Ulta Salon, Cosmetics & Fragrance, Inc. _____Shares of Common Stock Underwriting Agreement
Exhibit 1.1
Ulta Salon, Cosmetics & Fragrance, Inc.
_____Shares of Common Stock
, 2007
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Wachovia Capital Markets, LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
Wachovia Capital Markets, LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Ulta Salon, Cosmetics & Fragrance, Inc., a Delaware corporation (the “Company”), proposes to
issue and sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for
whom you are acting as representatives (the “Representatives”), an aggregate of ___shares of
common stock, par value $.01 per share (the “Common Stock”), of the Company and the stockholders of
the Company named in Schedule 2 hereto (the “Selling Stockholders”) propose to sell to the
Underwriters an aggregate of ___shares of Common Stock and, at the option of the Underwriters,
the Selling Stockholders propose to sell up to an additional ___shares of Common Stock. The
aggregate of ___shares to be sold by the Company and the Selling Stockholders are herein referred
to as the “Underwritten Shares” and the aggregate of ___additional shares to be sold by the
Selling Stockholders at the option of the Underwriters are referred to as the “Option Shares.” The
Underwritten Shares and the Option Shares are herein referred to as the “Shares.” The shares of
Common Stock of the Company to be outstanding after giving effect to the sale of the Shares are
herein referred to as the “Stock.” The Stock, including the Shares, will have attached thereto
rights (the “Rights”) to purchase shares of Series A Junior Participating Preferred Stock, par
value $.01 per share (the “Preferred Stock”). The Rights are to be issued pursuant to a
Stockholder Rights Agreement (the “Rights Agreement”) dated as of the date hereof between the
Company and American Stock Transfer & Trust Company.
The Company and the Selling Stockholders hereby confirm their agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a
registration statement (File No. 333-144405) including a prospectus, relating to the Shares
and Rights. Such registration statement, as amended at the time it becomes effective, including
the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be
part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary
Prospectus” means each prospectus included in such registration statement (and any amendments
thereto) before it becomes effective and furnished by the Company to the Underwriters for
distribution in connection with the offering of the Shares, any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the
Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the
term “Prospectus” means the prospectus in the form first used (or made available upon request of
purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales
of the Shares. If the Company has filed an abbreviated registration statement pursuant to Rule
462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein
to the term “Registration Statement” shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have the meanings given to such
terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Shares were first made (the “Time of Sale”), the
Company had prepared the following information (collectively with the pricing information set forth
on Annex C, the “Time of Sale Information”): a Preliminary Prospectus dated ___, 2007,
and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act)
listed on Annex C hereto.
2. Purchase of the Shares by the Underwriters. (a) The Company and each of the
Selling Stockholders agree to issue and sell the Underwritten Shares to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein, agrees, severally
and not jointly, to purchase from the Company and each of the Selling Stockholders at a price per
share of $___(the “Purchase Price”) the number of Underwritten Shares (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying the aggregate number of Underwritten
Shares to be sold by the Company and each of the Selling Stockholders as set forth opposite their
respective names in Schedule 2 hereto by a fraction, the numerator of which is the aggregate number
of Underwritten Shares to be purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule 1 hereto and the denominator of which is the aggregate number of
Underwritten Shares to be purchased by all the Underwriters from the Company and all of the Selling
Stockholders hereunder.
In addition, the Selling Stockholders agree to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, shall have the option to purchase, severally and not jointly, from the Selling Stockholders
the Option Shares at the Purchase Price.
If any Option Shares are to be purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number
of Option Shares being purchased as the number of Underwritten Shares set
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forth opposite the name of such Underwriter in Schedule 1 hereto (or such number increased as
set forth in Section 12 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company and the Selling Stockholders by the several Underwriters, subject,
however, to such adjustments to eliminate any fractional Shares as the Representatives in their
sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Shares at any time in whole,
or from time to time in part, on or before the thirtieth day following the date of this Agreement,
by written notice from the Representatives to the Selling Stockholders. Such notice shall set
forth the aggregate number of Option Shares as to which the option is being exercised and the date
and time when the Option Shares are to be delivered and paid for which may be the same date and
time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date
nor later than the tenth full business day (as hereinafter defined) after the date of such notice
(unless such time and date are postponed in accordance with the provisions of Section 12 hereof).
Any such notice shall be given at least two Business Days prior to the date and time of delivery
specified therein.
(b) The Company and the Selling Stockholders understand that the Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable, and initially to offer the Shares on the terms set forth in
the Prospectus. The Company and the Selling Stockholders acknowledge and agree that the
Underwriters may offer and sell Shares to or through any affiliate of an Underwriter and that any
such affiliate may offer and sell Shares purchased by it to or through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representatives in the case of the Underwritten Shares,
at the offices of Winston & ▇▇▇▇▇▇ LLP at 9:00 A.M. Chicago time on ___, 2007, or at such other
time or place on the same or such other date, not later than the fifth business day thereafter, as
the Representatives and the Company may agree upon in writing or, in the case of the Option Shares,
on the date and at the time and place specified by the Representatives in the written notice of the
Underwriters’ election to purchase such Option Shares. The time and date of such payment for the
Underwritten Shares is referred to herein as the “Closing Date” and the time and date for such
payment for the Option Shares, if other than the Closing Date, is herein referred to as the
“Additional Closing Date.”
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in definitive form
registered in such names and in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the sale of the Shares duly
paid by the Company or the Selling Stockholders. The certificates for the Shares will be made
available for inspection and packaging by the Representatives at the office of ▇.▇. ▇▇▇▇▇▇
Securities Inc. set forth above not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date or the Additional Closing Date, as the case may be.
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(d) Each of the Company and the Selling Stockholders acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the
Company and the Selling Stockholders with respect to the offering of Shares contemplated hereby
(including in connection with determining the terms of the offering) and not as a financial advisor
or a fiduciary to, or an agent of, the Company, the Selling Stockholders or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company, the
Selling Stockholders or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company and the Selling Stockholders shall consult
with their own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company or the Selling Stockholders
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company or the Selling Stockholders.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter and the Selling Stockholders that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain
any 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 that the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in such Time of Sale Information. No statement of material fact included in the
Prospectus has been omitted from the Time of Sale Information and no statement of material fact
included in the Time of Sale Information that is required to be included in the Prospectus has been
omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus,
the Company (including its agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation of an
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offer to buy the Shares (each such communication by the Company or its agents and
representatives (other than a communication referred to in clause (i) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed
on Annex C hereto and other written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with
the Securities Act, has been filed in accordance with the Securities Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior
to delivery of, such Issuer Free Writing Prospectus, did not, and at the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any 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 that the
Company makes no representation and warranty with respect to any statements or omissions made in
each such Issuer Free Writing Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness of the Registration Statement
has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of
the Securities Act against the Company or related to the offering has been initiated or threatened
by the Commission; as of the applicable effective date of the Registration Statement and any
amendment thereto, the Registration Statement complied and will comply in all material respects
with the Securities Act, and did not and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date and as of the Additional Closing Date, as the case
may be, the Prospectus will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement thereto.
(e) Financial Statements. The financial statements and the related notes thereto of the
Company included in the Registration Statement, the Time of Sale Information and the Prospectus
comply in all material respects with the applicable requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”), as applicable, and present fairly in all material
respects the financial position of the Company as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods covered thereby, and the supporting schedules included in
the Registration Statement present fairly in all material respects
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the information required to be stated therein; and the other financial information included in
the Registration Statement, the Time of Sale Information and the Prospectus has been derived from
the accounting records of the Company and presents fairly in all material respects the information
shown thereby; and the pro forma financial information and the related notes
thereto included in the Registration Statement, the Time of Sale Information and the Prospectus
have been prepared in accordance with the applicable requirements of the Securities Act and the
Exchange Act, as applicable, and the assumptions underlying such pro forma
financial information are reasonable and are set forth in the Registration Statement, the Time of
Sale Information and the Prospectus.
(f) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included in the Registration Statement, the Time of Sale Information and the Prospectus,
(i) there has not been any change in the capital stock (other than as a result of the exercise of
options or warrants for the Company’s Common Stock, the award of employee stock options pursuant to
the Company’s equity incentive plans that are described in the Prospectus and the repurchase by the
Company of Common Stock pursuant to agreements providing for an option to repurchase or a right of
first refusal on behalf of the Company) or long-term debt of the Company, or any dividend or
distribution of any kind declared, set aside for payment, paid or made by the Company on any class
of capital stock, or any material adverse change in the business, properties, management, financial
position, stockholders’ equity, results of operations or prospects of the Company; (ii) the Company
has not entered into any transaction or agreement that is material to the Company or incurred any
liability or obligation, direct or contingent, that is material to the Company; and (iii) the
Company has not sustained any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor disturbance or
dispute or any action, order or decree of any court or arbitrator or governmental or regulatory
authority, except in each case as otherwise disclosed in the Registration Statement, the Time of
Sale Information and the Prospectus.
(g) Organization and Good Standing. The Company has been duly organized and is validly
existing and in good standing under the laws of Delaware, is duly qualified to do business and are
in good standing in each jurisdiction in which its ownership or lease of property or the conduct of
its business requires such qualification, and has all power and authority necessary to own or hold
its properties and to conduct the business in which it is engaged, except where the failure to be
so qualified or have such power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial position, stockholders’
equity, results of operations or prospects of the Company (a “Material Adverse Effect”). The
Company does not own or control, directly or indirectly, any corporation, association or other
entity.
(h) Capitalization. As of the date set forth therein, the Company had an authorized
capitalization as set forth in the Registration Statement, the Time of Sale Information and the
Prospectus under the heading “Capitalization”; all the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and non-assessable and
are not subject to any pre-emptive or similar rights; except as described in or expressly
contemplated by the Time of Sale Information and the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other equity interest in the
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Company, or any contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company, any such convertible or exchangeable
securities or any such rights, warrants or options; and the capital stock of the Company conforms
in all material respects to the description thereof contained in the Registration Statement, the
Time of Sale Information and the Prospectus.
(i) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement, the Rights Agreement and the Third Amended and Restated Registration Rights
Agreement, made as of July 18, 2007 (but effective only upon consummation of an initial public
offering of the Company’s Common Stock), between the Company and the stockholders party thereto
(the “Registration Rights Agreement” and together with this Agreement and the Rights Agreement, the
“Transaction Documents”) and to perform its obligations hereunder and thereunder; and all action
required to be taken for the due and proper authorization, execution and delivery by it of each of
the Transaction Documents and the consummation by it of the transactions contemplated thereby has
been duly and validly taken.
(j) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(k) The Shares. The Shares to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid for as provided herein, will be
duly and validly issued and will be fully paid and nonassessable and will conform to the
descriptions thereof in the Time of Sale Information and the Prospectus; and the issuance of the
Shares is not subject to any preemptive or similar rights; the Rights Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally or by equitable principles relating to enforceability; and the Rights
have been duly authorized by the Company and, when issued upon issuance of the Shares, will be
validly issued, and the Preferred Stock has been duly authorized by the Company and validly
reserved for issuance upon the exercise in accordance with the terms of the Rights Agreement, will
be validly issued, fully paid and non-assessable.
(l) Other Transaction Documents. The Rights Agreement and the Registration Rights Agreement
constitute valid and legally binding agreements of the Company enforceable against the Company in
accordance with their terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors’ rights generally or by equitable principles
relating to enforceability.
(m) Descriptions of the Transaction Documents. Each Transaction Document conforms in all
material respects to the description thereof contained in the Registration Statement, the Time of
Sale Information and the Prospectus.
(n) No Violation or Default. The Company is not (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no event has occurred that, with notice or
lapse of time or both, would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of
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trust, loan agreement or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of the Company is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, in each case applicable to the Company, except,
in the case of clauses (ii) and (iii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Shares and the consummation of the transactions
contemplated by the Transaction Documents will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, (ii) result in any violation of the provisions of the
charter or by-laws or similar organizational documents of the Company or (iii) result in the
violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, in each case applicable to the Company, except,
in the case of clauses (i) and (iii) above, for any such conflict, breach or violation that would
not, individually or in the aggregate, have a Material Adverse Effect.
(p) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Shares and the consummation of the transactions
contemplated by the Transaction Documents, except for the registration of the Shares under the
Securities Act and such consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities laws in connection with the
purchase and distribution of the Shares by the Underwriters.
(q) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company is or may be a party or to which any
property of the Company is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company, could reasonably be expected to have a Material Adverse Effect
or materially and adversely affect the ability of the Company to perform its obligations under the
Transaction Documents; no such investigations, actions, suits or proceedings are, to the knowledge
of the Company, threatened or contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending legal, governmental or regulatory
actions, suits or proceedings that are required under the Securities Act to be described in the
Registration Statement that are not so described in the Registration Statement, the Time of Sale
Information and the Prospectus and (ii) there are no statutes, regulations or contracts or other
documents that are required under the Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the Prospectus that are not so filed as
exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale
Information and the Prospectus.
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(r) Independent Accountants. Ernst & Young LLP, who have certified certain financial
statements of the Company, is an independent registered public accounting firm with respect to the
Company within the applicable rules and regulations adopted by the Commission and the Public
Accounting Oversight Board (United States) and as required by the Securities Act.
(s) Title to Real and Personal Property. The Company has good and marketable title in fee
simple to, or have valid rights to lease or otherwise use, all items of real and personal property
that are material to the business of the Company, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except those that (i) are described in
the Registration Statement, the Time of Sale Information and the Prospectus, (ii) do not materially
interfere with the use made and proposed to be made of such property by the Company or (iii) would
not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(t) Title to Intellectual Property. The Company owns or possesses adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) necessary for the conduct of its business except where the failure to own, possess
or have the right to employ such Intellectual Property, in the aggregate, would not have a Material
Adverse Effect; and to the Company’s knowledge, the conduct of its business does not conflict in
any material respect with any such rights of others, and the Company has not received any notice of
any claim of infringement or conflict with any such rights of others that, in the aggregate would
have a Material Adverse Effect.
(u) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company, on the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company, on the other, that is required by the Securities Act to be described in
the Registration Statement and the Prospectus and that is not so described in such documents and in
the Time of Sale Information.
(v) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in the Registration
Statement, the Time of Sale Information and the Prospectus, will not be required to register as an
“investment company” or an entity “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, “Investment Company Act”).
(w) Public Utility Holding Company Act. The Company is not a “holding company” or a
“subsidiary company” of a holding company or an “affiliate” thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(x) Taxes. The Company has paid all federal, state, local and foreign taxes and filed all tax
returns required to be paid or filed through the date hereof; and except as otherwise disclosed in
the Registration Statement, the Time of Sale Information and the Prospectus, there is no tax
deficiency that has been, or could reasonably be expected to be, asserted against the
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Company or any of its properties or assets, in each case, except as would not have a Material
Adverse Effect.
(y) Licenses and Permits. The Company possesses all licenses (with the exception of licenses
to Intellectual Property, which is covered by Section 3(t)), certificates, permits and other
authorizations issued by, and have made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that are necessary for the ownership
or lease of its properties or the conduct of its business as described in the Registration
Statement, the Time of Sale Information and the Prospectus, except where the failure to possess or
make the same would not, individually or in the aggregate, have a Material Adverse Effect; and
except as described in the Registration Statement, the Time of Sale Information and the Prospectus,
the Company has not received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course, except where the
failure to renew such license, certificate, permit or authorization would not have a Material
Adverse Effect.
(z) No Labor Disputes. No labor disturbance by or dispute with employees of the Company
exists or, to the knowledge of the Company, is threatened and the Company is not aware of any
existing or imminent labor disturbance by, or dispute with, the employees of any of its principal
suppliers, contractors or customers, except as would not have a Material Adverse Effect.
(aa) Compliance With Environmental Laws. Except as set forth in the Registration Statement,
the Time of Sale Information and the Prospectus or as would not, individually or in the aggregate,
have a Material Adverse Effect, (i) the Company (x) is in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, requirements, decisions and orders
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (y) have
received and are in compliance with all permits, licenses, certificates or other authorizations or
approvals required of them under applicable Environmental Laws to conduct its business; and (z) has
not received notice of any actual or potential liability for the investigation or remediation of
any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and
(ii) there are no costs or liabilities associated with Environmental Laws of or relating to the
Company.
(bb) Compliance With ERISA. Except in each case as would not in the aggregate have a Material
Adverse Effect, each employee benefit plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or
contributed to by the Company or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in compliance with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any such
plan excluding transactions effected pursuant to a statutory or administrative exemption; and for
each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of
ERISA, no “accumulated funding deficiency” as
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defined in Section 412 of the Code has been incurred, whether or not waived, and the fair
market value of the assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.
(cc) Disclosure Controls. The Company maintains an effective system of “disclosure controls
and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Commission’s rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure.
(dd) Accounting Controls. The Company maintains a system of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that complies with the applicable
requirements of the Exchange Act and has been designed by, or under the supervision of, its
principal executive and principal financial officers, or persons performing similar functions, to
provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted accounting
principles, including, but not limited to internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to maintain
asset accountability; (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
the existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. Except as disclosed in the Registration Statement, the Time of Sale Information and
the Prospectus, the Company is not aware of any material weaknesses in the Company’s internal
controls.
(ee) Insurance. The Company has insurance (including self insurance) covering its properties,
operations, personnel and business, including business interruption insurance, which insurance is
in amounts and insures against such losses and risks as, to the Company’s knowledge, are customary
within its industry and, to the Company’s knowledge, are adequate to protect the Company and its
business, except as set forth in the Registration Statement, the Time of Sale Information and the
Prospectus; and the Company has not (i) received notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or necessary to be made in order to
continue such insurance or (ii) any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be reasonably necessary to continue its business.
(ff) No Unlawful Payments. Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with or acting on behalf of the
Company has (i) used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
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corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, unlawful rebate, payoff, influence payment, kickback
or other unlawful payment.
(gg) Compliance with Money Laundering Laws. The operations of the Company are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(hh) Compliance with OFAC. None of the Company or, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the
Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering
of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any joint
venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
(ii) No Broker’s Fees. The Company is not a party to any contract, agreement or understanding
with any person (other than this Agreement) that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder’s fee or like payment in connection
with the offering and sale of the Shares.
(jj) No Registration Rights. Except as disclosed in the Registration Statement, Time of Sale
Information and Prospectus, no person has the right to require the Company to register any
securities for sale under the Securities Act by reason of the filing of the Registration Statement
with the Commission or the issuance and sale of the Shares.
(kk) No Stabilization. The Company has not taken, directly or indirectly, any action designed
to or that would reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(ll) Business With Cuba. The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.
(mm) Margin Rules. Neither the issuance, sale and delivery of the Shares nor the application
of the proceeds thereof by the Company as described in the Registration Statement, the Time of Sale
Information and the Prospectus will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of Governors.
(nn) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the
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Registration Statement, the Time of Sale Information and the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(oo) Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Registration Statement, the Time of Sale Information and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material respects.
(pp) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities as such, to comply in any material
respect with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 applicable to it or them and the rules
and regulations promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section
402 related to loans and Sections 302 and 906 related to certifications.
(qq) Status under the Securities Act. The Company is not an ineligible issuer as defined
under the Securities Act.
4. Representations and Warranties of the Selling Stockholders. Each of the Selling
Stockholders severally represents and warrants to each Underwriter and the Company that:
(a) Required Consents; Authority. All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of this Agreement, the Power
of Attorney (the “Power of Attorney”) and the Custody Agreement (the “Custody Agreement”)
hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; and such Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the Custody Agreement and to
sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder;
this Agreement, the Power of Attorney and the Custody Agreement have each been duly authorized,
executed and delivered by or on behalf of such Selling Stockholder.
(b) No Conflicts. The execution, delivery and performance by or on behalf of such Selling
Stockholder of this Agreement, the Power of Attorney and the Custody Agreement, the sale of the
Shares to be sold by such Selling Stockholder and the consummation by such Selling Stockholder of
the transactions herein and therein contemplated will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon such Selling Stockholder’s Shares
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is
bound or to which such Selling Stockholder’s Shares are subject, (ii) result in any violation of
the provisions of the charter or by-laws or similar organizational documents of such Selling
Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory agency, in each case,
applicable to the Selling Stockholder, except, in the case of clauses (i) and (iii) above, for any
such conflict, breach or violation that would not, individually or in the aggregate, have a
Material Adverse Effect on the ability of such Selling Stockholder to consummate the transactions
hereunder.
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(c) Title to Shares. Such Selling Stockholder has good and valid title to the Shares to be
sold at the Closing Date by such Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or adverse claims; such Selling Stockholder will have, immediately prior to
the Closing Date good and valid title to the Shares to be sold at the Closing Date by such Selling
Stockholder, free and clear of all liens, encumbrances, equities or adverse claims; and, upon
delivery of the certificates representing such Shares and payment therefor pursuant hereto, good
and valid title to such Shares, free and clear of all liens, encumbrances, equities or adverse
claims, will pass to the several Underwriters.
(d) No Stabilization. Such Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Shares.
(e) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date and as of the Additional Closing Date, as the case may be will not, contain any
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 that such Selling Stockholder only makes such representation and warranty to the extent
such statements or omissions were made or omitted in reliance upon and in conformity with
information relating to such Selling Stockholder furnished by such Selling Stockholder expressly
for use in the Time of Sale Information.
(f) Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus, such
Selling Stockholder (including its agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any free writing prospectus, other than (i) any
document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or
Rule 134 under the Securities Act or (ii) the documents listed on Annex C hereto and other written
communications approved in writing in advance by the Company and the Representatives.
(g) Registration Statement and Prospectus. As of the applicable effective date of the
Registration Statement and any amendment thereto, the Registration Statement complied and will
comply in all material respects with the Securities Act, and did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that such Selling Stockholder only makes such representation and warranty
to the extent such statements or omissions were made or omitted in reliance upon and in conformity
with information relating to such Selling Stockholder furnished by such Selling Stockholder for use
in the Registration Statement and the Prospectus and any amendment or supplement thereto.
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Each of the Selling Stockholders represents and warrants that certificates in negotiable form
representing all of the Shares, or shares of Preferred Stock to be converted into such Shares, to
be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement
relating to such Shares, in the form heretofore furnished to you, duly executed and delivered by
such Selling Stockholder to American Stock Transfer & Trust Company, as custodian (the
“Custodian”), and that such Selling Stockholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you, appointing the person or persons indicated
therein, and each of them, as such Selling Stockholder’s Attorneys-in-Fact (the “Attorneys-in-Fact”
or any of them the “Attorney-in-Fact”) with authority to execute and deliver this Agreement on
behalf of such Selling Stockholder, to determine the purchase price to be paid by the Underwriters
to the Selling Stockholders as provided herein, to authorize the delivery of the Shares to be sold
by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the Custody Agreement.
Each of the Selling Stockholders specifically agrees that the Shares represented by the
certificates held in custody for such Selling Stockholder under the Custody Agreement, are subject
to the interests of the Underwriters hereunder, and that the arrangements made by such Selling
Stockholder for such custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. Each of the Selling
Stockholders specifically agrees that the obligations of such Selling Stockholder hereunder shall
not be terminated by operation of law, whether by the death or incapacity of any individual Selling
Stockholder, or, in the case of an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a partnership, corporation or
similar organization, by the dissolution of such partnership, corporation, or organization, or by
the occurrence of any other event. If any individual Selling Stockholder or any such executor or
trustee should die or become incapacitated, or if any such estate or trust should be terminated, or
if any such partnership, corporation or similar organization should be dissolved, or if any other
such event should occur, before the delivery of the Shares hereunder, certificates representing
such Shares shall be delivered by or on behalf of such Selling Stockholder in accordance with the
terms and conditions of this Agreement and the Custody Agreement, and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death,
incapacity, termination, dissolution or other event had not occurred, regardless of whether or not
the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death,
incapacity, termination, dissolution or other event.
5. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act; and the Company will furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to
10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in
such quantities as the Representatives may reasonably request.
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(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives,
six signed copies of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith; and (ii) to each Underwriter (A) a
conformed copy of the Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies
of the Prospectus (including all amendments and supplements thereto) and each Issuer Free Writing
Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus
Delivery Period” means such period of time after the first date of the public offering of the
Shares as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is
required by law to be delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed
amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when
any amendment to the Registration Statement has been filed or becomes effective; (iii) when any
supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed; (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information; (v) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event
within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances existing
when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is
delivered to a purchaser, not misleading; and (vii) of the receipt by the Company of any notice
with respect to any suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company
will use its best efforts to prevent the issuance of any such order suspending the effectiveness of
the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the Shares and, if any such order is issued,
will obtain as soon as possible the withdrawal thereof.
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(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall occur
or condition shall exist as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will promptly
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which the Time of Sale Information as then
amended or supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances,
not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare
and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish
to the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the Shares;
provided that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representatives (which may be satisfied by filing with the Commission’s ▇▇▇▇▇ system) as soon
as practicable an earning statement that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the Company occurring after the “effective
date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 180 days after the date of the initial public offering of
the Shares, the Company will not (i) offer, pledge, announce the intention to sell, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Stock or any securities convertible into or exercisable or exchangeable
for Stock or (ii) enter into any swap or other agreement that transfers, in whole or in part, any
of the economic
-17-
consequences of ownership of the Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise,
without the prior written consent of the Representatives, other than (a) the Shares to be sold
hereunder, (b) grants of options, and any shares of Stock of the Company issued upon the exercise
of options granted under existing employee stock option plans and (c) the filing of any
registration statement on Form S-8 relating to any shares that have been or may be issued pursuant
to clause (b) above. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day
restricted period, the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted period,
the Company announces that it will release earnings results during the 16-day period beginning on
the last day of the 180-day period, the restrictions imposed by this Agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings release
or the occurrence of the material news or material event. The Company also agrees that it will
not, during the period ending 180 days after the date of the Prospectus, enter into any agreement
or take any action that would amend or waive any of the terms of the Registration Rights Agreement.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares as
described in the Registration Statement, the Time of Sale Information and the Prospectus under the
heading “Use of Proceeds.”
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that would reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Shares.
(k) Exchange Listing. The Company will use its best efforts to list for quotation, subject to
notice of issuance, the Shares on the National Association of Securities Dealers Automated
Quotations Global Select Market (the “NASDAQ Global Select Market”).
(l) Reports. For one year from the date hereof, the Company will furnish to the
Representatives, as soon as practicable after they are available, copies of all reports or other
communications (financial or other) furnished to holders of the Shares solely in their capacity as
such, and copies of any reports and financial statements furnished to or filed with the Commission
or any national securities exchange or automatic quotation system, unless they are otherwise
available on the Commission’s ▇▇▇▇▇ system.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
(n) Filings. The Company will file with the Commission such reports as may be required by
Rule 463 under the Securities Act.
6. Further Agreements of the Selling Stockholders. Each of the Selling Stockholders
covenants and agrees with each underwriter that:
(a) Clear Market. For a period of 180 days after the date hereof, such Selling Stockholder
will not (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any
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option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any
shares of Stock or any securities convertible into or exercisable or exchangeable for Stock or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise or
(iii) make any demand for or exercise any right with respect to the registration of any shares of
Stock or any security convertible into or exercisable or exchangeable for Stock without the prior
written consent of ▇.▇. ▇▇▇▇▇▇ Securities Inc. or Wachovia Capital Markets, LLC, in each case other
than the Shares to be sold by such Selling Stockholder hereunder. Notwithstanding the foregoing,
if (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or (2) prior to the
expiration of the 180-day restricted period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the 180-day period, the restrictions
imposed by this Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the material news or
material event.
The foregoing shall not apply to (i) transfers of shares of Stock as a bona fide gift or gifts;
(ii) transfers or other dispositions of shares of Stock that are made exclusively between and among
the Selling Stockholder or members of the Selling Stockholder’s family, or the Selling
Stockholder’s partners (if a partnership) or members (if a limited liability company) or to a trust
of which the Selling Stockholder and/or an immediate family member are the only beneficiaries;
provided that any such transfer shall not involve a disposition for value; (iii) transfers to any
trust, partnership, corporation or other entity formed for the direct or indirect benefit of the
Selling Stockholder or the immediate family of the Selling Stockholder, provided that the trustee
of the trust, or such partnership, corporation or other entity, as the case may be, agrees to be
bound in writing by the restrictions set forth in this Section 6(a), and provided further that any
such transfer shall not involve a disposition for value; (iv) if the transfer occurs by operation
of law, such as rules of descent and distribution, transfers pursuant to statutes governing the
effects of a merger or a qualified domestic order, provided that the transferee executes an
agreement acknowledging that the transferee is receiving and holding the shares subject to the
provisions of this Section 6(a) and there shall be no further transfer of such shares except in
accordance with this Section 6(a), and provided further that any such transfer shall not involve a
disposition for value; or (v) transfers to an affiliate (as that term is defined in Rule 405 under
the Securities Act) of the Selling Stockholder, provided that the transferee executes an agreement
acknowledging that the transferee is receiving and holding the shares subject to the provisions of
this Section 6(a) and there shall be no further transfer of such shares except in accordance with
this Section 6(a); provided, that it shall be a condition to any such transfer under clauses (i)
and (ii), that the transferee/donee agrees to be bound by the terms of this Section 6(a) to the
same extent as if the transferee/donee were a party hereto. For purposes of this Section 6(a),
“immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than
first cousin. The foregoing shall also not apply to (x) the sale of shares of Stock to the
Underwriters pursuant to this Agreement, and (y) the sale of shares of Stock or other securities
acquired in open market transactions by the Selling Stockholder after the date hereof.
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(b) Tax Form. It will deliver to the Representatives prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by the Treasury Department regulations in lieu thereof) in order to
facilitate the Underwriters’ documentation of their compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated.
7. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation
by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus,
(ii) any Issuer Free Writing Prospectus listed on Annex C or prepared pursuant to Section 3(c) or
Section 4(c) above, or (iii) any free writing prospectus prepared by such underwriter and approved
by the Company in advance in writing (each such free writing prospectus referred to in clauses (i)
or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred to in
clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Shares unless such terms have previously
been included in a free writing prospectus filed with the Commission; provided that Underwriters
may use a term sheet substantially in the form of Annex D hereto without the consent of the
Company; provided further that any Underwriter using such term sheet shall notify the Company, and
provide a copy of such term sheet to the Company, prior to, or substantially concurrently with, the
first use of such term sheet.
(d) It will, pursuant to reasonable procedures developed in good faith, retain copies of each
free writing prospectus used or referred to by it, in accordance with Rule 433 under the Securities
Act.
(e) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
8. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be as provided herein is subject to the performance by the Company and each
of the Selling Stockholders of their respective covenants and other obligations hereunder and to
the following additional conditions:
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(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to
Section 8A under the Securities Act shall be pending before or threatened by the Commission; the
Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission
under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required
by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests
by the Commission for additional information shall have been complied with to the reasonable
satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company and the
Selling Stockholders contained herein shall be true and correct on the date hereof and on and as of
the Closing Date or the Additional Closing Date, as the case may be; and the statements of the
Company and its officers and of each of the Selling Stockholders made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the Closing Date or the
Additional Closing Date, as the case may be.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement,
no event or condition of a type described in Section 3(f) hereof shall have occurred or shall
exist, which event or condition is not described in the Time of Sale Information (excluding any
amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto)
and the effect of which in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this
Agreement, the Time of Sale Information and the Prospectus.
(d) Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate (i) of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representatives (A) confirming that such officers have
carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and,
to the knowledge of such officers, the representations set forth in Sections 3(b) and 3(d) hereof
are true and correct, (B) confirming that the other representations and warranties of the Company
in this Agreement are true and correct and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such
Closing Date and (C) to the effect set forth in paragraphs (a), (c) and (d) above and (ii) of the
Selling Stockholders, in form and substance reasonably satisfactory to the Representative, (A)
confirming that the representations of such Selling Stockholders set forth in Sections 4(e), 4(f)
and 4(g) hereof are true and correct and (B) confirming that the other representations and
warranties of such Selling Stockholders in this Agreement are true and correct and that such
Selling Stockholders have complied with all agreements and satisfied all conditions on their part
to be performed or satisfied hereunder at or prior to such Closing Date.
(e) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, Ernst & Young LLP shall have furnished to the Representatives, at
the request of the Company, letters, dated the respective dates of delivery thereof and addressed
to the Underwriters, in form and substance reasonably satisfactory to the
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Representatives, containing statements and information of the type customarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement, the Time of Sale Information and the
Prospectus; provided, that the letter delivered on the Closing Date or the Additional Closing Date,
as the case may be shall use a “cut-off” date no more than three business days prior to such
Closing Date or such Additional Closing Date, as the case may be.
(f) Opinion of Counsel for the Company. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, shall
have furnished to the Representatives, at the request of the Company, their written opinion, dated
the Closing Date or the Additional Closing Date, as the case may be, and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect
set forth in Annex A hereto.
(g) Opinion of Counsel for the Selling Stockholders. Counsel for each of the institutional
Selling Stockholders, shall have furnished to the Representatives, at the request of the Selling
Stockholders, their written opinion, dated the Closing Date or the Additional Closing Date, as the
case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex B hereto.
(h) Opinion of Counsel for the Underwriters. The Representatives shall have received on and
as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of Winston &
▇▇▇▇▇▇ LLP, counsel for the Underwriters, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order of
any federal, state or foreign court shall have been issued that would, as of the Closing Date or
the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares.
(j) Good Standing. The Representatives shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company in Delaware and its good standing as a foreign entity in such other jurisdictions as the
Representatives may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(k) Exchange Listing. The Shares to be delivered on the Closing Date or Additional Closing
Date, as the case may be, shall have been approved for listing on the NASDAQ Global Select Market,
subject to official notice of issuance.
(l) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, between you and certain stockholders, officers and directors of the Company
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relating to sales and certain other dispositions of shares of Stock or certain other
securities, delivered to you on or before the date hereof, shall be full force and effect on the
Closing Date or Additional Closing Date, as the case may be.
(m) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company shall have furnished to the Representatives such further certificates
and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
9. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several,
that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information (including any Time of Sale Information that has
subsequently been amended), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in
subsection (b) below.
(b) Indemnification of the Underwriters by the Selling Stockholders. Each of the Selling
Stockholders severally and not jointly in proportion to the number of Shares to be sold by such
Selling Stockholder hereunder agrees to indemnify and hold harmless each Underwriter, its
affiliates, directors and officers and each person, if any, who controls such Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act. from and against
any and all losses, claims, damages and liabilities (including, without limitation, the reasonable
legal fees and other reasonable expenses incurred in connection with any suit, action or proceeding
or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out
of, or are based upon, any untrue statement or alleged untrue statement of a material fact relating
to such Selling Stockholder provided by such Selling Stockholder for use in, and contained in, the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or
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any amendment or supplement thereto, or in any Time of Sale Information, or caused by any
omission or alleged omission to state therein a material fact about the Selling Stockholder
required to be stated therein or necessary to make the statements therein about the Selling
Stockholder, in the light of the circumstances under which they were made, not misleading;
provided, that with respect to any Selling Stockholder, such information must have been furnished
by or on behalf of the Selling Stockholder in writing to the Company expressly for use in the
Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment or
supplement thereto, or in any Time of Sale Information.
(c) Indemnification of the Company and the Selling Stockholders. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers
who signed the Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each of the
Selling Stockholders to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities (including, without limitation, the
reasonable legal fees and other reasonable expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred) that arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to such Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, it being understood and agreed upon that the
only such information furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the ___paragraph under the caption “Underwriting”, the information contained in the ___
paragraph [refer to any paragraph describing passive market making] and the statement that an
affiliate of ▇▇ ▇▇▇▇▇▇ is a lender and the documentation agent under the Company’s credit facility
and an affiliate of Wachovia Capital Markets, LLC is a co-arranger and the collateral agent under
the Company’s credit facility each as described under the caption “Underwriting”.
(d) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section 9 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 9. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, which consent shall not be unreasonably withheld, be counsel to the Indemnifying Person) to
represent the Indemnified Person in such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person
shall have the right to retain its own
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counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary or (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid
or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representatives and any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall be designated in
writing by the Company, and any such separate firm for the Selling Stockholders shall be designated
in writing by the Attorney-in-Fact. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, which consent shall not be unreasonably
withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by paragraphs (a), (b) or (c)
of this Section, the Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 60 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from
all liability on claims that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(e) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders, on the one hand, and the Underwriters, on the other, from the offering of the
Shares or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company and the Selling Stockholders, on the one hand, and the
Underwriters, on the other, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Stockholders, on the one hand, and
the Underwriters, on the other, shall be deemed to be in the same respective proportions as the net
proceeds (before deducting expenses) received by the Company and the Selling Stockholders
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from the sale of the Shares and the total underwriting discounts and commissions received by
the Underwriters in connection therewith, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate offering price of the Shares. The relative fault of the
Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other, shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company and the 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.
(f) Limitation on Liability. The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Selling Stockholders or 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 paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 9, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter with respect to the offering of
the Shares exceeds the amount of any damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities 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
9 are several in proportion to their respective purchase obligations hereunder and not joint.
Notwithstanding anything to the contrary contained herein, the aggregate liability of each Selling
Stockholder under Section 9 hereof shall not exceed the gross proceeds received by such Selling
Stockholder hereunder.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
10. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
11. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company and the Selling Stockholders, if after the execution and
delivery of this Agreement and prior to the Closing Date or, in the case of the Option Shares,
prior to the Additional Closing Date (i) trading generally shall have been suspended or materially
limited on or by either the New York Stock Exchange or the National Association of Securities
Dealers, Inc.; (ii) trading of any securities issued or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any change in
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financial markets or any calamity or crisis, either within or outside the United States, that,
in the judgment of the Representatives, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this
Agreement, the Time of Sale Information and the Prospectus.
12. Defaulting Underwriter. (a) If, on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to purchase the Shares that it
has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Shares by other persons satisfactory to the Company and
the Selling Stockholders on the terms contained in this Agreement. If, within 36 hours after any
such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholders shall be entitled to a further period of
36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree to purchase the
Shares of a defaulting Underwriter, either the non-defaulting Underwriters or the Company and the
Selling Stockholders may postpone the Closing Date or the Additional Closing Date, as the case may
be, for up to five full business days in order to effect any changes that in the opinion of counsel
for the Company, counsel for the Selling Stockholders or counsel for the Underwriters may be
necessary in the Registration Statement and the Prospectus or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus that effects any such changes. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires,
any person not listed in Schedule 1 hereto that, pursuant to this Section 12, purchases Shares that
a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date, then the Company and
the Selling Stockholders shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares that such Underwriter agreed to purchase hereunder on such date plus
such Underwriter’s pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, exceeds
one-eleventh of the aggregate amount of Shares to be purchased on such date, or if the Company and
the Selling Stockholders shall not exercise the right described in paragraph (b) above, then this
Agreement or, with respect to any Additional Closing Date, the obligation of the Underwriters to
purchase Shares on the Additional Closing Date, as the case may be, shall terminate without
liability on the part of the non-defaulting Underwriters. Any termination of
-27-
this Agreement pursuant to this Section 12 shall be without liability on the part of the
Company and the Selling Stockholders, except that the Company will continue to be liable for the
payment of expenses as set forth in Section 13 hereof and except that the provisions of Section 9
hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Stockholders or any non-defaulting Underwriter for damages caused
by its default.
13. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Shares and any taxes payable in that connection; (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus
(including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii)
the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and
expenses of the Company’s counsel and independent accountants; (v) the fees and expenses incurred
in connection with the registration or qualification and determination of eligibility for
investment of the Shares under the laws of such jurisdictions as the Representatives may designate
and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees
and expenses of counsel for the Underwriters up to an aggregate amount of $7,500); (vi) the cost of
preparing stock certificates; (vii) the costs and charges of any transfer agent and any registrar;
(viii) all expenses and application fees incurred in connection with any filing with, and clearance
of the offering by, the National Association of Securities Dealers, Inc.; (ix) all expenses
incurred by the Company in connection with any “road show” presentation to potential investors; and
(x) all expenses and application fees related to the listing of the Shares on the NASDAQ Global
Select Market.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company or the Selling
Stockholders for any reason fails to tender the Shares for delivery to the Underwriters or (iii)
the Underwriters decline to purchase the Shares for any reason permitted under this Agreement, the
Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including
the reasonable fees and expenses of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement and the offering contemplated hereby.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
15. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or
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made by or on behalf of the Company, the Selling Stockholders or the Underwriters pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Shares and shall remain in full force and effect, regardless of any termination of
this Agreement or any investigation made by or on behalf of the Company, the Selling Stockholders
or the Underwriters.
16. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; and (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City.
17. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by mutual consent of ▇▇ ▇▇▇▇▇▇ and Wachovia Capital Markets,
LLC on behalf of the Underwriters, and any such action taken by ▇▇ ▇▇▇▇▇▇ and Wachovia Capital
Markets, LLC shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention:
Equity Syndicate Desk and c/o Wachovia Capital Markets, LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of Equity Syndicate. Notices to the Company shall be given to it at Ulta Salon,
Cosmetics & Fragrance, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (fax: (▇▇▇) ▇▇▇-▇▇▇▇);
Attention: Chief Financial Officer. Notices to the Selling Stockholders shall be given to ▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attorneys-In-Fact, c/o Ulta Salon, Cosmetics & Fragrance, Inc., ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (fax: (▇▇▇) ▇▇▇-▇▇▇▇).
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
-29-
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, | ||||||
| ULTA SALON, COSMETICS & FRAGRANCE, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SELLING STOCKHOLDERS | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Accepted: __________, 2007 | ||||||
| ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. | ||||||
By |
||||||
| Authorized Signatory | ||||||
| WACHOVIA CAPITAL MARKETS, LLC | ||||||
By |
||||||
| Authorized Signatory | ||||||
| For themselves and on behalf of the several Underwriters listed in Schedule 1 hereto. |
||||||
-30-
Schedule 1
| Underwriter | Number of Shares | |
▇.▇. ▇▇▇▇▇▇ Securities Inc.
|
||
Wachovia Capital Markets, LLC |
||
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC |
||
▇▇▇▇▇ and Company, LLC |
||
▇▇▇▇▇ ▇▇▇▇▇▇▇ |
||
Total
|
Schedule I-1
Schedule 2
| Selling Stockholders | Number of Shares | |
-2-
Annex A
Form of Opinion of Counsel for the Company
A-1
Annex B
Form of Opinion of Counsel for the Institutional Selling Stockholders
(a) The Underwriting Agreement has been duly authorized, executed and delivered by or on
behalf of each of the Selling Stockholders.
(b) A Power of Attorney and a Custody Agreement have been duly authorized, executed and
delivered by the Selling Stockholder and constitute valid and binding agreements of the Selling
Stockholder, enforceable in accordance with their terms.
The opinion of counsel described above shall be rendered to the Underwriters at the request of
the Selling Stockholder and shall so state therein, and shall be subject to customary exceptions.
A-1
Annex C
a. Time of Sale Information
[list each Issuer Free Writing Prospectus to be included in the Time of Sale Information]
b. Pricing Information Provided Orally by Underwriters
[set out key information included in script that will be used by underwriters to confirm
sales]
▇-▇
▇▇▇▇▇ ▇
▇▇▇▇ Salon, Cosmetics & Fragrances, Inc.
Pricing Term Sheet