Sonics, Inc. [ ] Shares Common Stock ($0.001 par value per Share) Underwriting Agreement
Exhibit 1.1
[ ] Shares
Common Stock
($0.001 par value per Share)
($0.001 par value per Share)
[•][•], 2007
[•][•], 2007
UBS Securities LLC
as Representative to the Underwriters
named on Schedule A hereto
c/o UBS Securities LLC
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as Representative to the Underwriters
named on Schedule A hereto
c/o UBS Securities LLC
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Ladies and Gentlemen:
Sonics, Inc. a Delaware corporation (the “Company”), proposes to issue and sell and
each person or entity (each, a “Selling Stockholder”) identified as a Selling Stockholder
in Schedule C annexed hereto proposes to sell, to the underwriters named in Schedule
A annexed hereto (the “Underwriters”), for whom you are acting as representative, an
aggregate of [•] shares (the “Firm Shares”) of common stock, $0.001 par value per share
(the “Common Stock”), of the Company, of which [•] Firm Shares are to be issued and sold by
the Company and an aggregate of [•] Firm Shares are to be sold by the Selling Stockholders. The
number of Firm Shares to be sold by each Selling Stockholder is the number of Firm Shares set forth
opposite the name of such Selling Stockholder in Schedule C 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 hereby acknowledges that, in connection with the proposed offering of the Shares,
it has requested UBS Financial Services Inc. (“UBS-FinSvc”) to administer a directed share
program (the “Directed Share Program”) under which up to [•] Firm Shares, or
[•], (the “Reserved Shares”), shall be reserved for sale by UBS-FinSvc at the
initial public offering price to [the Company’s officers, directors, employees and consultants and
other] persons having a relationship with the Company as designated by the Company (the
“Directed Share Participants”) as part of the distribution of the Shares by the
Underwriters, subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. (the “NASD”) and
all other applicable laws, rules and regulations. The number of Shares available for sale to the
general public will be reduced to the extent that Directed Share Participants purchase Reserved
Shares. The Underwriters may offer any Reserved Shares not purchased by Directed Share
Participants to the general public on the same basis as the other Shares being issued and sold
hereunder. The Company has supplied UBS-FinSvc with the names, addresses and telephone numbers of
the individuals or other entities which the Company has designated to be participants in the
Directed Share Program. It is understood that any number of those so designated to participate in
the Directed Share Program may decline to do so.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form
S-1 (File No. [•]) under the Act, including a prospectus, relating to the Shares.
Except where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Act, as such section applies to the respective
Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof,
(ii) any information contained in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, to the extent such information is deemed, pursuant to Rule 430A or Rule 430C under
the Act, to be part of the registration statement at the Effective Time, and (iii) any registration
statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Shares, copies of one or more preliminary prospectuses relating to the
Shares. Except where the context otherwise requires, “Preliminary Prospectus,” as used
herein, means each such preliminary prospectus, in the form so furnished.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
prospectus, relating to the Shares, 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 final prospectus
included in the Registration Statement at the time it became effective under the Act, in each case
in the form furnished by the Company to you for use by the Underwriters and by dealers in
connection with the offering of the Shares.
“Permitted Free Writing Prospectuses,” as used herein, means the documents listed on
Schedule B attached hereto and each “road show” (as defined in Rule 433 under the Act), if
any, related to the offering of the Shares contemplated hereby that is a “written communication”
(as defined in Rule 405 under the Act) (each such road show, an “Electronic Road Show”).
The Underwriters have not offered or sold and will not offer or sell, without the Company’s
consent, any Shares by means of any “free writing prospectus” (as defined in Rule 405 under the
Act) that is required to be filed by the Underwriters with the Commission pursuant to Rule 433
under the Act, other than a Permitted Free Writing Prospectus.
“Disclosure Package,” as used herein, means any Preliminary Prospectus together with
any combination of one or more of the Permitted Free Writing Prospectuses, if any.
As used in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,” “hereof,” “hereto,”
“hereinafter” and similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of
this Agreement. The term “or,” as used herein, is not exclusive.
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The Company has prepared and filed, in accordance with Section 12 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”)” a registration statement (as amended, the “Exchange Act Registration
Statement”) on Form 8-A (File No. [•]) under the Exchange Act to register, under Section 12(b)
of the Exchange Act, the class of securities consisting of the Common Stock.
The Company, each of the Selling Stockholders and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell and each
of the Selling Stockholders agrees to sell, in each case severally and not jointly, to the
respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company and each Selling Stockholder, the respective number of Firm Shares (subject to
such adjustment as UBS Securities LLC (“UBS”) may determine to avoid fractional shares)
which bears the same proportion to the total number of Firm Shares to be sold by the Company or by
such Selling Stockholder, as the case may be, as the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule A annexed hereto, subject to adjustment in accordance
with Section 11 hereof, bears to the total number of Firm Shares, in each case at a purchase price
of $[•] per Share. The Company is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the effective date of the
Registration Statement 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 several Underwriters the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Underwriters 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 and the Selling
Stockholders for the Firm Shares. The Over-Allotment Option may be exercised by UBS on behalf of
the several Underwriters at any time and from time to time on or before the thirtieth day following
the date of the Prospectus, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the Over-Allotment Option is being exercised and
the date and time when the Additional Shares are to be delivered (any such date and time being
herein referred to as an “additional time of purchase”); provided, however,
that no additional time of purchase shall be earlier than the “time of purchase” (as defined below)
nor earlier than the second business day after the date on which the Over-Allotment Option shall
have been exercised nor later than the tenth business day after the date on which the
Over-Allotment Option shall have been exercised. The number of Additional Shares to be sold to
each Underwriter shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Shares (subject, in
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each case, to such adjustment as UBS may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 11 hereof.
Pursuant to powers of attorney (the “Powers of Attorney”) granted by each Selling Stockholder
(which Powers of Attorney shall be satisfactory to UBS), [•] and [•] shall act as representatives
of the Selling Stockholders. Each of the foregoing representatives (collectively, the
“Representatives of the Selling Stockholders”) is authorized, on behalf of each Selling
Stockholder, among other things, to execute any documents necessary or desirable in connection with
the sale of the Shares to be sold hereunder by such Selling Stockholder, to make delivery of the
certificates of such Shares, to receive the proceeds of the sale of such Shares, to give receipts
for such proceeds, to pay therefrom the expenses to be borne by such Selling Stockholder in
connection with the sale and public offering of the Shares, to distribute the balance of such
proceeds to such Selling Stockholder, to receive notices on behalf of such Selling Stockholder and
to take such other action as may be necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Company and to each Selling Stockholder by Federal Funds wire transfer against delivery
of the certificates for the Firm Shares to you through the facilities of The Depository Trust
Company (“DTC”) for the respective accounts of the Underwriters. Such payment and delivery
shall be made at 10:00 A.M., New York City time, on [•] (unless another time shall be agreed to by
you and the Company and any Representative of the Selling Stockholders or unless postponed in
accordance with the provisions of Section 11 hereof). The time at which such payment and delivery
are to be made is hereinafter sometimes called the “time of purchase.” Electronic transfer
of the Firm Shares shall be made to you at the time of purchase in such names and in such
denominations as you shall specify.
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.
Electronic transfer of the Additional Shares shall be made to you at the additional time of
purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 9 hereof with respect to the purchase of the
Shares shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 9:00 A.M., New York City time, on the date of the closing of
the purchase of the Firm Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and sale of Shares
pursuant to Rule 462(b) under the Act, will be filed with the Commission and become
effective under the Act no later than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Shares; no stop order of the Commission
preventing or suspending the use of any Preliminary Prospectus or
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Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement,
has been issued, and no proceedings for such purpose have been instituted or, to the
Company’s knowledge, are contemplated by the Commission; the Exchange Act Registration
Statement has become effective as provided in Section 12 of the Exchange Act;
(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each additional time
of purchase, if any, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, will comply, in all material respects,
with the requirements of the Act; the Registration Statement did not, as of the Effective
Time, 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;
each Preliminary Prospectus complied, at the time it was filed with the Commission, and
complies as of the date hereof, in all material respects with the requirements of the Act;
at no time during the period that begins on the earlier of the date of such Preliminary
Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends
at the time of purchase did or will any Preliminary Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and at no time during such period did or will
any Preliminary Prospectus, as then amended or supplemented, together with any combination
of one or more of the then issued Permitted Free Writing Prospectuses, if any, include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; the Prospectus will comply, as of its date, the date that it is filed with
the Commission, the time of purchase, each additional time of purchase, if any, and at all
times during which a prospectus is required by the Act to be delivered (whether physically
or through compliance with Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, in all material respects, with the requirements of the Act (including,
without limitation, Section 10(a) of the Act); at no time during the period that begins on
the earlier of the date of the Prospectus and the date the Prospectus is filed with the
Commission and ends at the later of the time of purchase, the latest additional time of
purchase, if any, and the end of the period during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares did or will the Prospectus, as then
amended or supplemented, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; at no time during the period that
begins on the date of such Permitted Free Writing Prospectus and ends at the time of
purchase did or will any Permitted Free Writing Prospectus include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty in
this Section 3(b) with
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respect to any statement contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in the Registration
Statement, such Preliminary Prospectus, the Prospectus or such Permitted Free Writing
Prospectus;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than the Preliminary Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except in compliance
with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus
is accompanied or preceded by the most recent Preliminary Prospectus that contains a price
range or the Prospectus, as the case may be, and that such Permitted Free Writing Prospectus
is so sent or given after the Registration Statement was filed with the Commission (and
after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under
the Act, filed with the Commission), the sending or giving, by any Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433
(without reliance on subsections (b), (c) and (d) of Rule 164); the Preliminary Prospectus
dated [•] is a prospectus that, other than by reason of Rule 433 or Rule 431 under the Act,
satisfies the requirements of Section 10 of the Act, including a price range where required
by rule; neither the Company nor the Underwriters are disqualified, by reason of subsection
(f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of
the Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to
Rules 164 and 433 under the Act; the Company is not an “ineligible issuer” (as defined in
Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164
and 433 under the Act with respect to the offering of the Shares contemplated by the
Registration Statement; the parties hereto agree and understand that the content of any and
all “road shows” (as defined in Rule 433 under the Act) related to the offering of the
Shares contemplated hereby is solely the property of the Company; the Company has caused
there to be made available at least one version of a “bona fide electronic road show” (as
defined in Rule 433 under the Act) in a manner that, pursuant to Rule 433(d)(8)(ii) under
the Act, causes the Company not to be required, pursuant to Rule 433(d) under the Act, to
file, with the Commission, any Electronic Road Show;
(d) as of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement, the Preliminary
Prospectuses and the Prospectus entitled “Capitalization” and “Description of capital stock”
(and any similar sections or information, if any, contained in any Permitted Free Writing
Prospectus), and, as of the time of purchase and any additional time of purchase, as the
case may be, the Company shall have an authorized and outstanding capitalization as set
forth in the sections of the Registration Statement, the Preliminary Prospectuses and the
Prospectus entitled “Capitalization” and “Description
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of capital stock” (and any similar sections or information, if any, contained in any
Permitted Free Writing Prospectus) (subject, in each case, to the issuance of shares of
Common Stock upon exercise of stock options and warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus and the grant of options under existing stock option plans described in the
Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus); all of the issued and outstanding shares of capital stock, including the Common
Stock, of the Company have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable securities laws and were
not issued in violation of any preemptive right, resale right, right of first refusal or
similar right; prior to the time of purchase, all outstanding shares of Series A Preferred
Stock, $0.001 par value per share, Series B Preferred Stock, $0.001 par value per share,
Series C Preferred Stock, $0.001 par value per share and Series D Preferred Stock, $0.001
par value per share, (collectively the “Preferred Stock”) of the Company shall
convert into shares of Common Stock in the manner described in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus; prior to
the date hereof, the Company has duly effected and completed a [•]-for-[•] reverse stock
split of the Common Stock in the manner described in the Registration Statement (excluding
the exhibits thereto), each Preliminary Prospectus and the Prospectus; and the Amended and
Restated Certificate of Incorporation of the Company and the Amended and Restated Bylaws of
the Company, each in the form filed as an exhibit to the Registration Statement, have been
heretofore duly authorized and approved in accordance with the Delaware General Corporation
Law and shall become effective and in full force and effect at or before the time of
purchase; the Shares are duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory distribution, on the Nasdaq Global
Market (the “NASDAQ”);
(e) 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, the Preliminary Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, to execute and deliver this Agreement and to issue, sell
and deliver the Shares to be sold by it pursuant hereto as contemplated herein;
(f) the Company is duly qualified to do business as a foreign corporation and is 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 be so
qualified and in good standing would not, individually or in the aggregate, either (i) have
a material adverse effect on the business, properties, financial condition, results of
operations or prospects of the Company and the Subsidiaries (as defined below) taken as a
whole, (ii) prevent or materially interfere with consummation of the transactions
contemplated hereby or (iii) prevent the shares of Common Stock from being accepted for
listing on, or result in the delisting of shares of Common Stock from, the NASDAQ (the
occurrence of any such effect or any such prevention or interference or any such result
described in the foregoing clauses (i), (ii) and (iii) being herein referred to as a
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“Material Adverse Effect”);
(g) the Company has no subsidiaries (as defined under the Act) other than [•]
(collectively, the “Subsidiaries”); the Company owns all of the issued and
outstanding capital stock of each of the Subsidiaries; other than the capital stock of the
Subsidiaries or securities or other interests eligible to be classified as cash equivalents
on the Company’s balance sheets in accordance with generally accepted accounting principles
consistently applied in the United States, the Company does not own or control, directly or
indirectly, any corporation, partnership, association or other entity; complete and correct
copies of the charters and the bylaws of the Company and each Subsidiary 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 on or after the date hereof through
and including the time of purchase or, if later, any additional time of purchase; 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, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any; each Subsidiary is duly qualified to do
business as a foreign corporation and is 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 be so qualified and in good standing would not,
individually or in the aggregate, 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, have been issued in compliance with all
applicable securities laws, were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right and 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; the Company has no “significant subsidiary,” as that term is defined in Rule
1-02(w) of Regulation S-X under the Act, other than [•]; and each of [•] and [•] does not
own or possess any property or assets, or have any obligations or liabilities, or possess
any rights (by contract, franchise, permit or otherwise) or engage in any operations that
are, individually or in the aggregate, material to the business, properties, financial
condition, results of operations or prospects of the Company and the Subsidiaries taken as a
whole;
(h) the Shares to be sold by the Company pursuant hereto have been duly and validly
authorized and, when issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable and free of statutory and
contractual preemptive rights, resale rights, rights of first refusal and similar rights;
the Shares to be sold by the Company pursuant hereto, when issued and delivered against
payment therefor as provided herein, will be free of any restriction upon the voting or
transfer thereof pursuant to the Company’s charter or bylaws or any agreement or other
instrument to which the Company is a party; the Shares to be sold by the Selling
Stockholders pursuant hereto have been duly and validly authorized and issued and are
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and, after they are delivered against payment therefor as provided herein, will be
fully paid, non-assessable and, to the Company’s knowledge, free of statutory and contractual preemptive rights, resale
rights, rights of first refusal and similar rights; the Shares to be sold by the Selling
Stockholders pursuant hereto are and, after they are delivered against payment therefor as
provided herein, will be free of any restriction upon the voting or transfer thereof
pursuant to the Company’s charter or bylaws or any agreement or other instrument to which
the Company is a party;
(i) the capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof, if any, contained in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any; and the certificates for the Shares are in due and proper form;
(j) this Agreement has been duly authorized, executed and delivered by the Company;
(k) neither the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which, with notice, lapse of time or both, would
result in any breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under) (A) its
charter or bylaws, or (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which it is a party or by which it or any of its properties may
be bound or affected, or (C) any federal, state, local or foreign law, regulation or rule,
or (D) any rule or regulation of any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the rules and regulations of the
NASDAQ), or (E) any decree, judgment or order applicable to it or any of its properties,
except with respect to (B) and (C) above, for such breaches, violations or defaults which
individually or in the aggregate would not be reasonably likely to have a Material Adverse
Effect;
(l) the execution, delivery and performance of this Agreement, the issuance and sale of
the Shares to be sold by the Company pursuant hereto, the sale of the Shares to be sold by
the Selling Stockholders pursuant hereto and the consummation of the transactions
contemplated hereby will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which, with notice, lapse of time or
both, would result in any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a part of such indebtedness under) (or
result in the creation or imposition of a lien, charge or encumbrance on any property or
assets of the Company or any Subsidiary pursuant to) (A) the charter or bylaws of the
Company or any of the Subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the Subsidiaries is a party or
by which any of them or any of their respective properties may
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be bound or affected, or (C) any federal, state, local or foreign law, regulation or
rule, or (D) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the rules and
regulations of the NASDAQ), or (E) any decree, judgment or order applicable to the Company
or any of the Subsidiaries or any of their respective properties, except with respect to (B)
and (C) above, for such breaches, violations or defaults which individually or in the
aggregate would not be reasonably likely to have a Material Adverse Effect;
(m) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), or approval of the stockholders of the Company,
is required in connection with the issuance and sale of the Shares to be sold by the Company
pursuant hereto, the sale of the Shares to be sold by the Selling Stockholders pursuant
hereto or the consummation of the transactions contemplated hereby, other than (i)
registration of the Shares under the Act, which has been effected (or, with respect to any
registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be
effected in accordance herewith), (ii) 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 (iii) under the Conduct Rules of the NASD;
(n) except as described in the Registration Statement (excluding the exhibits thereto),
each Preliminary Prospectus and the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares
of any other capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock of or other equity interests in
the Company and (iii) no person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Shares; no person has
the right, contractual or otherwise, to cause the Company to register under the Act any
shares of Common Stock or shares of any other capital stock of or other equity interests in
the Company, or to include any such shares or interests in the Registration Statement or the
offering contemplated thereby;
(o) each of the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary licenses, authorizations,
consents and approvals from other persons, in order to conduct their respective businesses,
except where the failure to posses such license, authorizations, consents and approvals or
to make such filings would not, individually or in the aggregate, be reasonably likely to
have a Material Adverse Effect; neither the Company nor any of the Subsidiaries is in
violation of, or in default under, or has received notice of any proceedings relating to
revocation or modification of, 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 the Subsidiaries, except
-10-
where such violation, default, revocation or modification would not, individually
or in the aggregate, be reasonably likely to have a Material Adverse Effect;
(p) there are no actions, suits, claims, investigations or proceedings pending or, to
the Company’s knowledge, threatened or contemplated to which the Company or any of the
Subsidiaries or any of their respective directors or officers is or would be a party or of
which any of their respective properties is or would be subject at law or in equity, before
or by any federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency, or before or by any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the NASDAQ), except
any such action, suit, claim, investigation or proceeding which, if resolved adversely to
the Company or any Subsidiary, would not, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect;
(q) PricewaterhouseCoopers LLP, whose report on the consolidated financial statements
of the Company and the Subsidiaries is included in the Registration Statement, the
Preliminary Prospectuses and the Prospectus dated
[•], are independent registered
public accountants as required by the Act and by the rules of the Public Company Accounting
Oversight Board;
(r) the financial statements included in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, together
with the related notes and schedules, present fairly in all material respects the
consolidated financial position of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations, cash flows and changes in
stockholders’ equity of the Company for the periods specified and have been prepared in
compliance with the requirements of the Act and Exchange Act and in conformity with U.S.
generally accepted accounting principles applied on a consistent basis during the periods
involved; the other financial and statistical data contained in the Registration Statement,
the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, are accurately and fairly presented and prepared on a basis consistent with the
financial statements and books and records of the Company; there are no financial statements
(historical or pro forma) that are required to be included in the Registration Statement,
any Preliminary Prospectus or the Prospectus that are not included as required; the Company
and the Subsidiaries do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not described in the Registration
Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus;
and all disclosures contained in the Registration Statement, the Preliminary Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission)
comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Act, to
the extent applicable;
-11-
(s) subsequent to the respective dates as of which information is given in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, in each case excluding any amendments or supplements to the
foregoing made after the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material adverse change, in the
business, properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole, (ii) any transaction which is material to the
Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the Company or any
Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any
change in the capital stock or outstanding indebtedness of the Company or any Subsidiaries
(except for (i) the grant or exercise of stock options pursuant to the stockholder approved
plans described in the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses or (ii) as a result of the sale of the Shares and as described in the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses) or (v)
any dividend or distribution of any kind declared, paid or made on the capital stock of the
Company or any Subsidiary;
(t) the Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of (i) each
of its directors and “officers” (within the meaning of Rule 16a-1(f) under the Exchange
Act), (ii) each Selling Stockholder, (iii) each holder of shares of Common Stock or any
security convertible into or exercisable or exchangeable for shares of Common Stock or any
warrant or other right to acquire shares of Common Stock or any such security, and (iv) each
Directed Share Participant;
(u) neither the Company nor any Subsidiary is, and at no time during which a prospectus
is required by the Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of Shares will either of
them be, and, after giving effect to the offering and sale of the Shares, neither of them
will 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”);
(v) the Company and each of the Subsidiaries have good and marketable title to all
property (real and personal) described the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, as being
owned by any of them, free and clear of all liens, claims, security interests or other
encumbrances; all the property described in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, as being
held under lease by the Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases;
(w) the Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
-12-
patents, trademarks (both registered and unregistered), tradenames, service names,
copyrights, trade secrets and other proprietary information described in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned or licensed by them or which are necessary for the
conduct of their respective businesses as currently conducted or as proposed to be conducted
(including the commercialization of products or services described in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as under development), except where the failure to own, license or
have such rights would not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect (collectively, “Intellectual Property”); (i) there are no
third parties who have or, to the Company’s knowledge, will be able to establish rights to
any Intellectual Property, except for, and to the extent of, the ownership rights of the
owners of the Intellectual Property which the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus disclose is licensed to the
Company; (ii) to the Company’s knowledge, there is no infringement by third parties of any
Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the Company’s rights in or to any
Intellectual Property, and the Company is unaware of any facts which could form a reasonable
basis for any such action, suit, proceeding or 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 Intellectual Property, and the Company is unaware
of any facts which could form a reasonable basis for any such action, suit, proceeding or
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 or otherwise
violates, or would, upon the commercialization of any product or service described in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, as under development, infringe or violate, any patent,
trademark, tradename, service name, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any facts which could form a reasonable basis for any
such action, suit, proceeding or claim; (vi) the Company and the Subsidiaries have complied
with the terms of each agreement pursuant to which Intellectual Property has been licensed
to the Company or any Subsidiary, and, except to the extent that such agreements have
expired pursuant to their terms, all such agreements are in full force and effect; (vii) to
the Company’s knowledge there is no patent or patent application that contains claims that
interfere with the issued or pending claims of any of the Intellectual Property or that
challenges the validity, enforceability or scope of any of the Intellectual Property; (viii)
to the Company’s knowledge there is no prior art that may render any patent application
within the Intellectual Property unpatentable that has not been disclosed to the U.S. Patent
and Trademark Office; and (ix) the product candidates described in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as under development by the Company or any Subsidiary fall within the
scope of the claims of one or more patents owned by, or exclusively licensed to, the Company
or any Subsidiary;
(x) neither the Company nor any of the Subsidiaries is engaged in any unfair
-13-
labor practice; except for matters which would not, individually or in the aggregate,
have a Material Adverse Effect, (i) there is (A) no unfair labor practice complaint pending
or, to the Company’s knowledge, threatened against the Company or any of the Subsidiaries
before the National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under collective bargaining agreements is pending or, to the Company’s
knowledge, threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the
Company’s knowledge, threatened against the Company or any of the Subsidiaries and (C) no
union representation dispute currently existing concerning the employees of the Company or
any of the Subsidiaries, (ii) to the Company’s knowledge, no union organizing activities are
currently taking place concerning the employees of the Company or any of the Subsidiaries
and (iii) there has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour
laws or any provision of the Employee Retirement Income Security Act of 1974
(“ERISA”) or the rules and regulations promulgated thereunder concerning the
employees of the Company or any of the Subsidiaries;
(y) the Company and the Subsidiaries and their respective properties, assets and
operations are in compliance with, and the Company and each of the Subsidiaries hold all
permits, authorizations and approvals required under, Environmental Laws (as defined below),
except to the extent that failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a Material Adverse Effect; there
are no past, present or, to the Company’s knowledge, reasonably anticipated future events,
conditions, circumstances, activities, practices, actions, omissions or plans that could
reasonably be expected to give rise to any material costs or liabilities to the Company or
any Subsidiary under, or to interfere with or prevent compliance by the Company or any
Subsidiary with, Environmental Laws; except as would not, individually or in the aggregate,
have a Material Adverse Effect, neither the Company nor any of the Subsidiaries (i) is the
subject of any investigation, (ii) has received any notice or claim, (iii) is a party to or
affected by any pending or, to the Company’s knowledge, threatened action, suit or
proceeding, (iv) is bound by any judgment, decree or order or (v) has entered into any
agreement, in each case relating to any alleged violation of any Environmental Law or any
actual or alleged release or threatened release or cleanup at any location of any Hazardous
Materials (as defined below) (as used herein, “Environmental Law” means any federal,
state, local or foreign law, statute, ordinance, rule, regulation, order, decree, judgment,
injunction, permit, license, authorization or other binding requirement, or common law,
relating to health, safety or the protection, cleanup or restoration of the environment or
natural resources, including those relating to the distribution, processing, generation,
treatment, storage, disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and “Hazardous Materials” means any material
(including, without limitation, pollutants, contaminants, hazardous or toxic substances or
wastes) that is regulated by or may give rise to liability under any Environmental Law);
(z) all tax returns required to be filed by the Company or any of the Subsidiaries have
been timely filed, and all taxes and other assessments of a similar nature (whether imposed
directly or through withholding) including any interest,
-14-
additions to tax or penalties applicable thereto due or claimed to be due from such
entities have been timely paid, other than those being contested in good faith and for which
adequate reserves have been provided;
(aa) the Company and each of the Subsidiaries maintain insurance covering their
respective properties, operations, personnel and businesses as the Company reasonably deems
adequate; such insurance insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect the Company and the
Subsidiaries and their respective businesses; all such insurance is fully in force on the
date hereof and will be fully in force at the time of purchase and each additional time of
purchase, if any; neither the Company nor any Subsidiary has reason to believe that it will
not be able to renew any such insurance as and when such insurance expires;
(bb) neither the Company nor any Subsidiary has sent or received any communication
regarding termination of, or intent not to renew, any of the contracts or agreements
referred to or described in any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus, or referred to or described in, or filed as an exhibit to, the
Registration Statement, and no such termination or non-renewal has been threatened by the
Company or any Subsidiary or, to the Company’s knowledge, any other party to any such
contract or agreement;
(cc) the Company and each of the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences;
(dd) the Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the Company’s
independent auditors and the Audit Committee of the Board of Directors of the Company have
been advised of: (i) all significant deficiencies, if any, in the design or operation of
internal controls which could adversely affect the Company’s ability to record, process,
summarize and report financial data; and (ii) all fraud, if any, whether or not material,
that involves management or other employees who have a role in the Company’s internal
controls; all material weaknesses, if any, in internal
-15-
controls have been identified to the Company’s independent auditors; since the date of
the most recent evaluation of such disclosure controls and procedures and internal controls,
there have been no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses; the principal executive officers (or their
equivalents) and principal financial officers (or their equivalents) of the Company have
made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”) and any related rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and correct; the Company, the
Subsidiaries and the Company’s directors and officers are each in compliance in all material
respects with all applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules
and regulations of the Commission and the NASDAQ promulgated thereunder; the Company has
taken all necessary actions to ensure that, upon and at all times after the filing of the
Registration Statement, the Company and the Subsidiaries and their respective officers and
directors, in their capacities as such, will be in compliance in all material respects with
the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”) and the rules and regulations promulgated thereunder;
(ee) each “forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, has been
made or reaffirmed with a reasonable basis and in good faith;
(ff) all statistical or market-related data included in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, are based on or derived from sources that the Company reasonably believes to be
reliable and accurate, and the Company has obtained the written consent to the use of such
data from such sources to the extent required;
(gg) neither the Company nor any of the Subsidiaries nor, to the Company’s knowledge,
any employee or agent of the Company or any Subsidiary has made any payment of funds of the
Company or any Subsidiary or received or retained any funds in violation of any law, rule or
regulation (including, without limitation, the Foreign Corrupt Practices Act of 1977), which
payment, receipt or retention of funds is of a character required to be disclosed in the
Registration Statement, any Preliminary Prospectus or the Prospectus;
(hh) no Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such Subsidiary’s capital
stock, from repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary’s property or assets to the Company or
any other Subsidiary of the Company, except as described in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus;
-16-
(ii) the issuance and sale of the Shares to be sold by the Company and, to the
Company’s knowledge, the sale of the Shares to be sold by the Selling Stockholders as
contemplated hereby will not cause any holder of any shares of capital stock, securities
convertible into or exchangeable or exercisable for capital stock or options, warrants or
other rights to purchase capital stock or any other securities of the Company to have any
right to acquire any shares of preferred stock of the Company;
(jj) except pursuant to this Agreement, neither the Company nor any of the Subsidiaries
has incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby or by the Registration Statement;
(kk) neither the Company nor any of the Subsidiaries nor any of their respective
directors, officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(ll) to the Company’s knowledge, there are no affiliations or associations between (i)
any member of the NASD and (ii) the Company or any of the Company’s officers, directors or
5% or greater security holders or any beneficial owner of the Company’s unregistered equity
securities that were acquired at any time on or after the 180th day immediately preceding
the date the Registration Statement was initially filed with the Commission, except as
disclosed in the Registration Statement (excluding the exhibits thereto), the Preliminary
Prospectuses and the Prospectus;
(mm) the Registration Statement, each Preliminary Prospectus, the Prospectus and each
Permitted Free Writing Prospectus comply in all material respects, and any further
amendments or supplements thereto will comply in all material respects, with any applicable
laws or regulations of any foreign jurisdiction in which any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus is distributed in connection with the
Directed Share Program; and no approval, authorization, consent or order of or filing with
any governmental or regulatory commission, board, body, authority or agency, other than
those heretofore obtained, is required in connection with the offering of the Reserved
Shares in any jurisdiction where the Reserved Shares are being offered; and
(nn) the Company has not offered, or caused the Underwriters to offer, Shares to any
person pursuant to the Directed Share Program with the intent to influence unlawfully (i) a
customer or supplier of the Company or any of the Subsidiaries to alter the customer’s or
supplier’s level or type of business with the Company or any of the Subsidiaries, or (ii) a
trade journalist or publication to write or publish favorable information about the Company
or any of the Subsidiaries or any of their respective products or services.
In addition, any certificate signed by any officer of the Company or any of the
-17-
Subsidiaries and delivered to the Underwriters or counsel for the Underwriters in connection with
the offering of the Shares shall be deemed to be a representation and warranty by the Company, and
not the individual signator, as to matters covered thereby, to each Underwriter.
4. Representations and Warranties of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants
to each of the Underwriters that:
(a) all information with respect to such Selling Stockholder included in the
Registration Statement, any Preliminary Prospectus or the Prospectus complied and will
comply with all applicable provisions of the Act; the information with respect to the
Selling Stockholder in the Registration Statement did not, as of the Effective Time, 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; at no time during
the period that begins on the earlier of the date of such Preliminary Prospectus and the
date such Preliminary Prospectus was filed with the Commission and ends at the time of
purchase did or will any Preliminary Prospectus, as then amended or supplemented, with
respect to the information regarding the Selling Stockholder, include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, and
at no time during such period did or will any Preliminary Prospectus, as then amended or
supplemented, together with any combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, in each case with respect to the information regarding the
Selling Stockholder, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; at no time during the period that
begins on the earlier of the date of the Prospectus and the date the Prospectus is filed
with the Commission and ends at the later of the time of purchase, the latest additional
time of purchase, if any, and the end of the period during which a prospectus is required by
the Act to be delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares did or will the Prospectus,
as then amended or supplemented, with respect to the information regarding the Selling
Stockholder, include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; at no time during the period that begins on the date
of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any
Permitted Free Writing Prospectus, with respect to the information regarding the Selling
Stockholder, include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; representations and warranties in this paragraph shall
apply only to the extent any statements in or omissions, from the Registration Statement,
Preliminary Prospectus, Prospectus or Free Writing Prospectuses are based on written
information furnished by the Selling Stockholder specifically for use therein;
(b) such Selling Stockholder has not, prior to the execution of this Agreement,
-18-
offered or sold any Shares by means of any “prospectus” (within the meaning of the
Act), or used any “prospectus” (within the meaning of the Act) in connection with the offer
or sale of the Shares, in each case other than the then most recent Preliminary Prospectus;
(c) neither the execution, delivery and performance of this Agreement or the Custody
Agreement (as defined below) or Powers of Attorney to which such Selling Stockholder is a
party nor the sale by such Selling Stockholder of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement nor the consummation of the transactions contemplated
hereby or thereby will conflict with, result in any breach or violation of or constitute a
default under (or constitute any event which with notice, lapse of time or both would result
in any breach or violation of or constitute a default under) (i) if such Selling Stockholder
is not an individual, the charter or bylaws or other organizational instruments of such
Selling Stockholder, (ii) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder or any of its properties may be bound or affected, (iii) any federal,
state, local or foreign law, regulation or rule, (iv) or any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the rules and regulations of the NASDAQ), or (v) any decree, judgment or
order applicable to such Selling Stockholder or any of its properties.
(d) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), is required in connection with the sale of the
Shares to be sold by such Selling Stockholder pursuant to this Agreement or the consummation
by such Selling Stockholder of the transactions contemplated hereby or by the Custody
Agreement or Power of Attorney to which such Selling Stockholder is a party other than (i)
registration of the Shares under the Act, which has been effected (or, with respect to any
registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be
effected in accordance herewith), (ii) 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 (iii) under the Conduct Rules of the NASD;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or
indirectly, any action designed to, or which has constituted or might reasonably be expected
to cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(f) there are no affiliations or associations between any member of the NASD and such
Selling Stockholder, except as disclosed in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus; none of the proceeds
received by such Selling Stockholder from the sale of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement will be paid to a member of the
-19-
NASD or any affiliate of (or person “associated with,” as such terms are used in the
Rules of the NASD) such member;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares
(whether the time of purchase or any additional time of purchase, as the case may be), will
be the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant
to this Agreement and has and, at the time of delivery of such Shares, 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 any 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;
(h) such Selling Stockholder has and, at the time of delivery of the Shares to be sold
by such Selling Stockholder pursuant to this Agreement (whether the time of purchase or any
additional time of purchase, as the case may be), will have full legal right, power and
capacity, and all authorizations and approvals required by law (other than those imposed by
the Act and state securities or blue sky laws), to (i) enter into this Agreement and the
Custody Agreement and to execute the Powers of Attorney, (ii) sell, assign, transfer and
deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement in the
manner provided in this Agreement and (iii) make the representations, warranties and
agreements made by such Selling Stockholder herein;
(i) this Agreement and the custody agreement (the “Custody Agreement”), dated
[•], between [•], as custodian (the “Custodian”), and such Selling Stockholder and
the Powers of Attorney to which such Selling Stockholder is a party have each been duly
executed and delivered by (or, in the case of this Agreement, on behalf of) such Selling
Stockholder, and each is a legal, valid and binding agreement of such Selling Stockholder
enforceable in accordance with its terms;
(j) such Selling Stockholder has duly and irrevocably authorized each of the
Representatives of the Selling Stockholders (whether acting alone or together), on behalf of
such Selling Stockholder, to execute and deliver this Agreement and any other documents
necessary or desirable in connection with the transactions contemplated hereby or thereby
and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement
and receive payment therefor pursuant hereto;
(k) the sale of the Shares to be sold by such Selling Stockholder pursuant to this
Agreement is not prompted by any information concerning the Company or any Subsidiary which
is not set forth in the Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus and the Prospectus;
(l) at the time of purchase and each additional time of purchase, all stock transfer or
other taxes (other than income taxes), if any, that are required to be paid in connection
with the sale and transfer of the Shares to be sold by such Selling Stockholder to the
several Underwriters hereunder will be fully paid or provided for by such Selling
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Stockholder, and all laws imposing such taxes will be fully complied with;
(m) Such Selling Stockholder is not, or and has not been at any time, a “United States
Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Internal
Revenue Code of 1986, as amended (the “Code”);
(n) pursuant to the Custody Agreement to which such Selling Stockholder is a party,
certificates in negotiable form for the Shares to be sold by such Selling Stockholder
pursuant to this Agreement have been placed in custody for the purpose of making delivery of
such Shares in accordance with this Agreement; such Selling Stockholder agrees that (i) such
Shares represented by such certificates are for the benefit of, and coupled with and subject
to the interest of, the Custodian, the Representatives of the Selling Stockholders, the
Underwriters and the Company, (ii) the arrangements made by such Selling Stockholder for
custody and for the appointment of the Custodian and the Representatives of the Selling
Stockholders by such Selling Stockholder are irrevocable, and (iii) the obligations of such
Selling Stockholder hereunder shall not be terminated by operation of law, whether by the
death, disability or incapacity of such Selling Stockholder (or, if such Selling Stockholder
is not an individual, the liquidation, dissolution, merger or consolidation of such Selling
Stockholder) or the occurrence of any other event (each, an “Event”); if an Event
occurs before the delivery of the Shares hereunder, certificates for the Shares shall be
delivered by the Custodian in accordance with the terms and conditions of the Powers of
Attorney to which such Selling Stockholder is a party, the Custody Agreement to which such
Selling Stockholder is a party and this Agreement, and actions taken by the Custodian and
the Representatives of the Selling Stockholders pursuant to such Powers of Attorney or such
Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether
or not the Custodian or the Representatives of the Selling Stockholders, or either of them,
shall have received notice thereof; and
In addition, any certificate signed by any Selling Stockholder (or, with respect to any
Selling Stockholder that is not an individual, any officer of such Selling Stockholder or of any of
such Selling Stockholder’s subsidiaries) or by any Representative of the Selling Stockholders and
delivered to the Underwriters or counsel for the Underwriters in connection with the offering of
the Shares shall be deemed to be a representation and warranty by such Selling Stockholder, as to
matters covered thereby, to each Underwriter.
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 or other jurisdictions as you may designate and to maintain such qualifications in
effect so long as you may request for the distribution of the Shares; provided,
however, 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 jurisdiction (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
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qualification of the Shares for offer or sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, 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 Underwriters may reasonably request for
the purposes contemplated by the Act; in case any Underwriter is required to deliver
(whether physically or through compliance with Rule 172 under the Act or any similar rule),
in connection with the sale of the Shares, a prospectus after the nine-month period referred
to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon
request such amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the Commission and become
effective before the Shares may be sold, the Company will use its best efforts to cause such
post-effective amendment or such Registration Statement to be filed and become effective,
and will pay any applicable fees in accordance with the Act, as soon as possible; and the
Company will advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when such post-effective amendment or such Registration Statement has become
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 in accordance with 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 the Exchange Act
Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing 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 use its best efforts 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 the Exchange Act Registration
Statement, any Preliminary Prospectus or the Prospectus, and to provide you and
Underwriters’ counsel copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such amendment or supplement to
which you shall object in writing;
(e) subject to Section 5(d) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by the Company
with the Commission in order to comply with the Exchange Act for so long
as a prospectus is required by the Act to be delivered (whether physically or through
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compliance with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares; and to provide you, for your review and comment, with a copy of such reports and
statements and other documents to be filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act during such period a reasonable amount of time prior to any
proposed filing, and to file no such report, statement or document to which you shall have
objected in writing; and to promptly notify you of such filing;
(f) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, which event could require the making of any change in the Prospectus then
being used so that the Prospectus would not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend or
supplement the Prospectus to cause the Prospectus to comply with the requirements of the
Act, and, in each case, during such time, subject to Section 5(d) hereof, to prepare and
furnish, at the Company’s expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such change or to effect
such compliance;
(g) 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 twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but in any case not later than
[•];
(h) to furnish to you copies of the Registration Statement, as initially filed with the
Commission, and of all amendments thereto (including all exhibits thereto) and sufficient
copies of the foregoing (other than exhibits) for distribution of a copy to each of the
other Underwriters;
(i) to furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been read by the
Company’s independent registered public accountants, as stated in their letter to be
furnished pursuant to Section 9(c) hereof;
(j) to apply the net proceeds to the Company from the sale of the Shares in the manner
set forth under the caption “Use of proceeds” in the Prospectus and to file
such reports with the Commission with respect to the sale of the Shares and the
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application of the proceeds therefrom as may be required by Rule 463 under the Act;
(k) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the
Act) and with Rule 433(g) under the Act;
(l) beginning on the date hereof and ending on, and including, the date that is 180
days after the date of the Prospectus (the “Lock-Up Period”), without the prior
written consent of UBS, not to (i) issue, sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to
dispose of, directly or indirectly, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act and the rules and regulations of the Commission promulgated thereunder, with
respect to, any Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable or exercisable
for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to
become effective a registration statement under the Act relating to the offer and sale of
any Common Stock or any other securities of the Company that are substantially similar to
Common Stock, or any securities convertible into or exchangeable or exercisable for, or any
warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable or exercisable
for, or any warrants or other rights to purchase, the foregoing, whether any such
transaction is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise or (iv) publicly announce an intention to effect any transaction specified in
clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and
sale of the Shares as contemplated by this Agreement, (B) issuances of Common Stock upon the
exercise of options or warrants disclosed as outstanding in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus, and (C) the issuance of employee stock options and restricted stock units not exercisable during the
Lock-Up Period pursuant to stock option plans described in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus, (D) the
issuance of Common Stock to employees pursuant to the Company’s 2007 Employee Stock Purchase
Plan, and the filing of a Registration Statement on Form S-8; provided,
however, that if (a) during the period that begins on the date that is fifteen (15)
calendar days plus three (3) business days before the last day of the Lock-Up Period and
ends on the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (b) prior to the
expiration of the Lock-Up Period, the Company announces that it will release earnings
results during the sixteen (16) day period beginning on the last day of the Lock-Up Period,
then the restrictions imposed by this Section 5(l) shall continue to apply until the
expiration of the date that is fifteen (15) calendar days plus three (3) business days after
the date on which the issuance of the earnings release or the material news or material
event occurs;
(m) prior to the time of purchase or any additional time of purchase, as the
-24-
case may be, to issue no press release or other communication directly or indirectly and hold no
press conferences with respect to the Company or any Subsidiary, the financial condition,
results of operations, business, properties, assets, or liabilities of the Company or any
Subsidiary, or the offering of the Shares, without your prior consent, which consent shall
not be unreasonably withheld;
(n) not, at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the
Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer
or sale of the Shares, in each case other than the Prospectus;
(o) not to, and to cause the Subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(p) to use its best efforts to cause the Common Stock, including the Shares, to be
listed for quotation on the NASDAQ and to maintain such listing for quotation on the NASDAQ;
(q) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock; and
(r) to cause each Directed Share Participant to execute a Lock-Up Agreement and
otherwise to cause the Reserved Shares to be restricted from sale, transfer, assignment,
pledge or hypothecation to such extent as may be required by the NASD and its rules, and to
direct the transfer agent to place stop transfer restrictions upon such Reserved Shares
during the Lock-Up Period or any such longer period of time as may be required by the NASD
and its rules; and to comply with all applicable securities and other laws, rules and
regulations in each jurisdiction in which the Reserved Shares are offered in connection with
the Directed Share Program.
6. Certain Covenants of the Selling Stockholders. Each Selling Stockholder, severally
and not jointly with the other Selling Stockholders hereby agrees:
(a) not, at any time at or after the execution of this Agreement, to offer or sell any
Shares by means of any “prospectus” (within the meaning of the Act), or use any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the Shares, in each
case other than the Prospectus;
(b) not to take, directly or indirectly, any action designed, or which will constitute,
or has constituted, or might reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale
of the Shares;
(c) to pay or cause to be paid all taxes, if any, on the transfer and sale of the
-25-
Shares being sold by such Selling Stockholder;
(d) to the extent information comes to the attention of the Selling Stockholder, to
advise you promptly, and if requested by you, confirm such advice in writing, so long as a
prospectus is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, of
(i) any material change in the business, properties, financial condition, results of
operations or prospects of the Company and the Subsidiaries taken as a whole, (ii) any
change in information in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, relating to such Selling
Stockholder or (iii) any new material information relating to the Company or relating to any
matter stated in the Registration Statement, the Preliminary Prospectuses, the Prospectus
and the Permitted Free Writing Prospectuses, if any; and
(e) prior to or concurrently with the execution and delivery of this Agreement, to
execute and deliver to the Underwriters the Powers of Attorney, Custody Agreement and a
Lock-Up Agreement.
7. Covenant to Pay Costs. The Company agrees to pay all costs, expenses, fees and
taxes in connection with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, each Permitted Free Writing 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 registration,
issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar
duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the
producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any
dealer agreements, any Powers of Attorney and Custody Agreements and any closing documents
(including compilations thereof) and the reproduction and/or printing and furnishing of copies of
each thereof to the Underwriters and (except closing documents) to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering and sale under state or
foreign laws and the determination of their eligibility for investment under state or foreign law
(including the legal fees and filing fees and other disbursements of counsel for the Underwriters)
and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to
the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the NASDAQ and any registration thereof under the
Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD,
including the reasonable legal fees and filing fees and other disbursements of counsel to the
Underwriters relating to NASD matters, (vii) the fees and disbursements of any transfer agent or
registrar for the Shares, (viii) the costs and expenses of the Company and such Selling Stockholder
relating to presentations or meetings undertaken in connection with the marketing of the offering
and sale of the Shares to prospective investors and the Underwriters’ sales forces, including,
without limitation, expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show presentations, travel,
lodging and other expenses incurred by the officers of the Company or by such Selling Stockholder
and any such consultants, and the cost of
any aircraft chartered in connection with the road show, (ix) the costs and expenses of
qualifying
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the Shares for inclusion in the book-entry settlement system of the DTC, (x) the
preparation and filing of the Exchange Act Registration Statement, including any amendments
thereto, (xi) the offer and sale of the Reserved Shares, including all costs and expenses of
UBS-FinSvc and the Underwriters, including the fees and disbursement of counsel for the
Underwriters and (xii) the performance of the Company’s and such Selling Stockholder’s other
obligations hereunder. The Company hereby agrees with the Underwriters that it will pay any such
amounts not so paid by any Selling Stockholder.
8. Reimbursement of Underwriters’ Expenses. If the Shares are not delivered for any
reason other than the termination of this Agreement pursuant to the fifth paragraph of Section 11
hereof or the default by one or more of the Underwriters in its or their respective obligations
hereunder, the Company and the Selling Stockholders, jointly and severally, shall, in addition to
paying the amounts described in Section 7 hereof, reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of their counsel.
9. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the respective representations and warranties
on the part of the Company and each Selling Stockholder on the date hereof, at the time of purchase
and, if applicable, at the additional time of purchase, the performance by the Company and each
Selling Stockholder of each of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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, with executed copies for each of the other Underwriters, and
in form and substance satisfactory to UBS, in the form set forth in Exhibit B
hereto.
(b) The Selling Stockholders shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel for the Selling Stockholders, addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, with executed copies for
each of the other Underwriters, and in form and substance satisfactory to UBS, in the form
set forth in Exhibit C hereto.
(c) You shall have received from PricewaterhouseCoopers LLP letters dated,
respectively, the date of this Agreement, the date of the Prospectus, the time of purchase
and, if applicable, the additional time of purchase, and addressed to the Underwriters (with
executed copies for each of the Underwriters) in the forms satisfactory to UBS, which
letters shall cover, without limitation, the various financial disclosures contained in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any.
(d) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
-27-
P.C., counsel for the Underwriters, dated the time of purchase or the additional time of
purchase, as the case may be, in form and substance reasonably satisfactory to UBS.
(e) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in writing.
(f) The Registration Statement, the Exchange Act Registration Statement and any
registration statement required to be filed, prior to the sale of the Shares, under the Act
pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act
or the Exchange Act, as the case may be. 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
5:30 P.M., New York City time, on the second full business day after the date of this
Agreement (or such earlier time as may be required under the Act).
(g) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (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 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; (iii) none of the
Preliminary Prospectuses or the Prospectus, and no amendment or supplement thereto, shall
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they are
made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto,
shall include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(h) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief
Financial Officer, dated the time of purchase or the additional time of purchase, as the
case may be, in the form attached as Exhibit D hereto.
(i) The Selling Stockholders will, at the time of purchase and, if applicable, at the
additional time of purchase, deliver to you a certificate signed by a Representative of the
Selling Stockholders, dated the time of purchase or the additional time of purchase, as the
case may be, in the form attached as Exhibit E hereto.
(j) You shall have received each of the signed Lock-Up Agreements referred to in
Section 3(t) hereof, and each such Lock-Up Agreement shall be in full force and effect at
the time of purchase and the additional time of purchase, as the case may be.
(k) The Company and each Selling Stockholder shall have furnished to you
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such other
documents and certificates as to the accuracy and completeness of any statement in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus as of the time of purchase and, if applicable, the additional time of
purchase, as you may reasonably request.
(l) The Shares shall have been approved for quotation on the NASDAQ, subject only to
notice of issuance at or prior to the time of purchase or the additional time of purchase,
as the case may be.
(m) The NASD shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions, contemplated
hereby.
(n) Each Selling Stockholder shall have delivered to you a duly executed Power of
Attorney and a duly executed Custody Agreement, in each case in form and substance
satisfactory to UBS.
10. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of UBS, if (1) since the time of execution of this Agreement or the earlier
respective dates as of which information is given in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, there has been
any change or any development involving a prospective change in the business, properties,
management, financial condition or results of operations of the Company and the Subsidiaries taken
as a whole, the effect of which change or development is, in the sole judgment of UBS, so material
and adverse as to make it impractical or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the Registration Statement,
the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any,
or (2) since the time of execution of this Agreement, there shall have occurred: (A) a suspension
or material limitation in trading in securities generally on the NYSE, the American Stock Exchange
or the NASDAQ; (B) a suspension or material limitation in trading in the Company’s securities on
the NASDAQ; (C) a general moratorium on commercial banking activities declared by either federal or
New York State authorities or a material disruption in commercial banking or securities settlement
or clearance services in the United States; (D) an outbreak or escalation of hostilities or acts of
terrorism involving the United States or a declaration by the United States of a national emergency
or war; or (E) any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(D) or (E), in the sole judgment of UBS, makes it impractical or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, or (3) since the time of execution of this Agreement, there shall have
occurred any downgrading, or any notice or announcement shall have been given or made
of: (A) any intended or potential downgrading or (B) any watch, review or possible change that
-29-
does
not indicate an affirmation or 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.
If UBS elects to terminate this Agreement as provided in this Section 10, the Company, the
Selling Stockholders and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company or any Selling Stockholder, as the case may be, shall be unable
to comply with any of the terms of this Agreement, the Company and the Selling Stockholders shall
not be under any obligation or liability under this Agreement (except to the extent provided in
Sections 7, 8 and 12 hereof), and the Underwriters shall be under no obligation or liability to the
Company or any Selling Stockholder under this Agreement (except to the extent provided in Section
12 hereof) or to one another hereunder.
11. Increase in Underwriters’ Commitments. Subject to Sections 9 and 10 hereof, if
any Underwriter shall default in its obligation to take up and pay for the Firm Shares to be
purchased by it hereunder (otherwise than for a failure of a condition set forth in Section 9
hereof or a reason sufficient to justify the termination of this Agreement under the provisions of
Section 10 hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have
agreed but failed to take up and pay for does not exceed 10% of the total number of Firm Shares,
the non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner set
forth below) shall take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares shall be taken
up and paid for by such non-defaulting Underwriters in such amount or amounts as you may designate
with the consent of each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters pro rata in
proportion to the aggregate number of Firm Shares set forth opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations hereunder, the Company and
each Selling Stockholder agrees with the non-defaulting Underwriters that they will not sell any
Firm Shares hereunder unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or selected by the
Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five (5)
business days in order that any necessary changes in the Registration Statement and the Prospectus
and other documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any
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Underwriter substituted under this Section 11 with like effect as if such substituted
Underwriter had originally been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Company or any Selling Stockholder to any Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company or to any Selling Stockholder. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
12. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any 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, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such 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 (i) 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 by the Company) or arises out of or is based
upon any omission or alleged omission to state a material fact required to be stated therein
or necessary to make the statements 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
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, the Registration Statement or arises out of or is
based upon any omission or alleged omission to state a material fact in the Registration
Statement in connection with such information, which material fact was not contained in such
information and which material fact was required to be stated in such Registration Statement
or was necessary to make such information not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus (the term Prospectus
for the purpose of this Section 12 being deemed to include any Preliminary Prospectus, the
Prospectus and any amendments or supplements to the foregoing), in any Permitted Free
Writing Prospectus, in any “issuer information” (as defined in Rule 433 under the Act) of
the Company, which “issuer information” is required to be, or is, filed with the Commission,
or in any Prospectus together with any combination of one or more of the Permitted Free
Writing Prospectuses, if any, or arises out of or is based upon any omission or alleged
omission to state a material fact necessary in order to make the
-31-
statements therein, in the light of the circumstances under which they were made, not
misleading, except, with respect to such Prospectus or Permitted Free Writing Prospectus,
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 concerning such Underwriter furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use in, such Prospectus or
Permitted Free Writing Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus or Permitted Free Writing Prospectus in
connection with such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not misleading, or (iii) the
Directed Share Program, except, with respect to this clause (iii), insofar as such loss,
damage, expense, liability or claim is finally judicially determined to have resulted from
the gross negligence or willful misconduct of the Underwriters in conducting the Directed
Share Program.
Without limitation of and in addition to its obligations under the other paragraphs of
this Section 12, the Company agrees to indemnify, defend and hold harmless UBS-FinSvc and
its partners, directors and officers, and any person who controls UBS-FinSvc 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, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, UBS-FinSvc or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or claim (1)
arises out of or is based upon (a) any of the matters referred to in clauses (i) through
(iii) of the first paragraph of this Section 12(a), or (b) any untrue statement or alleged
untrue statement of a material fact contained in any material prepared by or on behalf or
with the consent of the Company for distribution to Directed Share Participants in
connection with the Directed Share Program or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; (2) is or was caused by the failure of any Directed Share
Participant to pay for and accept delivery of Reserved Shares that the Directed Share
Participant has agreed to purchase; or (3) otherwise arises out of or is based upon the
Directed Share Program, provided, however, that the Company shall not be
responsible under this clause (3) for any loss, damage, expense, liability or claim that is
finally judicially determined to have resulted from the gross negligence or willful
misconduct of UBS-FinSvc in conducting the Directed Share Program. Section 12(d) shall
apply equally to any Proceeding (as defined below) brought against UBS-FinSvc or any such
person in respect of which indemnity may be sought against the Company pursuant to the
immediately preceding sentence, except that the Company shall be liable for the expenses of
one separate counsel (in addition to any local counsel) for UBS-FinSvc and any such person,
separate and in addition to counsel for the persons who may seek indemnification pursuant to
the first paragraph of this Section 12(a), in any such Proceeding.
(b) Each Selling Stockholder agrees to indemnify, defend and hold harmless
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each Underwriter, its partners, directors and officers, and any person who controls any
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, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or any such 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 (i) 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 by the Company), as such Registration
Statement relates to such Selling Stockholder, or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus, in any Permitted
Free Writing Prospectus or in any Prospectus together with any combination of one or more of
the Permitted Free Writing Prospectuses, if any, in each case as such document(s) relate to
such Selling Stockholder, or arises out of or is based upon any omission or alleged omission
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that no Selling Stockholder shall be responsible, either pursuant to this
Section 12(b) for losses, damages, expenses, liabilities or claims arising out of or based
upon such untrue statement or omission or allegation thereof based upon information
furnished by any party other than such Selling Stockholder and, in any event, no Selling
Stockholder shall be responsible, pursuant to this Section 12(b), for losses, damages,
expenses, liabilities or claims for an amount in excess of the aggregate initial public
offering price of the Shares sold by such Selling Stockholder to the Underwriters pursuant
hereto.
(c) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, each Selling Stockholder and any person who controls
the Company 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, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of investigation) which,
jointly or severally, the Company, such Selling Stockholder or any such 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 (i) any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company), or arises out
of or is based upon any omission or alleged omission to state a material fact in such
Registration Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading or (ii) any
untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by or on behalf
of
-33-
such Underwriter through you to the Company expressly for use in, a Prospectus or a
Permitted Free Writing Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus or Permitted Free Writing Prospectus in
connection with such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not misleading.
(d) If any action, suit or proceeding (each, a “Proceeding”) is brought against
a person (an “indemnified party”) in respect of which indemnity may be sought
against the Company, a Selling Stockholder or an Underwriter (as applicable, the
“indemnifying party”) pursuant to subsection (a), (b) or (c), respectively, of this
Section 12, such indemnified party shall promptly notify such indemnifying party in writing
of the institution of such Proceeding and such indemnifying party 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 such indemnifying party shall not relieve such indemnifying
party from any liability which such indemnifying party may have to any indemnified party or
otherwise. The indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at the expense
of such indemnified party or parties unless the employment of such counsel shall have been
authorized in writing by the indemnifying party (or, in the case such indemnifying party is
a Selling Stockholder, by such Selling Stockholder or by a Representative of the Selling
Stockholders) in connection with the defense of such Proceeding or the indemnifying party
shall not have, within a reasonable period of time in light of the circumstances, employed
counsel to defend 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,
additional to or in conflict with those available to such indemnifying party (in which case
such indemnifying party shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events such fees and expenses
shall be borne by such indemnifying party and paid as incurred (it being understood,
however, that, except as provided in the second paragraph of Section 12(a), such
indemnifying party 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 indemnifying party shall not be liable for any settlement of any
Proceeding effected without its written consent (or, in the case such indemnifying party is
a Selling Stockholder, without the written consent of either such Selling Stockholder or a
Representative of the Selling Stockholders) but, if settled with its written consent (or, in
the case such indemnifying party is a Selling Stockholder, with the written consent of such
Selling Stockholder or of a Representative of the Selling Stockholders), such indemnifying
party agrees to indemnify and hold harmless the indemnified party or parties 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
(or, where such indemnifying party is a Selling
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Stockholder, requested such Selling Stockholder or any Representative of the Selling
Stockholders) to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this Section 12(d), 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 (or, where such indemnifying party is a Selling
Stockholder, receipt by such Selling Stockholder or by any Representative of the Selling
Stockholders) of the aforesaid request, (ii) such indemnifying party shall not have fully
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 (or,
where such indemnifying party is a Selling Stockholder, given such Selling Stockholder or
any Representative of the Selling Stockholders) at least 30 days’ prior notice of its
intention to settle. No indemnifying party shall, without the prior written consent of the
indemnified party (or, where such indemnified party is a Selling Stockholder, the prior
written consent of such Selling Stockholder or of any Representative of the Selling
Stockholders), 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 and does not include an admission of fault or culpability or a failure to
act by or on behalf of such indemnified party.
(e) If the indemnification provided for in this Section 12 is unavailable to an
indemnified party under subsections (a), (b) and (c) of this Section 12 or insufficient to
hold an indemnified party harmless in respect of any losses, damages, expenses, liabilities
or claims referred to therein, then each applicable indemnifying 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 and the Selling Stockholders 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 and the Selling Stockholders on the one hand and of
the Underwriters 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 and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company and the
Selling Stockholders, and the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the Shares. The relative fault
of the Company and the Selling Stockholders on the one hand and of the Underwriters 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 the
-35-
Selling Stockholders or by the Underwriters 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 reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(f) The Company, the Selling Stockholders and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 12 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the equitable considerations
referred to in subsection (e) above. Notwithstanding the provisions of this Section 12, no
Underwriter shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by such Underwriter and distributed to the
public were offered to the public exceeds the amount of any damage which such 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 12 are several in proportion to their
respective underwriting commitments and not joint.
(g) The indemnity and contribution agreements contained in this Section 12 and the
covenants, warranties and representations of the Company and the Selling Stockholders
contained in this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, its partners, directors or officers
or any person (including each partner, officer or director of such person) who controls any
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 or the Selling Stockholders, their respective directors or
officers or any person who controls the Company or any Selling Stockholder 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 to be sold by the
Company pursuant hereto and the delivery of the Shares to be sold by the Selling
Stockholders pursuant hereto. The Company, the Selling Stockholders and each Underwriter
agree promptly to notify each other of the commencement of any Proceeding against it and, in
the case of the Company or a Selling Stockholder, against any of their officers or directors
in connection with the issuance and sale of the Shares, or in connection with the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus.
13. Information Furnished by the Underwriters. The statements set forth in the last
paragraph on the cover page of the Prospectus and the statements set forth in the [•] and [•]
paragraphs under the caption “Underwriting” in the Prospectus, only insofar as such statements
relate to the amount of selling concession and reallowance or to over-allotment and stabilization
activities that may be undertaken by the Underwriters, constitute the only information furnished
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by or on behalf of the Underwriters, as such information is referred to in Sections 3 and 12
hereof.
14. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department and, if to the Company, shall be sufficient in
all respects if delivered or sent to the Company at the offices of the Company at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (facsimile: [•]) Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chief Executive Officer, and, if to any Selling Stockholder, shall be sufficient in all respects if
delivered or sent to any Representative of the Selling Stockholders at [•] (facsimile: [•]),
Attention: [•].
15. 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.
16. 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
and the Selling Stockholders each consent to the jurisdiction of such courts and personal service
with respect thereto. The Company and the Selling Stockholders each hereby consent 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 any Underwriter or any indemnified
party. Each Underwriter and the Company (on its behalf and, to the extent permitted by applicable
law, on behalf of its stockholders and affiliates) and each Selling Stockholder (on its behalf and,
in the case such Selling Stockholder is not an individual, to the extent permitted by applicable
law, on behalf of its [stockholders] and affiliates)” each waive 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 and the Selling Stockholders each agree
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 each Selling Stockholder and may be enforced
in any other courts to the jurisdiction of which the Company or any Selling Stockholder is or may
be subject, by suit upon such judgment.
17. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and the Selling Stockholders and to the extent
provided in Section 12 hereof the controlling persons, partners, directors and officers referred to
in such Section, and their respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association or corporation (including
a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
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18. No Fiduciary Relationship. The Company and the Selling Stockholders each hereby
acknowledge that the Underwriters are acting solely as underwriters in connection with the purchase
and sale of the Company’s securities. The Company and the Selling Stockholders each further
acknowledge that the Underwriters are acting pursuant to a contractual relationship created solely
by this Agreement entered into on an arm’s length basis, and in no event do the parties intend that
the Underwriters act or be responsible as a fiduciary to the Company or any Selling Stockholder,
their respective management, stockholders or creditors or any other person in connection with any
activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company’s securities, either before or after the date hereof. The Underwriters hereby
expressly disclaim any fiduciary or similar obligations to the Company or any Selling Stockholder,
either in connection with the transactions contemplated by this Agreement or any matters leading up
to such transactions, and the Company and the Selling Stockholders each hereby confirm their
understanding and agreement to that effect. The Company, the Selling Stockholders and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions and that any opinions or views expressed by the Underwriters to
the Company or any Selling Stockholder regarding such transactions, including, but not limited to,
any opinions or views with respect to the price or market for the Company’s securities, do not
constitute advice or recommendations to the Company or any Selling Stockholder. The Company and
the Selling Stockholders each hereby waive and release, to the fullest extent permitted by law, any
claims that the Company or any Selling Stockholder may have against the Underwriters with respect
to any breach or alleged breach of any fiduciary or similar duty to the Company or any Selling
Stockholder in connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions.
19. 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.
20. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and the Selling Stockholders and their successors and assigns and any successor or
assign of any substantial portion of the Company’s, any Selling Stockholder’s and any of the
Underwriters’ respective businesses and/or assets.
21. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured by
the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Left Blank Intentionally; Signature Page Follows]
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If the foregoing correctly sets forth the understanding among the Company, the Selling
Stockholders and the several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and your acceptance shall constitute a binding agreement among
the Company, the Selling Stockholders and the Underwriters, severally.
| Very truly yours, Sonics, Inc. |
||||
| By: | ||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Chief Executive Officer | ||||
| The Selling Stockholders named in Schedule C hereto |
||||
| By: | [representative], Attorney-in-Fact | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted and agreed to as of the date
first above written, on behalf of
itself and the other several
Underwriters named in Schedule A
first above written, on behalf of
itself and the other several
Underwriters named in Schedule A
| UBS Securities LLC |
|||||
| By: | UBS Securities LLC | ||||
| By: | |||||
| Name: | |||||
| Title: | |||||
| By: | |||||
| Name: | |||||
| Title: | |||||
SCHEDULE A
| Number of | ||
| Underwriter | Firm Shares | |
UBS Securities LLC
|
[•] | |
▇▇▇▇▇ and Company, LLC
|
[•] | |
▇▇ ▇▇▇▇▇▇▇▇▇ + Co., LLC
|
[•] | |
ThinkEquity Partners LLC
|
[•] | |
Total
|
[•] | |
SCHEDULE B
[___]
SCHEDULE C
| Number | Number of | |||
| of Firm | Additional | |||
| Shares | Shares | |||
| [•] | [•] | |||
Selling Stockholders: |
||||
[___]
|
[___] | [___] | ||
[___]
|
[___] | [___] | ||
[___]
|
[___] | [___] | ||
[___]
|
[___] | [___] | ||
[___]
|
[___] | [___] | ||
Total
|
[•] | [•] | ||