not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading. On the date of each Terms Agreement referred to in Section
3,
the Registration Statement and the Prospectus will conform in all respects
to
the requirements of the Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply
to
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(iii)
Except as disclosed in the General Disclosure Package, there are no contracts,
agreements or understandings between such Selling Stockholder and any person
that would give rise to a valid claim against the Company or any Underwriter
for
a brokerage commission, finder’s fee or other like payment as a result of the
sale by such Selling Stockholder of such Selling Stockholder’s Offered
Securities hereunder.
3.
Purchase
and Offering of Offered Securities.
The
obligation of the Underwriters to purchase the Offered Securities will be
evidenced by an agreement or exchange of other written communications
(“Terms
Agreement”)
at the
time the Company and the Selling Stockholders determine to sell the Offered
Securities. The Terms Agreement will incorporate by reference the provisions
of
this Agreement, except as otherwise provided therein, and will specify the
firm
or firms which will be Underwriters, the names of any Representatives, the
number of shares to be purchased by each Underwriter and the purchase price
to
be paid by the Underwriters. The Terms Agreement will also specify the time
and
date of delivery and payment (such time and date, or such other time not later
than seven full business days thereafter as the Underwriter first named in
the
Terms Agreement (the “Lead
Underwriter”)
and
the Company and the Selling Stockholders agree as the time for payment and
delivery, being herein and in the Terms Agreement referred to as the
“Closing
Date”),
the
place of delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to the offering of
the
Offered Securities. For purposes of Rule 15c6 1 under the Securities Exchange
Act of 1934, the Closing Date (if later than the otherwise applicable settlement
date) shall be the date for payment of funds and delivery of securities for
all
the Offered Securities sold pursuant to the offering. The obligations of the
Underwriters to purchase the Offered Securities will be several and not joint.
It is understood that the Underwriters propose to offer the Offered Securities
for sale as set forth in the Prospectus.
7
The
Offered Securities delivered to the Underwriters on the Closing Date will be
in
a form reasonably acceptable to the Lead Underwriter.
As
compensation for the Underwriters’ commitments, each Selling Stockholder will
pay to the Lead Underwriter for the Underwriters proportionate accounts a sum,
as specified in the Terms Agreement, times the total number of Offered
Securities purchased by the Underwriters from such Selling Stockholder on the
Closing Date.
4.
Certain
Agreements of the Company and the Selling Stockholders.
The
Company agrees with the several Underwriters and the Selling Stockholders that
it will furnish to counsel for the Underwriters, one conformed copy of the
registration statement relating to the Registered Securities, including all
exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Offered Securities:
(a)
The
Company has filed or will file each Statutory Prospectus (including the
Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and consented to by the Lead Underwriter, subparagraph (5)), in the manner
and
within the time period required by Rule 424(b)(2). The Company has complied
and
will comply with Rule 433.
(b)
The
Company will advise the Lead Underwriter promptly of its intention to amend
or
supplement the Registration Statement or any Statutory Prospectus and will
furnish the Lead Underwriter with copies of any such documents in a reasonable
amount of time prior to filing such proposed amendment or supplement; and the
Company will also advise the Lead Underwriter promptly of the filing of any
such
amendment or supplement and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or of any part
thereof and will use its reasonable best efforts to prevent the issuance of
any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c)
If,
at any time when a prospectus relating to the Offered Securities is (or but
for
the exemption in Rule 172 under the Act would be) required to be delivered
under
the Act in connection with sales by any Underwriter or dealer, any event occurs
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time
to
amend the Prospectus to comply with the Act, the Company promptly will notify
the Lead Underwriter of such event and will promptly prepare and file with
the
Commission, at its own expense, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
Neither the Lead Underwriter’s consent to, nor the Underwriters’ delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(d)
As
soon as practicable, but not later than 18 months, after the date of each Terms
Agreement, the Company will make generally available to its securityholders
an
earnings statement covering a period of at least 12 months beginning after
the
date of such Terms Agreement and satisfying the provisions of Section 11(a)
of
the Act.
(e)
The
Company will furnish to the Representatives copies of the Registration
Statement, including all exhibits, any related preliminary prospectus, any
related preliminary prospectus supplement, the Prospectus and all amendments
and
supplements to such documents, in each case as soon as available and in such
quantities as the Lead Underwriter reasonably requests. The Company and the
Selling Stockholders will pay the expenses of printing and distributing to
the
Underwriters all such documents.
8
(f)
The
Company will arrange for the qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Lead Underwriter designates and
will
continue such qualifications in effect so long as required for the
distribution.
(g)
The
Company and the Selling Stockholders will pay all expenses incident to the
performance of their obligations under the Terms Agreement (including the
provisions of this Agreement), for any filing fees or other expenses (including
fees and disbursements of counsel) in connection with qualification of the
Registered Securities for sale for any applicable filing fee incident to, the
review by the National Association of Securities Dealers, Inc. of the Registered
Securities, for any travel expenses of the Company’s officers and employees and
any other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of Registered Securities, including the
cost of any aircraft chartered in connection with attending or hosting such
meetings, for expenses incurred in preparing, printing and distributing each
Statutory Prospectus to the Underwriters and for expenses incurred in preparing,
printing and distributing each Issuer Free Writing Prospectus to investors
and
prospective investors.
(h)
The
Company and each Selling Stockholder will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any additional
shares of its Common Stock or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing, without
the prior written consent of the Lead Underwriter for the period specified
under
“Blackout” in the Terms Agreement except for issuances of Common Stock pursuant
to the conversion or exchange of convertible or exchangeable securities or
the
exercise of warrants or options, in each case outstanding on the date of the
Terms Agreement, or grants of employee stock options pursuant to the terms
of a
plan in effect on the date of the Terms Agreement.
5.
Free
Writing Prospectuses.
(a) (i)
The Company represents and agrees that, unless it obtains the prior consent
of
the Lead Underwriter, and each Underwriter represents and agrees that, unless
it
obtains the prior consent of the Company and the Lead Underwriter, it has not
prepared or used, authorized the use of, referred to or participated in the
planning for the use of, and will not prepare or use, authorize the use of,
refer to or participate in the planning for the use of an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus,” as
defined in Rule 405. Any such free writing prospectus consented to by the
Company and the Lead Underwriter is hereinafter referred to as a “Permitted
Free Writing Prospectus.”
The
Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as
defined in Rule 433, and has complied and will comply with the requirements
of
Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including
timely Commission filing where required, legending and record keeping; (ii)
the
Underwriters covenant with the Company that the Underwriters will not use,
authorize the use of, refer to, or participate in the planning for the use
of,
an “free writing prospectus”, as defined in Rule 405 under the 1933 Act which
term includes use of any written information furnished to the Commission by
the
Company and not incorporated by reference into the Registration Statement other
than (i) any Issuer Free Writing Prospectus identified on Schedule A or (ii)
any
Underwriter Free Writing Prospectus approved by the Company in advance in
writing.
(b)
If so
indicated in the Terms Agreement, the Company will prepare a final term sheet
relating to the Offered Securities, containing only information that describes
the final terms of the Offered Securities and otherwise in a form consented
to
by the Lead Underwriter, and will file such final term sheet within the period
required by Rule 433(d)(5)(ii) following the date such final terms have been
established for all classes of the offering of the Offered Securities. Any
such
final term sheet is an Issuer Free Writing Prospectus and a Permitted Free
Writing Prospectus for purposes of this Agreement. Subject to receipt of the
Company’s prior written consent, which consent shall not be unreasonably
withheld, any Underwriter may use a free writing prospectus that contains only
(i)(x) information describing the preliminary terms of the Offered Securities
or
their offering or (y) information that describes the final terms of the Offered
Securities or their offering and that is included in the final term sheet of
the
Company contemplated in the first sentence of this subsection or (ii) other
information that is not “issuer information,” as defined in Rule 433, it being
understood that any such free writing prospectus referred to in clauses (i)
or
(ii) above shall not be an Issuer Free Writing Prospectus for purposes of this
Agreement.
9
6.
Conditions of the Obligations of the Underwriters.
The
obligations of the several Underwriters to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company and the Selling Stockholders herein, to the accuracy
of the statements of Company officers made pursuant to the provisions hereof,
to
the performance by the Company and the Selling Stockholders of their obligations
hereunder and to the following additional conditions precedent:
(a)
On or
prior to the date of the Terms Agreement, the Representatives shall have
received a letter in form and substance reasonably satisfactory to you, dated
the date of delivery thereof, of KPMG LLP.
(b)
The
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter, shall
be
contemplated by the Commission.
(c)
Subsequent to the execution of the Terms Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as one enterprise which,
in the judgment of a majority in interest of the Underwriters including any
Representatives, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment
for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of a majority in interest of the
Underwriters including any Representatives, be likely to prejudice materially
the success of the proposed issue, sale or disposition of the Offered
Securities, whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation of trading
in securities generally on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange; (v) or any suspension of trading of any
securities of the Company on any exchange or in the over the counter market;
(vi) any banking moratorium declared by U.S. Federal or New York authorities;
(vii) any major disruption of settlements of securities or clearance services
in
the United States; or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any declaration
of
war by Congress or any other national or international calamity or emergency
if,
in the judgment of a majority in interest of the Underwriters including any
Representatives, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
(d)
The
Representatives shall have received an opinion, dated the Closing Date, of
Gunster, Yoakley & ▇▇▇▇▇▇▇, P.A., counsel for the Company, substantially to
the effect set forth in Exhibit A hereto and otherwise in form and substance
reasonably satisfactory to the Representatives.
(e)
The
Representatives shall have received an opinion, dated such Closing Date, of
Gunster, Yoakley & ▇▇▇▇▇▇▇, P.A., counsel for the Selling Stockholders,
substantially to the effect set forth in Exhibit B hereto and otherwise in
form
and substance reasonably satisfactory to the Representatives.
10
(f)
The
Representatives shall have received from Shearman & Sterling LLP, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date, with
respect to such matters as the Representatives may require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(g)
The
Representatives shall have received a certificate, dated the Closing Date,
of
the President or any Vice President and a principal financial or accounting
officer of the Company in which such officers, to the best of their knowledge
after reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date,
that no stop order suspending the effectiveness of the Registration Statement
or
of any part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that, subsequent
to
the date of the most recent financial statements in the General Disclosure
Package, there has been no material adverse change, nor any development or
event
involving a prospective material adverse change, in the condition (financial
or
other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in the General Disclosure
Package or as described in such certificate.
(h)
The
Representatives shall have received a letter, dated the Closing Date, of KPMG
LLP which meets the requirements of subsection (a) of this Section, except
that
the specified date referred to in such subsection will be a date not more than
three days prior to the Closing Date for the purposes of this
subsection.
(i)
The
Company shall have obtained and delivered to you a lock-up agreement
substantially in the form of Schedule C of the Terms Agreement from each
executive officer and director of the Company.
(j)
To
avoid a 28% backup withholding tax each Selling Stockholder agrees to deliver
to
the Lead Underwriter prior to closing 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).
The
Selling Stockholders and the Company will furnish the Representatives with
such
conformed copies of such opinions, certificates, letters and documents as the
Representatives reasonably request. The Lead Underwriter may in its sole
discretion waive on behalf of the Underwriters compliance with any conditions
to
the obligations of the Underwriters under this Agreement and the Terms
Agreement.
7.
Indemnification and Contribution.
(a) The
Company will indemnify and hold harmless each Underwriter, its partners,
members, directors officers and its affiliates and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement at any time, any Statutory
Prospectus at any time, the Prospectus 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, and will reimburse each Underwriter for
any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any, specifically
for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in
the Terms Agreement.
(b)
Each
Selling Stockholder severally, and not jointly and severally, will indemnify
and
hold harmless each Underwriter, its partners, members, directors, officers
and
its affiliates and each person, if any, who controls such Underwriter within
the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
the Registration Statement at any time, any Statutory Prospectus at any time,
the Prospectus 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, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are
incurred; provided, however, that the Selling Stockholders will not be liable
in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by an
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (c)
below. Notwithstanding anything contained in this Agreement to the contrary,
the
maximum liability of each Selling Stockholder under this Agreement and the
Terms
Agreements, including without limitation, any liability of such Selling
Stockholder under this Section 7, shall not exceed an amount equal to the
aggregate amount of the net purchase price proceeds (net of underwriting
discounts and commissions before expenses) paid to such Selling Stockholder
for
the Offered Securities sold by such Selling Stockholder under this Agreement
and
any and all Terms Agreements.
11
(c)
Each
Underwriter will severally and not jointly indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act, and each Selling
Stockholder against any losses, claims, damages or liabilities to which the
Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement
at
any time, any Statutory Prospectus at any time, the Prospectus or any Issuer
Free Writing Prospectus, or other “free writing prospectus’ that is not an
Issuer Free Writing Prospectus used by an Underwriter or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives, if any, specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company and each Selling Stockholder in connection with
investigating or defending any such loss, claim, damage, liability or action
as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(d)
Promptly after receipt by an indemnified party under this Section of notice
of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under subsection
(a), (b) or (c) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve
it
from any liability that it may have under subsection (a), (b) or (c) above
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve
it
from any liability that it may have to an indemnified party otherwise than
under
subsection (a), (b) or (c) above. In case any such action is brought against
any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and,
to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, which shall not be unreasonably
withheld, effect any settlement of any pending or threatened action in respect
of which any indemnified party is or could have been a party and indemnity
could
have been sought hereunder by such indemnified party unless such settlement
(i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or behalf of an indemnified party.
12
(e)
If
the indemnification provided for in this Section is unavailable or insufficient
to hold harmless an indemnified party under subsection (a), (b) or (c) above,
then each indemnifying party shall contribute to the amount paid or payable
by
such indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a), (b) or (c) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other from
the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i)
above but also the relative fault of the Company and the Selling 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
as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other 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. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of
the losses, claims, damages or liabilities referred to in the first sentence
of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall
be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to
the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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
shall
be in addition to any liability which the Company and the 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
the obligations of the Underwriters under this Section shall be in addition
to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company,
to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the
Act.
8.
Default
of Underwriters.
If any
Underwriter or Underwriters default in their obligations to purchase Offered
Securities under the Terms Agreement and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed
but
failed to purchase does not exceed 10% of the aggregate number of shares of
Offered Securities, the Lead Underwriter may make arrangements satisfactory
to
the Company for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by
the
Closing Date, the non defaulting Underwriters shall be obligated severally,
in
proportion to their respective commitments under the Terms Agreement (including
the provisions of this Agreement), to purchase the Offered Securities that
such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the
aggregate number of shares of Offered Securities and arrangements satisfactory
to the Lead Underwriter and the Company for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
the
Terms Agreement will terminate without liability on the part of any non
defaulting Underwriter or the Company, except as provided in Section 7. As
used
in this Agreement, the term “Underwriter” includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
13
9.
Survival
of Certain Representations and Obligations.
The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and
of
the several Underwriters set forth in or made pursuant to the Terms Agreement
(including the provisions of this Agreement) will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, any Selling Stockholders, the Company
or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 8 or if
for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company and the Selling Stockholders shall remain responsible
for the expenses to be paid or reimbursed by it pursuant to Section 4 and the
respective obligations of the Company, the Selling Stockholders and the
Underwriters pursuant to Section 8 shall remain in effect. If the purchase
of
the Offered Securities by the Underwriters is not consummated for any reason
other than solely because of the termination of the Terms Agreement pursuant
to
Section 8 or the occurrence of any event specified in clause (iii), (iv), (vi),
(vii) or (viii) of Section 6(c), the Company and the Selling Stockholders will
reimburse the Underwriters for all out of pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10.
Notices.
All
communications hereunder will be in writing and, if sent to the Underwriters,
will be mailed, delivered or telegraphed and confirmed to them at their address
furnished to the Company in writing for the purpose of communications hereunder
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and Chief Executive Officer, or
if
sent to the Selling Stockholders, will be mailed, delivered or telegraphed
and
confirmed to at
[ ],
Attention:
[ ].
11.
Successors. The
Terms
Agreement (including the provisions of this Agreement) will inure to the benefit
of and be binding upon the Company and such Underwriters as are identified
in
the Terms Agreement and their respective personal representatives, successors
and the officers and directors and controlling persons referred to in Section
7,
and no other person will have any right or obligation hereunder.
12.
Representation
of Underwriters.
Any
Representatives will act for the several Underwriters in connection with the
financing described in the Terms Agreement, and any action under such Terms
Agreement (including the provisions of this Agreement) taken by the
Representatives jointly or by the Lead Underwriter will be binding upon all
the
Underwriters.
[ ]
will act for the Selling Stockholders in connection with such transactions,
and
any action under or in respect of this Agreement taken by
[ ]
will be binding upon all the Selling Stockholders.
13.
Counterparts.
The
Terms Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement.
14.
Absence
of Fiduciary Relationship.
The
Company and the Selling Stockholders acknowledge and agrees that:
(a)
the
Representatives have been retained solely to act as underwriters in connection
with the sale of Offered Securities and that no fiduciary, advisory or agency
relationship between the Company or the Selling Stockholders, on the one hand,
and the Representatives, on the other, has been created in respect of any of
the
transactions contemplated by the Terms Agreement (including the provisions
of
this Agreement incorporated by reference therein), irrespective of whether
the
Representatives have advised or are advising the Company or the Selling
Stockholders on other matters;
14
(b)
the
price of the Offered Securities set forth in the Terms Agreement was established
by the Company and the Selling Stockholders following discussions and arms
length negotiations with the Representatives and the Company and the Selling
Stockholders are capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by
the
Terms Agreement;
(c)
the
Company and the Selling Stockholders have been advised that the Representatives
and their affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company or the Selling
Stockholders and that the Representatives have no obligation to disclose such
interests and transactions to the Company or the Selling Stockholders by virtue
of any fiduciary, advisory or agency relationship; and
(d)
the
Company and the Selling Stockholders waive, to the fullest extent permitted
by
law, any claims each may have against the Representatives for breach of
fiduciary duty or alleged breach of fiduciary duty and agrees that the
Representatives shall have no liability (whether direct or indirect) to the
Company or the Selling Stockholders in respect of such a fiduciary duty claim
or
to any person asserting a fiduciary duty claim on behalf of or in right of
the
Company, including stockholders, employees or creditors of the
Company.
15.
Applicable
Law.
This Agreement and the Terms Agreement shall be governed by, and construed
in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The
Company hereby submits to the non exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit
or
proceeding arising out of or relating to the Terms Agreement (including the
provisions of this Agreement) or the transactions contemplated
thereby.
[Signature
page follows]
15
If
the
foregoing is in accordance with the Representative’s understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company, the Selling
Stockholders and the several Underwriters in accordance with its
terms.
|
|
Very
truly yours,
|
|
|
Bankrate,
Inc.
|
||
|
By
|
||
|
Title:
|
||
|
The
Selling Stockholders
|
||
16
|
The
foregoing Agreement is hereby confirmed and accepted as of the date
first
above written.
|
|
||
|
Credit
Suisse Securities (USA) LLC
|
|||
|
By
|
|||
|
Title:
|
|||
|
Acting
on behalf of itself and as the
Representative
of the several
Underwriters.
|
|||
17
TERMS
AGREEMENT
,
2006
Credit
Suisse Securities
(USA)
LLC,
As
Representative of the Several Underwriters,
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Bankrate,
Inc., a Florida corporation (“Company”)
and
the stockholders listed in Schedule I hereto (“Selling
Stockholders”)
severally (and not jointly and severally) agree to sell to the several
Underwriters named in Schedule A hereto for their respective accounts, on and
subject to the terms and conditions of the Underwriting Agreement filed as
an
exhibit to the Company’s registration statement on Form S-3 (No. 333 132698)
(“Underwriting
Agreement”),
the
following securities (“Offered
Securities”)
on the
following terms:
Title:
Common
Stock
Number
of Shares:
[ ] shares by the Company, and
[ ] shares by the Selling
Stockholders
Over
allotment:
In
addition, upon written notice from the Representative given to the Company
from
time to time not more than 30 days subsequent to the date hereof, the
Underwriters may purchase up to additional shares of the Offered Securities
(the
“Optional
Securities”)
at the
purchase price. The Company and the Selling Stockholders agree, severally and
not jointly to sell to the Underwriters the Optional Securities, and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of
each
Underwriter in the same proportion as the Number of Offered Securities set
forth
opposite such Underwriter’s name on Schedule A hereto (subject to adjustment by
the Representative to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over allotments made in connection
with the sale of the Offered Securities. No Optional Securities shall be sold
or
delivered unless the Offered Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by the Representative to the Company.
Purchase
Price:
$[ ] per share.
Expected
Reoffering Price:
$[ ] per share, subject to change by the
Representative.
Applicable
Time:
[ ]:00 [a/p]m (Eastern Time) on the date of this Terms
Agreement.
Closing:
10.00
A.M. on May [ ], 2006, at
[ ], in Federal (same day)
funds.
Underwriters’
Compensation:
$[ ] payable to the Representative for the
proportionate accounts of the Underwriters on the Closing Date.
Blackout:
The
initial blackout period (the “Blackout
Period”)
will
commence on the date of this Terms Agreement and will continue and include
the
date 90 days after the date of this Terms Agreement or such earlier date that
Credit Suisse Securities (USA) LLC (“Credit Suisse”) consents to in writing;
provided, however, that if (1) during the last 17 days of the initial Blackout
Period, the Company releases earnings results or material news or a material
event relating to the Company occurs or (2) prior to the expiration of the
initial Blackout Period, the Company announces that it will release earnings
results during the 16 day period beginning on the last day of the initial
Blackout Period, then in each case the Blackout Period will be extended until
the expiration of the 18 day period beginning on the date of release of the
earnings results or the occurrence of the material news or material event,
as
applicable, unless Credit Suisse waives, in writing, such extension. The Company
will provide Credit Suisse with notice of any announcement described in clause
(2) of the preceding sentence that gives rise to an extension of the Blackout
Period.
18
Name
and Address of the Representative:
The
respective numbers of shares of the Offered Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A
hereto.
The
provisions of the Underwriting Agreement are incorporated herein by
reference.
The
Offered Securities will be made available for checking and packaging at the
office of Shearman & Sterling LLP at least 24 hours prior to the Closing
Date.
For
purposes of Sections 2 and 7 of the Underwriting Agreement, the only information
furnished to the Company by any Underwriter for use in the Prospectus consists
of [ ].
19
If
the
foregoing is in accordance with your understanding of our agreement, kindly
sign
and return to the Company one of the counterparts hereof, whereupon it will
become a binding agreement between the Company, the Selling Stockholders and
the
several Underwriters in accordance with its terms.
|
|
Very
truly yours,
|
|
|
Bankrate,
Inc.
|
||
|
By
|
||
|
[Insert
title]
|
||
|
The
Selling Stockholders
|
||
20
|
The
foregoing Terms Agreement is hereby confirmed and accepted as of
the date
first above written.
|
|
||
|
Credit
Suisse Securities (USA) LLC
|
|||
|
By
|
|||
|
Title:
|
|||
|
Acting
on behalf of itself and as the
Representative
of the several
Underwriters.
|
|||
21
SCHEDULE
I
|
Selling
Stockholder
|
Number
of Shares
to
Be Sold
|
|
22
SCHEDULE
A
|
Number
of
Shares
|
||
|
Total
|
|
23
SCHEDULE
B
General
Use Issuer Free Writing Prospectuses
Disclosure
Referred to in Section 2(e) of the Underwriting Agreement
Disclosure
Referred to in Section 6(d) of the Underwriting Agreement
24