Mistras Group, Inc. Common Stock FORM OF UNDERWRITING AGREEMENT
Exhibit 1.1
Common Stock
FORM OF UNDERWRITING AGREEMENT
, 2009
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
As Representatives (the “Representatives”) of the Several Underwriters,
Dear Sirs:
1. Introductory. Mistras Group, Inc., a Delaware corporation (“Company”), agrees with the
several Underwriters named in Schedule A hereto (“Underwriters”) to issue and sell to the several
Underwriters shares of its common stock, par value $0.01 per share (“Securities”),
and the stockholders listed in Schedule B hereto (“Selling Stockholders”) agree severally with the
Underwriters to sell to the several Underwriters an aggregate of outstanding shares of
the Securities (such shares of Securities being hereinafter referred to as the “Firm Securities”). The Company also
agrees to sell to the Underwriters, at the option of the Underwriters, an aggregate of not more
than additional shares of its Securities and the Selling Stockholders also agree to sell
to the Underwriters, at the option of the Underwriters, an aggregate of not more than
additional outstanding shares (such shares of Securities being hereinafter referred to as the “Optional Securities”) of the
Company’s Securities, as set forth below. The Firm Securities and the Optional Securities are
herein collectively called the “Offered Securities”. As part of the offering contemplated by this
Agreement, (the “Designated Underwriter”) has agreed to reserve out of the Firm
Securities purchased by it under this Agreement, up to shares, for sale to the
Company’s directors, officers, employees and other parties associated with the Company
(collectively, “Participants”), as set forth in the Final Prospectus (as defined herein) under the
heading “Underwriting” (the “Directed Share Program”). The Firm Securities to be sold by the
Designated Underwriter pursuant to the Directed Share Program (the “Directed Shares”) will be sold
by the Designated Underwriter pursuant to this Agreement at the public offering price. Any Directed
Shares not subscribed for by the end of the business day on which this Agreement is executed will
be offered to the public by the Underwriters as set forth in the Final Prospectus.
2. Representations and Warranties of the Company and the Selling Stockholders. (a) The
Company represents and warrants to, and agrees with, the several Underwriters that:
(i) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-1 (No. 333-151559)
covering the registration of the Offered Securities under the Act, including a related
preliminary prospectus or prospectuses. At any particular time, this initial registration
statement, in the form then on file with the Commission, including all information
contained in the registration statement (if any) pursuant to Rule 462(b) and then deemed to
be a part of the initial registration statement, and all 430A Information and all 430C
Information, that in any case has not then been superseded or modified, shall be referred
to as the “Initial Registration Statement”. The Company may also have filed, or may file
with the Commission, a Rule 462(b) registration statement covering the registration of
Offered Securities. At any particular time, this Rule 462(b) registration statement, in
the form then on file with the Commission, including the contents of the Initial
Registration Statement incorporated by reference therein and including all 430A Information
and all 430C Information, that in any case has not then been superseded or modified, shall
be referred to as the “Additional Registration Statement”.
As of the time of execution and delivery of this Agreement, the Initial Registration
Statement has been declared effective under the Act and is not proposed to be amended.
Any Additional Registration Statement has or will become effective upon filing with
the Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered
Securities all have been or will be duly registered under the Act pursuant to the Initial
Registration Statement and, if applicable, the Additional Registration Statement.
For purposes of this Agreement:
“430A Information”, with respect to any registration statement, means information
included in a prospectus and retroactively deemed to be a part of such registration
statement pursuant to Rule 430A(b).
“430C Information”, with respect to any registration statement, means information
included in a prospectus then deemed to be a part of such registration statement pursuant
to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable
Time” means :00 [a/p]m (Eastern time) on the date of this
Agreement.
“Closing Date”has the meaning defined in Section 3 hereof.
“Commission” means the United States Securities and Exchange Commission.
“Effective Time” with respect to the Initial Registration Statement or, if filed prior
to the execution and delivery of this Agreement, the Additional Registration Statement
means the date and time as of which such Registration Statement was declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c). If an
Additional Registration Statement has not been filed prior to the execution and delivery of
this Agreement but the Company has advised the Representatives that it proposes to file
one, “Effective Time” with respect to such Additional Registration Statement means the date
and time as of which such Registration Statement is filed and becomes effective pursuant to
Rule 462(b).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430A Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule C to this Agreement.
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“Issuer Free Writing Prospectus” means any “issuer free writing prospectus”, as
defined in Rule 433, relating to the Offered Securities in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
The Initial Registration Statement and the Additional Registration Statement are
referred to collectively as the “Registration Statements” and individually as a
“Registration Statement”. A “Registration Statement” with reference to a particular time
means the Initial Registration Statement and any Additional Registration Statement as of
such time. A “Registration Statement” without reference to a time means such Registration
Statement as of its Effective Time. For purposes of the foregoing definitions, 430A
Information with respect to a Registration Statement shall be considered to be included in
such Registration Statement as of the time specified in Rule 430A.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
(“▇▇▇▇▇▇▇▇-▇▇▇▇▇”), the Act, the Exchange Act, the Rules and Regulations, the auditing
principles, rules, standards and practices applicable to auditors of “issuers” (as defined
in ▇▇▇▇▇▇▇▇-▇▇▇▇▇) promulgated or approved by the Public Company Accounting Oversight Board
and, as applicable, the rules of the New York Stock Exchange and the NASDAQ Stock Market
(“Exchange Rules”).
“Statutory Prospectus” with reference to a particular time means the prospectus
included in a Registration Statement immediately prior to that time, including any 430A
Information or 430C Information with respect to such Registration Statement. For purposes
of the foregoing definition, 430A Information shall be considered to be included in the
Statutory Prospectus as of the actual time that form of prospectus is filed with the
Commission pursuant to Rule 424(b) or Rule 462(c) and not retroactively.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Act.
(ii) Compliance with Securities Act Requirements. (i) (A) At their respective
Effective Times, (B) on the date of this Agreement and (C) on each Closing Date, each of
the Initial Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all material respects to the requirements of the Act, (ii) on
its date, at the time of filing of the Final Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Time of the Additional Registration Statement in
which the Final Prospectus is included, and on each Closing Date, the Final Prospectus will
conform in all material respects to the requirements of the Act and the Rules and
Regulations and will not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading and (iii)
on the date of this Agreement, at their respective Effective Times or issue dates and on
each Closing Date, each Registration Statement, the Final Prospectus, any Statutory
Prospectus, any prospectus wrapper and any Issuer Free Writing Prospectus complied or
comply, and such documents and any further amendments or supplements thereto will comply,
in all material respects, with any applicable laws or regulations of foreign jurisdictions
in which the Final Prospectus, any Statutory Prospectus, any prospectus wrapper or any
Issuer Free Writing Prospectus, as amended or supplemented, if applicable, are distributed
in connection with the Directed Share Program. The preceding sentence does not apply to
statements in or omissions from any such document based upon written information furnished
to the Company by (a) any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information is that described as
such in Section 8(c) hereof or (b) any Selling Stockholder specifically for use therein, it
being understood and agreed that the only such
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information furnished by such Selling Stockholder (the “Selling Stockholder
Information” of such Selling Stockholder) consists of the information with respect to such
Selling Stockholder that appears in the table and the corresponding footnotes thereto,
excluding any percentages, under the caption “Principal and Selling Stockholders” in the
Final Prospectus and the General Disclosure Package.
(iii) Ineligible Issuer Status. (i) At the time of the initial filing of the Initial
Registration Statement and (ii) at the date of this Agreement, the Company was not and is
not an “ineligible issuer,” as defined in Rule 405, including (x) the Company or any
subsidiary of the Company in the preceding three years not having been convicted of a
felony or misdemeanor or having been made the subject of a judicial or administrative
decree or order as described in Rule 405 and (y) the Company in the preceding three years
not having been the subject of a bankruptcy petition or insolvency or similar proceeding,
not having had a registration statement be the subject of a proceeding under Section 8 of
the Act and not being the subject of a proceeding under Section 8A of the Act in connection
with the offering of the Offered Securities, all as described in Rule 405.
(iv) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time, the
preliminary prospectus, dated , 2009 (which is the most recent Statutory
Prospectus distributed to investors generally) and the other information, if any, stated in
Schedule C to this Agreement to be included in the general disclosure package, all
considered together (collectively, the “General Disclosure Package”), nor (ii) any
individual Limited Use Issuer Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information furnished to
the Company by (a) any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 8(c) hereof or (b) any
Selling Stockholder specifically for use therein, it being understood and agreed that the
only such information furnished by such Selling Stockholder is the Selling Stockholder
Information.
(v) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies
the Representatives as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or as a result of which such
Issuer Free Writing Prospectus, if republished immediately following such event or
development, would include an untrue statement of a material fact or omitted or would omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (i) the Company has promptly
notified or will promptly notify the Representatives and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission. The foregoing two
sentences do not apply to statements in or omissions from any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by (a) any Underwriter
consists of the information described as such in Section 8(c) hereof or (b) any Selling
Stockholder specifically for use therein, it being understood and agreed that the only such
information furnished by such Selling Stockholder is the Selling Stockholder Information.
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(vi) Good Standing of the Company. The Company has been duly incorporated and is
existing and in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the General Disclosure Package; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification, except where
the failure to be so qualified or be in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or otherwise),
results of operations, business or properties of the Company and its subsidiaries taken as
whole (“Material Adverse Effect”).
(vii) Subsidiaries. Each subsidiary of the Company that meets the definition in Rule
1-02(w) of Regulation S-X (each a “Significant
Subsidiary” and collectively, the
“Significant Subsidiaries”) is listed in Schedule D to this Agreement. Each of the
Significant Subsidiaries has been duly incorporated, formed or organized and is existing
and in good standing under the laws of the jurisdiction of its incorporation, formation or
organization with power and authority (corporate and other) to own its properties and
conduct its business as described in the General Disclosure Package; and each Significant
Subsidiary is duly qualified to do business as a foreign entity in good standing in all
other jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so qualified or be in
good standing would not reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect; all of the issued and outstanding equity interests or capital
stock of each subsidiary of the Company have been duly authorized and validly issued and
are fully paid and nonassessable; and the equity interests or capital stock of each
Significant Subsidiary owned by the Company, directly or through subsidiaries, are owned
free from liens, encumbrances and defects, except for such liens and encumbrances (A)
imposed under the Company’s second amended and restated credit agreement, dated as of July
22, 2009, with Bank of America, N.A., JPMorgan Chase Bank, N.A., TD Bank, N.A. and Capital
One, N.A., (B) as would not reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect and (C) as disclosed in the General Disclosure Package or
the Final Prospectus.
(viii) Offered Securities; Capitalization. The Offered Securities and all other
outstanding shares of capital stock of the Company have been duly authorized; the
authorized equity capitalization of the Company is as set forth in the General Disclosure
Package; all outstanding shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this Agreement on each
Closing Date, such Offered Securities will have been, validly issued, fully paid and
nonassessable, and will conform to the information in the General Disclosure Package and to
the description of such Offered Securities contained in the Final Prospectus; the
stockholders of the Company have no preemptive rights with respect to the Securities; and
none of the outstanding shares of capital stock of the Company have been issued in
violation of any preemptive or similar rights of any security holder.
(ix) No Finder’s Fee. Except as disclosed in the General Disclosure Package and as
contemplated by this Agreement, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder’s fee or other like payment
in connection with this offering.
(x) Registration Rights. Except as disclosed in the General Disclosure Package,
there are no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act (collectively,
“registration rights”), and any person to whom the Company has granted registration rights
has agreed not to exercise such rights until after the expiration of the Lock-Up Period
referred to in Section 5(k) hereof.
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(xi) Listing. The Offered Securities have been approved for listing on the New York
Stock Exchange, subject to notice of issuance.
(xii) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any person (including any governmental agency or body
or any court) is required to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale of the Offered
Securities, except (A) for such consents, approvals, authorizations, orders or filings
obtained or made prior to the date hereof or that will have been obtained prior to the
First Closing Date, (B) for the filing of the Registration Statements, as applicable, and
the order of the Commission declaring the Registration Statements effective, (C) such as
may be required under United States federal or state securities laws and (D) for those as
to which the failure to obtain or make would not reasonably be expected to, individually or
in the aggregate, have a material adverse effect on the ability of the Company to execute,
deliver and perform the transactions contemplated by this Agreement. No authorization,
consent, approval, license, qualification or order of, or filing or registration with any
person (including any governmental agency or body or any court) in any foreign jurisdiction
is required to be obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the offering, issuance and sale of the
Directed Shares under the laws and regulations of such jurisdiction except such as have
been obtained or made and the matters set forth in sub clauses (A) through (D) in this
Section 2(xii).
(xiii) Title to Property. Except as disclosed in the General Disclosure Package, the
Company and the Significant Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case free from liens,
charges, encumbrances and defects, except such liens, charges, encumbrances and defects,
that would, individually or in the aggregate, have a Material Adverse Effect, and, except
as disclosed in the General Disclosure Package, the Company and the Significant
Subsidiaries hold all leased real or personal property under valid and enforceable leases
with no terms or provisions that would materially interfere with the use made or to be made
thereof by them, other than those exceptions that would not, individually or in the
aggregate, have a Material Adverse Effect.
(xiv) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of this Agreement, and the issuance and sale of the Offered
Securities will not result in a breach or violation of (A) any of the terms and provisions
of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under,
or result in the imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of the Significant Subsidiaries pursuant to, the charter or by-laws
(or similar organizational documents) of the Company or any of the Significant
Subsidiaries, (B) any statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their properties, or (C) any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties of the Company or any of its
subsidiaries is subject, except with respect to (B) and (C) only, for such breaches,
violations or defaults that would not reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect; a “Debt Repayment Triggering Event” means
any event or condition that gives, or with the giving of notice or lapse of time would
give, the holder of any note, debenture, or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(xv) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws (or similar
organizational documents) or in default (or with the giving of notice or lapse of time
would be in default) under any existing obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which any of them is a party or by which any of them is bound or to which any
of the properties of any of them is subject, except
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such defaults that would not reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect.
(xvi) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(xvii) Possession of Licenses and Permits. (A) The Company and the Significant
Subsidiaries possess, and are in compliance with the terms of, all adequate certificates,
authorizations, franchises, licenses and permits (“Licenses”) necessary or material to the
conduct of the business that the Company currently conducts and neither the Company nor any
of the Significant Subsidiaries has received any written notice of proceedings relating to
the revocation or modification of any such Licenses that, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect and (B) with respect to business that the Company
proposes to conduct in the General Disclosure Package, such Licenses can be obtained on
customary terms and conditions, and neither the Company nor the Significant Subsidiaries
has received any notice of proceedings relating to the revocation or modification of any
such Licenses that, if determined adversely to the Company or any of its subsidiaries
would, individually or in the aggregate, have a Material Adverse Effect.
(xviii) Absence of Labor Dispute. No labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company, is imminent that
could have a Material Adverse Effect.
(xix) Possession of Intellectual Property. The Company and its subsidiaries own,
possess or can acquire on reasonable terms sufficient trademarks, trade names, patent
rights, copyrights, domain names, licenses, approvals, trade secrets, inventions,
technology, know-how and other intellectual property and similar rights, including
registrations and applications for registration thereof (collectively, “Intellectual
Property Rights”) necessary or material to the conduct of the business now conducted or
proposed in the General Disclosure Package to be conducted by them, have not received any
notice of infringement of or conflict with asserted rights of others with respect to any
Intellectual Property Rights that if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate, have a Material Adverse Effect, and
the expected expiration of any such Intellectual Property Rights would not, individually or
in the aggregate, have a Material Adverse Effect. Except as disclosed in the General
Disclosure Package, there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others that the Company or any subsidiary infringes,
misappropriates or otherwise violates or conflicts with any Intellectual Property Rights or
other proprietary rights of others and the Company is unaware of any fact which would form
a reasonable basis for any such claim.
(xx) Environmental Laws. Except as disclosed in the General Disclosure Package,
neither the Company nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure to hazardous
or toxic substances (collectively, “environmental laws”), owns or operates any real
property contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have a Material Adverse Effect;
and the Company is not aware of any pending investigation which might lead to such a claim.
(xxi) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Certain Material U.S. Federal Tax Consequences for
Non-U.S. Holders of Common Stock”, “Description of Capital Stock”, “Business—Legal
Proceedings” and “Certain Relationships and Related Transactions”, insofar as such
statements summarize legal matters, agreements, documents or proceedings discussed therein,
are, in all material respects,
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accurate and fair summaries of such legal matters, agreements, documents or
proceedings and present the information required to be shown.
(xxii) Absence of Manipulation. The Company has not taken, directly or indirectly,
any action that is designed to or that has constituted or that would reasonably be expected
to cause or result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities, except as disclosed in
the General Disclosure Package and Final Prospectus.
(xxiii) Statistical and Market-Related Data. Any third-party statistical and
market-related data included in a Registration Statement, a Statutory Prospectus or the
General Disclosure Package are based on or derived from sources that the Company believes
to be reliable and accurate.
(xxiv) Internal Controls. Except as set forth in the General Disclosure Package, the
Company maintains a system of internal controls, including, but not limited to, disclosure
controls and procedures, internal controls over accounting matters and financial reporting,
an internal audit function and legal and regulatory compliance controls (collectively,
“Internal Controls”) that comply with the Securities Laws and are sufficient to provide
reasonable assurances 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 U.S. Generally Accepted Accounting
Principles and to maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Internal
Controls are, or upon consummation of the offering of the Offered Securities will be,
overseen by the Audit Committee (the “Audit Committee”) of the Company’s Board of Directors
(the “Board”) in accordance with Exchange Rules. Except as disclosed in the General
Disclosure Package, the Company has not publicly disclosed or reported to the Audit
Committee or the Board, since the date of the Company’s most recently audited fiscal year,
and the Company does not reasonably expect to publicly disclose or report to the Audit
Committee or the Board within the next 90 days from the date of this Agreement, a
significant deficiency, material weakness, change in Internal Controls or fraud involving
management or other employees who have a significant role in Internal Controls (each, an
“Internal Control Event”), any violation of, or failure to comply with, the Securities
Laws, or any matter involving internal controls, which in all instances, if determined
adversely, would have a Material Adverse Effect.
(xxv) Absence of Accounting Issues. The Board of Directors of the Company has
confirmed to the Chief Executive Officer or Chief Financial Officer that, except as set
forth in the General Disclosure Package, the Board is not reviewing or investigating, and
neither the Company’s independent auditors nor its internal auditors have recommended that
the Board review or investigate, (i) adding to, deleting, changing the application of, or
changing the Company’s disclosure with respect to, any of the Company’s material accounting
policies; (ii) any matter which could result in a restatement of the Company’s financial
statements for any annual or interim period during the current or prior three fiscal years;
or (iii) any Internal Control Event.
(xxvi) Litigation. Except as disclosed in the General Disclosure Package, there are
no pending actions, suits or proceedings (including any inquiries or investigations by any
court or governmental agency or body, domestic or foreign) against or affecting the
Company, any of the Significant Subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of the Significant Subsidiaries, would
reasonably be expected to, individually or in the aggregate, have a Material Adverse
Effect, or would materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or proceedings (including any
inquiries or investigations by any court or governmental agency or body, domestic or
foreign) are pending or, to the Company’s knowledge, threatened.
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(xxvii) Financial Statements. The financial statements included in each Registration
Statement and the General Disclosure Package present fairly, in all material respects, the
financial position of the Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis; the schedules included in each
Registration Statement present fairly the information required to be stated therein; and
the assumptions used in preparing the pro forma financial statements included in each
Registration Statement and the General Disclosure Package provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or events
described therein; the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(xxviii) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business, or properties of the Company and its
subsidiaries, taken as a whole, that is material and adverse, (ii) except as disclosed in
or contemplated by the General Disclosure Package, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital
stock and (iii) except as disclosed in or contemplated by the General Disclosure Package,
there has been no material adverse change in the capital stock, short-term indebtedness,
long-term indebtedness, net current assets or net assets of the Company and the Significant
Subsidiaries.
(xxix) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds thereof as
described in the General Disclosure Package, will not be an “investment company” as defined
in the Investment Company Act of 1940 (the “Investment Company Act”).
(xxx) Ratings. No “nationally recognized statistical rating organization” as such
term is defined for purposes of Rule 436(g)(2) (i) has imposed (or has informed the Company
that it is considering imposing) any condition (financial or otherwise) on the Company’s
retaining any rating assigned to the Company or any securities of the Company or (ii) has
indicated to the Company that it is considering any of the actions described in Section
7(c)(ii) hereof.
(xxxi) PFIC Status. No subsidiary of the Company created or organized outside of the
United States was a “passive foreign investment company” (“PFIC”) as defined in Section
1297 of the United States Internal Revenue Code of 1986, as amended (the “Code”), for its
most recently completed taxable year and, based on the relevant subsidiary’s current
projected income, assets and activities, it does not expect to be classified as a PFIC for
any subsequent taxable year.
(xxxii) Absence of Unlawful Influence. The Company has not offered or sold, or
caused the Underwriters to offer or sell, any Offered Securities to any person pursuant to
the Directed Share Program with the specific intent to unlawfully influence (i) a customer
or supplier of the Company to alter the customer’s or supplier’s level or type of business
with the Company or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
(xxxiii) Compliance with Various Laws and Regulations. Each of the Company, the
Significant Subsidiaries, their affiliates and, to the Company’s knowledge, any of their
respective officers, directors, supervisors, managers, agents, or employees, has not
violated, and its participation in the offering will not violate, each of the following
laws: (a) anti-bribery laws, including but not limited to, any applicable law, rule, or
regulation of any locality, including but not limited to any law, rule, or regulation
promulgated to implement the OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions, signed December 17, 1997, including the
U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule or regulation of
9
similar purpose and scope, (b) anti-money laundering laws, including but not limited
to, applicable Federal, state, international, foreign or other laws, regulations or
government guidance regarding anti-money laundering, including, without limitation, Title
18 U.S. Code Sections 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and
international anti-money laundering principals or procedures by an intergovernmental group
or organization, such as the Financial Action Task Force on Money Laundering, of which the
United States is a member and with which designation the United States representative to
the group or organization continues to concur, all as amended, and any Executive order,
directive, or regulation pursuant to the authority of any of the foregoing, or any orders
or licenses issued thereunder or (c) laws and regulations imposing U.S. economic sanctions
measures, including, but not limited to, the International Emergency Economic Powers Act,
the Trading with the Enemy Act, the United Nations Participation Act and the Syria
Accountability and Lebanese Sovereignty Act, all as amended, and any Executive Order,
directive, or regulation pursuant to the authority of any of the foregoing, including the
regulations of the United States Treasury Department set forth under 31 CFR, Subtitle B,
Chapter V, as amended, or any orders or licenses issued thereunder.
(xxxiv) Tax Filings. The Company and its subsidiaries have filed all federal, state,
local and non-U.S. tax returns that are required to be filed or have requested extensions
thereof (except in any case in which the failure so to file would not have a Material
Adverse Effect); and, except as set forth in the General Disclosure Package, the Company
and its subsidiaries have paid all taxes (including any assessments, fines or penalties)
required to be paid by them, except for any such taxes, assessments, fines or penalties
currently being contested in good faith or as would not, individually or in the aggregate,
have a Material Adverse Effect.
(xxxv) Insurance. The Company and its subsidiaries are insured by insurers with
appropriately rated claims paying abilities against such losses and risks and in such
amounts as are customary for the businesses in which they are engaged; all policies of
insurance insuring the Company or any of its subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or any of its subsidiaries under
any such policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; the Company has not been refused any
insurance coverage sought or applied for; neither the Company nor any such subsidiary has
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 from similar insurers as may
be necessary to continue its business at a cost that would not have a Material Adverse
Effect, except as set forth in or contemplated in the General Disclosure Package.
(b) Each Selling Stockholder severally represents and warrants to, and agrees with, the
several Underwriters that:
(i) Title to Securities. Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the Offered Securities to
be delivered by such Selling Stockholder on such Closing Date and full right, power and
authority to enter into this Agreement and to sell, assign, transfer and deliver the
Offered Securities to be delivered by such Selling Stockholder on such Closing Date
hereunder; and upon the delivery of and payment for the Offered Securities on each Closing
Date hereunder the several Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such Closing Date.
(ii) Absence of Further Requirements. No consent, approval, authorization or order
of, or filing with, any person (including any governmental agency or body or any court) is
required to be obtained or made by such Selling Stockholder for the consummation of the
transactions contemplated by the Custody Agreement or this Agreement in connection with the
offering and sale of the Offered Securities sold by the Selling Stockholders, except (A)
for such consents, approvals, authorizations, orders or filings obtained or made prior to
the date hereof or that will have been obtained prior to the First Closing Date, (B) for
the filing of the Registration
10
Statements, as applicable, and the order of the Commission declaring the Registration
Statements effective, (C) such as have been obtained and made under the Act and such as may
be required under federal and state securities laws; and (D) for those as to which the
failure to obtain or make would not reasonably be expected to, individually or in the
aggregate, have an adverse effect on the ability of the Selling Stockholder to execute,
deliver and perform the transactions contemplated by this Agreement;
(iii) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of the Custody Agreement and this Agreement and the consummation
of the transactions therein and herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under, or result
in the imposition of any lien, charge or encumbrance upon any property or assets of such
Selling Stockholders pursuant to, (A) any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over such Selling Stockholder
or any of its properties, (B) any agreement or instrument to which such Selling Stockholder
is a party or by which such Selling Stockholder is bound or to which any of the properties
of any Selling Stockholder is subject, or (C) if such Selling Stockholder is an entity, the
charter or by-laws or other organizational documents of such Selling Stockholder; except in
the case of (A) and (B) only, for such breach, violation, or default that would not
reasonably be expected to, individually or in the aggregate, have a material adverse effect
on the ability of such Selling Stockholder to consummate the transactions contemplated by
this Agreement.
(iv) Custody Agreement. The Power of Attorney and related Custody Agreement with
respect to the such Selling Stockholder has been duly authorized, executed and delivered by
such Selling Stockholder and constitute valid and legally binding obligations of such
Selling Stockholder enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles.
(v) Compliance with Securities Act Requirements. (i) (A) At their respective
Effective Times, (B) on the date of this Agreement and (C) on each Closing Date, each of
the Initial Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all respects to the requirements of the Act, (ii) on its
date, at the time of filing of the Final Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Time of the Additional Registration Statement in which
the Final Prospectus is included, and on each Closing Date, the Final Prospectus will not
include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (iii) on the date of this
Agreement, at their respective Effective Times or issue dates and on each Closing Date,
each Registration Statement, the Final Prospectus, any Statutory Prospectus and any
prospectus wrapper complied or comply, and such documents and any further amendments or
supplements thereto will comply, with any applicable laws or regulations of foreign
jurisdictions in which the Final Prospectus, any Statutory Prospectus or any prospectus
wrapper, as amended or supplemented, if applicable, are distributed in connection with the
Directed Share Program. The preceding sentence applies only to the extent that any such
statement in or omissions from any such document is made in reliance upon and in conformity
with written information furnished to the Company by such Selling Stockholder specifically
for use therein, it being understood and agreed that the only such information furnished by
such Selling Stockholder is the Selling Stockholder Information.
(vi) No Undisclosed Material Information. The sale of the Offered Securities by such
Selling Stockholder pursuant to this Agreement is not prompted by any material information
concerning the Company or any of the Significant Subsidiaries that is not set forth the
General Disclosure Package.
(vii) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by such Selling Stockholder.
11
(viii) No Finder’s Fee. Except as disclosed in the General Disclosure Package or as
contemplated by this Agreement, there are no contracts, agreements or understandings
between such Selling Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage commission, finder’s
fee or other like payment in connection with the issuance or sale of Offered Securities.
(ix) Absence of Manipulation. Such Selling Stockholder has not taken, directly or
indirectly, any action that is designed to or that has constituted or that would reasonably
be expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Offered Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company and
each Selling Stockholder agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and each Selling
Stockholder, at a purchase price of $ per share, that number of Firm Securities
(rounded up or down, as determined by the Representatives in their discretion, in order to avoid
fractions) obtained by multiplying Firm Securities in the case of the Company and the
number of Firm Securities set forth opposite the name of such Selling Stockholder in Schedule B
hereto, in the case of a Selling Stockholder, in each case by a fraction the numerator of which is
the number of Firm Securities set forth opposite the name of such Underwriter in Schedule A hereto
and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by the Selling
Stockholders hereunder have been placed in custody, for delivery under this Agreement, under
Custody Agreements made with the Company, as custodian (“Custodian”). Each Selling Stockholder
agrees that the shares represented by the certificates held in custody for the Selling Stockholders
under such Custody Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that extent irrevocable, and
that the obligations of the Selling Stockholders hereunder shall not be terminated by operation of
law, whether by the death of any individual Selling Stockholder or the occurrence of any other
event, or in the case of a trust, by the death of any trustee or trustees or the termination of
such trust. If any individual Selling Stockholder or any such trustee or trustees should die, or
if any other such event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for such Offered Securities shall be
delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such
death or other event or termination had not occurred, regardless of whether or not the Custodian
shall have received notice of such death or other event or termination.
The Company and the Custodian (on behalf of the Selling Stockholders) will deliver the Firm
Securities to or as instructed by the Representatives for the accounts of the several Underwriters
in a form reasonably acceptable to the Representatives against payment of the purchase price by the
Underwriters in Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to the Representatives drawn to the order of the Company in the case
of shares of the Firm Securities sold by the Company, and the Company, as Custodian for the Selling
Stockholders, in the case of the Firm Securities sold by the Selling Stockholders, at the office of
Cravath, Swaine & ▇▇▇▇▇ LLP, at 10:00 A.M., New York time, on , 2009, or at such other
time not later than seven full business days thereafter as the Representatives and the Company
determine, such time being herein referred to as the “First Closing Date”. For purposes of Rule
15c6-1 under the Securities Exchange Act of 1934, the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment of funds and
delivery of securities for all the Offered Securities sold pursuant to the offering. The Firm
Securities so to be delivered or evidence of their issuance will be made available for checking at
the above office of Cravath, Swaine & ▇▇▇▇▇ LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the Company and the Selling
Stockholders from time to time not more than 30 days subsequent to the date of the Final
Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company and the Selling
Stockholders agree, severally and not
12
jointly, to sell to the Underwriters the respective numbers of Optional Securities obtained by
multiplying the number of Optional Securities specified in such notice by a fraction the numerator
of which is in the case of the Company and the number of shares set forth opposite the
names of such Selling Stockholders in Schedule B hereto under the caption “Number of Optional
Securities to be Sold” in the case of the Selling Stockholders and the denominator of which is the
total number of Optional Securities (subject to adjustment by the Representatives to eliminate
fractions). Such Optional Securities shall be purchased from the Company and each Selling
Stockholder for the account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter’s name bears to the total number of Firm Securities
(subject to adjustment by the Representatives to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection with the sale of
the Firm Securities. No Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice by the
Representatives to the Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representatives but shall be not earlier than two business days and not later
than five full business days after written notice of election to purchase Optional Securities is
given. The Company and the Custodian will deliver the Optional Securities being purchased on each
Optional Closing Date to or as instructed by the Representatives for the accounts of the several
Underwriters in a form reasonably acceptable to the Representatives, against payment by the
Underwriters of the purchase price therefore in Federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to the Representatives drawn to the
order of the Company in the case of Optional Securities sold by the Company and to the Company, as
Custodian for the Selling Stockholders, in the case of the Optional Securities sold by the Selling
Stockholders, at the office of Cravath, Swaine & ▇▇▇▇▇ LLP. The Optional Securities being purchased
on each Optional Closing Date or evidence of their issuance will be made available for checking at
the above office of Cravath, Swaine & ▇▇▇▇▇ LLP at a reasonable time in advance of such Optional
Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The Company agrees with
the several Underwriters and the Selling Stockholders that:
(a) Additional Filings. Unless filed pursuant to Rule 462(c) as part of the
Additional Registration Statement in accordance with the next sentence, the Company will
file the Final Prospectus, in a form approved by the Representatives with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, which consent shall not be unreasonably withheld, subparagraph
(4)) of Rule 424(b) not later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business day after the
Effective Time of the Initial Registration Statement. The Company will advise the
Representatives promptly of any such filing pursuant to Rule 424(b) and provide
satisfactory evidence to the Representatives of such timely filing. If an Additional
Registration Statement is necessary to register a portion of the Offered Securities under
the Act but the Effective Time thereof has not occurred as of the execution and delivery of
this Agreement, the Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time the Final Prospectus is finalized and
distributed to any Underwriter, or will make such filing at such later date as shall have
been consented to by the Representatives.
13
(b) Filing of Amendments: Response to Commission Requests. The Company will promptly
advise the Representatives of any proposal to amend or supplement at any time the Initial
Registration Statement, any Additional Registration Statement or any Statutory Prospectus
and will not effect such amendment or supplementation without the Representatives’ consent,
which consent shall not be unreasonably withheld; and the Company will also advise the
Representatives promptly of (i) the effectiveness of any Additional Registration Statement
(if its Effective Time is subsequent to the execution and delivery of this Agreement), (ii)
any amendment or supplementation of a Registration Statement or any Statutory Prospectus,
(iii) any request by the Commission or its staff for any amendment to any Registration
Statement, for any supplement to any Statutory Prospectus or for any additional
information, (iv) the institution by the Commission of any stop order proceedings in
respect of a Registration Statement or the threatening of any proceeding for that purpose,
and (v) the receipt by the Company of any notification with respect to the suspension of
the qualification of the Offered Securities in any jurisdiction or the institution or
threatening of any proceedings for such purpose. The Company will use its commercially
reasonable efforts to prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued Compliance with Securities Laws. If, at any time when a prospectus
relating to the Offered Securities is (or but for the exemption in Rule 172 would be)
required to be delivered under the Act by any Underwriter or dealer, any event occurs as a
result of which the Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act, the Company will promptly notify
the Representatives of such event and will promptly prepare and file with the Commission
and furnish, at its own expense, to the Underwriters and the dealers and any other dealers
upon request of the Representatives, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. Neither the
Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
(d) Rule 158. As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning after the Effective
Date of the Initial Registration Statement (or, if later, the Effective Time of the
Additional Registration Statement) which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act. For the purpose of the preceding sentence,
“Availability Date” means the day after the date the Company is required to file its Form
10-Q for the fourth fiscal quarter following the fiscal quarter that includes such
Effective Time on which the Company is required to file its Form 10-Q for such fiscal
quarter except that, if such fourth fiscal quarter is the last quarter of the Company’s
fiscal year, “Availability Date” means the day after the end of such fourth fiscal quarter
on which the Company is required to file its Form 10-K.
(e) Furnishing of Prospectuses. The Company will furnish to the Representatives
copies of each Registration Statement (3 of which will be signed and will include all
exhibits), each related Statutory Prospectus, and, so long as a prospectus relating to the
Offered Securities is (or but for the exemption in Rule 172 would be) required to be
delivered under the Act, the Final Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representatives request. The Final
Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the execution and delivery of this Agreement. All other such documents shall
be so furnished as soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) Blue Sky Qualifications. The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the Representatives
designate and will
14
continue such qualifications in effect so long as required for the distribution of the
Offered Securities by the Underwriters; provided that the Company will not be required to
(i) qualify as a foreign corporation or other entity as a dealer in securities in such
jurisdiction, (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) Reporting Requirements. For five years, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters, as soon as
practicable after the end of each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of the Company filed
with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as the Representatives may reasonably
request. However, so long as the Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with
the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“▇▇▇▇▇”),
it is not required to furnish such reports or statements to the Underwriters.
(h) Payment of Expenses. The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the obligations of the Company
and the Selling Stockholders under this Agreement, including but not limited to any filing
fees and other expenses (including fees and disbursements of counsel to the Underwriters)
incurred in connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions as the Representatives designate and the preparation and printing of
memoranda relating thereto costs and expenses related to the review by the National
Association of Securities Dealers, Inc. of the Offered Securities (including filing fees
and the fees and expenses of counsel for the Underwriters relating to such review) costs
and expenses relating to investor presentations or any “road show” in connection with the
offering and sale of the Offered Securities including, without limitation, any travel
expenses of the Company’s officers and employees and any other expenses of the Company
including the chartering of airplanes, fees and expenses incident to listing the Offered
Securities on the New York Stock Exchange, American Stock Exchange, NASDAQ Global Stock
Market and other national and foreign exchanges, fees and expenses in connection with the
registration of the Offered Securities under the Exchange Act and expenses incurred in
distributing preliminary prospectuses and the Final Prospectus (including any amendments
and supplements thereto) to the Underwriters and for expenses incurred for preparing,
printing and distributing any Issuer Free Writing Prospectuses to investors or prospective
investors. Each Selling Stockholder agrees with the several Underwriters that such Selling
Stockholder will pay any transfer taxes on the sale by such Selling Stockholder of his, her
or its Offered Securities to the Underwriters.
(i) Use of Proceeds. The Company will use the net proceeds received by it in
connection with this offering in the manner described in the “Use of Proceeds” section of
the General Disclosure Package and, except as disclosed in the General Disclosure Package,
the Company does not intend to use any of the proceeds from the sale of the Offered
Securities hereunder to repay any outstanding debt owed to any affiliate of any
Underwriter.
(j) Absence of Manipulation. The Company and the Selling Stockholders will not take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the Offered Securities.
(k) Restriction on Sale of Securities by Company. For the period specified below
(the “Lock-Up Period”), the Company will not, directly or indirectly, take any of the
following actions with respect to its Securities, the Underlying Shares or any securities
convertible into or exchangeable or exercisable for any of its Securities or Underlying
Shares (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or
otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell,
contract to purchase or grant any option, right or
15
warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other
agreement that transfers, in whole or in part, the economic consequences of ownership of
Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or
decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16
of the Exchange Act or (v) file with the Commission a registration statement under the Act
relating to Lock-Up Securities, or publicly disclose the intention to take any such action,
without the prior written consent of the Representatives, except (i) issuances of Lock-Up
Securities upon the exercise of options disclosed as outstanding in the General Disclosure
Package or described in subsection (ii) below, (ii) the grant by the Company of stock
options, stock appreciation rights, restricted stock, restricted stock units or other
stock-based awards pursuant to the Company’s 2009 Long-Term Incentive Plan as described in
the General Disclosure Package, (iii) the issuance by the Company of Securities in an
amount not to exceed 10% of the total number of shares of Offered Securities as
consideration or partial consideration for the acquisition of another corporation or entity
or the acquisition of assets or properties of any such corporation or entity, or in
connection with a licensing, lending or similar transaction, (iv) issuances of Securities
upon the conversion of all of the Class A Convertible Redeemable Preferred Stock and Class
B Convertible Redeemable Preferred Stock as described in the General Disclosure Package
upon the closing of the transactions contemplated by this Agreement or (v) the filing of
any registration statement on Form S-8 with respect to any stock incentive plan or stock
ownership plan relating to securities described in clause (i) or (ii) above; provided,
however, that in each case described in clause (iii) above, each of the recipients of the
Securities agrees in writing to the Representatives to be bound by the restrictions
described in this paragraph for the remainder of such Lock-Up Period. The initial Lock-Up
Period will commence on the date hereof and continue for 180 days after the date hereof or
such earlier date that the Representatives consent to in writing; provided, however, that
if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings
results or material news or a material event relating to the Company occurs or (2) prior to
the expiration of the initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the initial Lock-Up
Period, then in each case the Lock-Up Period will be extended until the expiration of the
18-day period beginning on the date of release of the earnings results or the occurrence of
the materials news or material event, as applicable, unless the Representatives waive, in
writing, such extension. The Company will provide the Representatives with notice of any
announcement described in clause (2) of the preceding sentence that gives rise to an
extension of the Lock-Up Period.
(l) Transfer Restriction. In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent required by the
Financial Industry Regulatory Authority (“FINRA”) or the FINRA rules from sale, transfer,
assignment, pledge or hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. The Designated Underwriter will notify the
Company as to which Participants will need to be so restricted. The Company will direct the
transfer agent to place stop transfer restrictions upon such securities for such period of
time.
(m) Payment of Expenses Related to Directed Share Program. The Company will pay all
fees and disbursements of counsel (including non-U.S. counsel) incurred by the Underwriters
in connection with the Directed Share Program and stamp duties, similar taxes or duties or
other taxes, if any, incurred by the Underwriters in connection with the Directed Share
Program.
(n) Compliance with Foreign Laws. The Company will comply with all applicable
securities and other applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed Shares are offered in connection with the Directed Share Program;
provided that the Company will not be required to qualify as a foreign corporation or to
file a general consent to service of process in any such jurisdiction.
6. Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Company and Selling
Stockholders represent and agree that, unless they obtain the prior consent of the Representatives,
and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company
and the
16
Representatives, it has not made and will not make any offer relating to the Offered
Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be filed
with the Commission. Any such free writing prospectus consented to by the Company and the
Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus
as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record keeping. The Company
represents that is has satisfied and agrees that it will satisfy the conditions in Rule 433 to
avoid a requirement to file with the Commission any electronic road show.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional
Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholders herein on the date
hereof (and as though made on such Closing Date), to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Representatives shall have received letters,
dated, respectively, the date hereof and each Closing Date, of each of
PricewaterhouseCoopers LLP and Amper, Politziner & ▇▇▇▇▇▇ LLP confirming that they are each
a registered public accounting firm and independent public accountants within the meaning
of the Securities Laws and in form and substance reasonably satisfactory to the
Representatives (except that, in any letter dated a Closing Date, the specified date
referred to shall be a date no more than three days prior to such Closing Date).
(b) Effectiveness of Registration Statement. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Final Prospectus is
finalized and distributed to any Underwriter, or shall have occurred at such later time as
shall have been consented to by the Representatives. The Final Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and Section 5(a)
hereof. Prior to such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, nor any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business or properties of the Company and its subsidiaries taken as a whole
which, in the judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Company by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or
any public announcement that any such organization has under surveillance or review its
rating of any debt securities or preferred stock of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls the effect
of which is such as to make it, in the judgment of the Representatives, impractical to
market or to enforce contracts for the sale of the Offered Securities, whether in the
primary market or in respect of dealings in the secondary market; (iv) any suspension or
material limitation of trading in securities generally on the New York Stock Exchange or
any setting of minimum or maximum prices for trading on such exchange; (v) any suspension
of trading of any securities of the Company on any exchange or in the over-the-counter
market; (vi) any banking moratorium declared by any U.S.
17
Federal or New York authorities; (vii) any major disruption of settlements of
securities, payment or clearance services in the United States or any other country where
such securities are listed or (viii) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment of the
Representatives, the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is such as to make it impractical or inadvisable to market the
Offered Securities or to enforce contracts for the sale of the Offered Securities.
(d) Opinion of Counsel for the Company. The Representatives shall have received an
opinion, dated such Closing Date, of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Company,
in form and substance reasonably satisfactory to the Representatives.
(e) Opinion of Counsel for Selling Stockholders. The Representatives shall have
received an opinion, dated such Closing Date, of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for
the Selling Stockholders, in form and substance reasonably satisfactory to the
Representatives.
(f) Opinion of Counsel for Underwriters. The Representatives shall have received
from Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to such matters as the Representatives may require,
and the Selling Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such matters.
(g) Officer’s Certificate. The Representatives shall have received a certificate,
dated such Closing Date, of an executive officer of the Company and a principal financial
or accounting officer of the Company in which such officers shall state that: the
representations and warranties of the Company in this Agreement are true and correct; 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; no stop order suspending
the effectiveness of any Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of their knowledge and after reasonable
investigation, are contemplated by the Commission; the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely
filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to the date of
the most recent financial statements in the General Disclosure Package, there has been no
material adverse change in the condition (financial or otherwise), results of operations,
business, properties or prospects of the Company and its subsidiaries taken as a whole
except as set forth in the General Disclosure Package or as described in such certificate.
(h) Lock-Up Agreements. On or prior to the date hereof, the Representatives shall
have received lockup letters from (i) each of the executive officers and directors of the
Company and (ii) all stockholders of the Company.
(i) Form 1099. The Custodian shall have delivered to the Representatives a letter
stating that they will deliver to each Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by the United States
Treasury Department regulations in lieu thereof) on or before January 31 of the year
following the date of this Agreement.
(j) Chief Financial Officer’s Certificate. The Representatives shall have received a
certificate, dated the date hereof, of the Chief Financial Officer of the Company in form
and substance reasonably satisfactory to the Representatives.
The Selling Stockholders and the Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
18
8. Indemnification and Contribution. (a) Indemnification of Underwriters by Company. The
Company will indemnify and hold harmless each Underwriter, its partners, members, directors,
officers, employees, agents, affiliates and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each an “Indemnified
Party”), against any and all losses, claims, damages or liabilities, joint or several, to which
such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state
statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any part of any Registration Statement at any
time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse each Indemnified Party
for any legal or other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending against any loss, claim, damage, liability, action, litigation,
investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto),
whether threatened or commenced, and in connection with the enforcement of this provision with
respect to any of the above as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (c) below.
The Company agrees to indemnify and hold harmless the Designated Underwriter and its
affiliates and each person, if any, who controls the Designated Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act (the “Designated Entities”), from
and against any and all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or investigating any such
action or claim) (i) arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in any material prepared by or with the consent of the Company for
distribution to Participants in connection with the Directed Share Program or arising out of or
based upon any omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) arising out of or based upon the
failure of any Participant to pay for and accept delivery of Directed Shares that the Participant
agreed to purchase; or (iii) arising out of, related to, or in connection with the Directed Share
Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the willful misconduct or gross negligence of
the Designated Entities.
(b) Indemnification of Underwriters by the Selling Stockholders. Each Selling Stockholder,
severally and not jointly, will indemnify and hold harmless each Indemnified Party against any and
all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may
become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation
or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any part of any Registration Statement at any time, any Statutory
Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out
of or are based upon the omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, in each case only to the extent that such untrue statements or alleged
untrue statements in or omissions or alleged omissions from a Registration Statement or the Final
Prospectus were made in reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder specifically for use therein, it being understood and agreed
that the only such information furnished by such Selling Stockholder is the Selling Stockholder
Information and will reimburse each Indemnified Party for any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending against any loss,
claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or
not such Indemnified Party is a party thereto), whether threatened or commenced, in connection with
the enforcement of this provision with respect to the above as such expenses are incurred;
provided, however, that such Selling Stockholder will
19
not be liable in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (c) below; provided
further, however, that the liability under this subsection of each Selling Stockholder shall be
limited to an amount equal to the aggregate gross proceeds after deducting underwriting commissions
and discounts, but before deducting expenses, to such Selling Stockholder from the sale of the Firm
Securities sold by such Selling Stockholder hereunder.
(c) Indemnification of Company and Selling Stockholders. Each Underwriter will severally and
not jointly indemnify and hold harmless the Company, each of its directors and each of its officers
who signs a Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and each Selling Stockholder
(each, an “Underwriter Indemnified Party”) against any losses, claims, damages or liabilities to
which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, or
other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any Registration Statement
at any time, any Statutory Prospectus at any time, the Final Prospectus or any Issuer Free Writing
Prospectus or arise out of or are based upon the omission or the alleged omission of a material
fact required to be stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Representatives specifically
for use therein, and will reimburse any legal or other expenses reasonably incurred by such
Underwriter Indemnified Party in connection with investigating or defending against any such loss,
claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or
not such Underwriter Indemnified Party is a party thereto), whether threatened or commenced, based
upon any such untrue statement or omission, or any such alleged untrue statement or omission as
such expenses are incurred, it being understood and agreed that the only such information furnished
by any Underwriter consists of the following information in the Final Prospectus appearing under
the caption “Underwriting”: the concession and reallowance figures appearing in the fourth
paragraph.
(d) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under subsection (a), (b) or
(c) above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a),
(b) or (c) above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability that it may have
to an indemnified party otherwise than under subsection (a), (b) or (c) above. In case any such
action is brought against any indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding anything contained
herein to the contrary, if indemnity may be sought pursuant to the last paragraph in Section 8 (a)
hereof in respect of such action or proceeding, then in addition to such separate firm for the
indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for the Designated Underwriter
for the defense of any losses, claims, damages and liabilities arising out of the Directed Share
Program, and all persons, if any, who control the Designated Underwriter within the meaning of
either Section 15 of the Act of Section 20 of the Exchange Act. No indemnifying party shall,
without the prior written consent of the
20
indemnified party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement (i) includes an unconditional release of
such indemnified party from all liability on any claims that are the subject matter of such action
and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to
act by or on behalf of an indemnified party.
(e) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company, the
Selling Stockholders or the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to
in the first sentence of this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), (i) no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission and (ii) the liability under this subsection of each Selling Stockholder shall be
limited to an amount equal to the aggregate gross proceeds after underwriting commissions and
discounts, but before expenses, to such Selling Stockholder from the sale of Firm Securities sold
by such Selling Stockholder hereunder. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting obligations and not
joint. The Selling Stockholders’ obligations in this subsection (e) to contribute are several in
proportion to their respective negative obligations and not joint The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8(e) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 8(e).
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on either the First or any Optional Closing Date and the
aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to purchase on such Closing
Date. If any Underwriter or Underwriters so default and the aggregate number of
21
shares of Offered Securities with respect to which such default or defaults occur exceeds 10%
of the total number of shares of Offered Securities that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Representatives, the Company and the
Selling Stockholders for the purchase of such Offered Securities by other persons are not made
within 36 hours after such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter, the Company or the Selling Stockholders, except as provided in
Section 10 (provided that if such default occurs with respect to Optional Securities after the
First Closing Date, this Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the term “Underwriter”
includes any person substituted for an Underwriter under this Section. Nothing herein will relieve
a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Selling Stockholders, of the
Company or its officers and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, any Selling Stockholder, the Company
or any of their respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Offered Securities. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9 hereof, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered Securities, and the
respective obligations of the Company, the Selling Stockholders and the Underwriters pursuant to
Section 8 hereof shall remain in effect. In addition, if any Offered Securities have been purchased
hereunder, the representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representatives c/o
▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: Equity Syndicate Desk; Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: LCD-IBD; and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇), Attention:
Syndicate Department, with a copy to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ECM Legal; or, if sent
to the Company, will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer, with a copy to
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇; or, if sent to the Selling Stockholders or any of them, will be mailed, delivered
or telegraphed and confirmed to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ at Mistras Group, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ at TC NDT Holdings, LLC, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇; provided, however, that any notice to an Underwriter
pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective personal representatives and successors and the officers and directors
and controlling persons referred to in Section 8, and no other person will have any right or
obligation hereunder.
13. Representation. The Representatives will act for the several Underwriters in connection
with the transactions contemplated by this Agreement, and any action under this Agreement taken by
the Representatives jointly will be binding upon all the Underwriters. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ will act for the Selling Stockholders in connection with such transactions, and
any action under or in respect of this Agreement taken by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ will be binding upon all the Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
22
15. Absence of Fiduciary Relationship. The Company and the Selling Stockholders severally
acknowledge and agree that:
(a) No Other Relationship. The Representatives have been retained solely to act as
underwriters in connection with the sale of the Offered Securities and that no fiduciary, advisory
or agency relationship between the Company or the Selling Stockholders, on the one hand, and the
Representatives, on the other, has been created in respect of any of the transactions contemplated
by this Agreement or the Final Prospectus, irrespective of whether the Representatives have advised
or are advising the Company or the Selling Stockholders on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by Company and the Selling Stockholders following discussions and
arms-length negotiations with the Representatives and the Company and the Selling Stockholders are
capable of evaluating and understanding and understand and accept the terms, risks and conditions
of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company and the Selling Stockholders have been
advised that the Representatives and their affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company or the Selling Stockholders and
that the Representatives have no obligation to disclose such interests and transactions to the
Company or the Selling Stockholders by virtue of any fiduciary, advisory or agency relationship;
and
(d) Waiver. The Company and the Selling Stockholders waive, to the fullest extent permitted
by law, any claims they may have against the Representatives for breach of fiduciary duty or
alleged breach of fiduciary duty and agree that the Representatives shall have no liability
(whether direct or indirect) to the Company or the Selling Stockholders in respect of such a
fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of
the Company, including stockholders, employees or creditors of the Company.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby in Federal and state
courts in the Borough of Manhattan in the City of New York and irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such suit or proceeding in any
such court has been brought in an inconvenient forum.
23
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement among the Selling Stockholders, the Company and the several Underwriters in
accordance with its terms.
| Very truly yours, |
| Mistras Group, Inc. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| On behalf of the Selling Stockholders set forth in Schedule B, |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. | ||||||||
| ▇.▇. ▇▇▇▇▇▇ Securities Inc. | ||||||||
| By: | ||||||||
| Name: Title: |
||||||||
| Credit Suisse Securities (USA) LLC | ||||||||
| By: | ||||||||
| Name: Title: |
||||||||
| ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ | ||||||||
| Incorporated | ||||||||
| By: | ||||||||
| Name: Title: |
||||||||
| Acting on behalf of themselves and as the Representatives of the several Underwriters. | ||||||||