Number of Shares] RealPage, Inc. Common Stock, $0.001 par value per share UNDERWRITING AGREEMENT
Exhibit 1.1
[Number of Shares]
RealPage, Inc.
Common Stock, $0.001 par value per share
, 2010
Credit Suisse Securities (USA) LLC,
Deutsche Bank Securities Inc.
Deutsche Bank Securities Inc.
As Representatives of the Several Underwriters,
| c/o | Credit Suisse Securities (USA) LLC, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ |
| c/o | Deutsche Bank Securities Inc. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
Dear Sirs:
1. Introductory. RealPage, 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, $0.001 par value 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 the Securities being hereinafter referred to
as the “Firm Securities”). The Firm Securities to be sold by certain of the Selling Stockholders
will be acquired upon the exercise of options representing the right to acquire Securities
(“Selling Stockholder Options”) and by conversion of preferred stock of the Company into
Securities, in each case immediately prior to the First Closing Date. Certain of 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 (“Optional
Securities”) of the Securities, as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the “Offered Securities”.
2. Representations and Warranties of the Company and the Selling Stockholders. (i) The
Company represents and warrants to, and agrees with, the several Underwriters that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. The
Company has filed with the Commission a registration statement on Form S-1 (No.
333-166397) 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 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.
“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,
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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, as amended
(“▇▇▇▇▇▇▇▇-▇▇▇▇▇”), 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 (“Exchange Rules”) of the New York Stock Exchange and the
NASDAQ Stock Market.
“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.
(b) 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 and
the Rules and Regulations and did not and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (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 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. The preceding sentence
does not apply to statements in or omissions from any such document based upon 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 is that described as such in Section 8(c) hereof.
(c) 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
other subsidiary 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.
(d) 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 [ ], 2010 (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 made in reliance upon and in conformity with written
information furnished to the Company by any
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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.
(e) 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 first sentence of this Section 2(i)(e) does not apply
to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the information
described as such in Section 8(c) hereof.
(f) 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 corporate
power and authority to own its properties and conduct its business as described in the
General Disclosure Package and the Final Prospectus; 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 so qualify would not, individually or in the
aggregate, result in a material adverse effect on the business, properties, management,
financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries, taken as a whole (“Material Adverse Effect”).
(g) Subsidiaries. Each subsidiary of the Company has been duly incorporated and is
existing and in good standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own its properties and conduct its business as
described in the General Disclosure Package and the Final Prospectus; and each
subsidiary of 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 so
qualify would not, individually or in the aggregate, result in a Material Adverse
Effect; all of the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid and nonassessable;
and the capital stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(h) Offered Securities. 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 and the
Final Prospectus; 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, 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 that have not been waived, including in connection with the offering of
the Offered 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.
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(i) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection with this offering.
(j) 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 such rights to require the Company to include a specific
amount of securities of the Company in securities registered pursuant to a Registration
Statement have been waived and any person to whom the Company has granted Registration
Rights to require the Company to file a registration statement under the Act has agreed
not to exercise such rights until after the expiration of the Lock-Up Period as defined
in the Lock-Up Agreement (as defined below).
(k) Listing. The Offered Securities have been approved for listing on the The
NASDAQ Stock Market LLC (the “NASDAQ Stock Market”), subject to notice of issuance.
(l) 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
offering, issuance and sale of the Offered Securities, except such as have been obtained
or made and such as may be required under state securities laws.
(m) Title to Property. Except as disclosed in the General Disclosure Package, the
Company and its 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 that would affect the value thereof or interfere with the use
made or to be made thereof by them, except (i) as disclosed in the General Disclosure
Package or (ii) those that would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. The Company and its subsidiaries hold any
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.
(n) 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 any of the terms and provisions
of, or constitute a default or, except as disclosed in the General Disclosure Package, 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 its
subsidiaries pursuant to: (i) the charter or by-laws of the Company or any of its
subsidiaries, (ii) 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 (iii) 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, for the purposes of clause (iii), any such lien,
charge or encumbrance that would not, 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.
(o) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is (i) in violation of its respective charter or by-laws or (ii) in default
(or with the giving of
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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,
for the purposes of clause (ii), for such defaults that would not, individually or in
the aggregate, result in a Material Adverse Effect.
(p) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(q) Possession of Licenses and Permits. The Company and its subsidiaries possess,
and are in compliance with the terms of, all certificates, authorizations, franchises,
licenses and permits (“Licenses”) necessary or material to the conduct of the business
now conducted or proposed in the General Disclosure Package and the Final Prospectus to
be conducted by them and have not received any notice of proceedings relating to the
revocation or modification of any Licenses that, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(r) 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, individually or in the aggregate, have a Material Adverse Effect.
(s) Possession of Intellectual Property. To the Company’s knowledge, 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 and the Final
Prospectus to be conducted by them, and the expected expiration of any such Intellectual
Property Rights would not, individually or in the aggregate, have a Material Adverse
Effect. Except as disclosed in the General Disclosure Package (i) there are no rights
of third parties to any of the Intellectual Property Rights owned by the Company or its
subsidiaries (other than Intellectual Property Rights licensed or granted by the Company
in the ordinary course of its business); (ii) to the Company’s knowledge, there is no
material infringement, misappropriation breach, default or other violation, or the
occurrence of any event that with notice or the passage of time would constitute any of
the foregoing, by the Company, its subsidiaries or third parties of any of the
Intellectual Property Rights of the Company or its subsidiaries; (iii) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the Company’s or any subsidiary’s rights in or to, or the violation
of any of the terms of, any of their Intellectual Property Rights, and the Company is
unaware of any facts which would form a reasonable basis for any such claim; (iv) there
is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity, enforceability or scope of any such
Intellectual Property Rights, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others that the Company or
any subsidiary infringes, misappropriates or otherwise violates or conflicts with any
Intellectual Property Rights or other proprietary rights of others and the Company is
unaware of any other fact which would form a reasonable basis for any such claim; and
(vi) none of the Intellectual Property Rights used by the Company or its subsidiaries in
their businesses has been obtained or is being used by the Company or its subsidiaries
in violation of any contractual obligation binding on the Company, or any of its
subsidiaries in violation of the rights of any persons, except in each case covered by
clauses (i) — (vi) such as would not, if determined adversely to the Company or any of
its subsidiaries, individually or in the aggregate, have a Material Adverse Effect.
(t) 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
6
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.
(u) Employee Benefit Plans. (i) To the Company’s knowledge, no “prohibited
transaction” as defined under Section 406 of ERISA or Section 4975 of the Code (as
defined below) and not exempt under ERISA Section 408 and the regulations and published
interpretations thereunder has occurred with respect to any Employee Benefit Plan (as
defined below). At no time has the Company or any ERISA Affiliate (as defined below)
maintained, sponsored, participated in, contributed to or has or had any liability or
obligation in respect of any Employee Benefit Plan subject to Part 3 of Subtitle B of
Title I of ERISA, Title IV of ERISA, or Section 412 of the Code or any “multiemployer
plan” as defined in Section 3(37) of ERISA or any multiple employer plan for which the
Company or any ERISA Affiliate has incurred or could incur liability under Section 4063
or 4064 of ERISA. No Employee Benefit Plan provides or promises, or at any time
provided or promised, retiree health, life insurance, or other retiree welfare benefits
except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended, or similar state law. Each Employee Benefit Plan is and has been operated
in material compliance with its terms and all applicable laws, including but not limited
to ERISA and the Code and, to the knowledge of the Company, no event has occurred
(including a “reportable event” as such term is defined in Section 4043 of ERISA) and no
condition exists that would subject the Company or any ERISA Affiliate to any material
tax, fine, lien, penalty or liability imposed by ERISA, the Code or other applicable
law. Each Employee Benefit Plan intended to be qualified under Code Section 401(a) is
so qualified and has a favorable determination or opinion letter from the IRS upon which
it can rely, and any such determination or opinion letter remains in effect and has not
been revoked; to the knowledge of the Company, nothing has occurred since the date of
any such determination or opinion letter that is reasonably likely to adversely affect
such qualification. (ii) The Company does not have any obligations under any collective
bargaining agreement with any union and, to the Company’s knowledge, no organization
efforts are underway with respect to Company employees. As used in this Agreement,
“Code” means the Internal Revenue Code of 1986, as amended; “Employee Benefit Plan”
means any “employee benefit plan” within the meaning of Section 3(3) of ERISA,
including, without limitation, all stock purchase, stock option, stock-based severance,
employment, change-in-control, medical, disability, fringe benefit, bonus, incentive,
deferred compensation, employee loan and all other employee benefit plans, agreements,
programs, policies or other arrangements, whether or not subject to ERISA, under which
(A) any current or former employee, director or independent contractor of the Company or
its subsidiaries has any present or future right to benefits and which are contributed
to, sponsored by or maintained by the Company or any of its respective subsidiaries or
(B) the Company or any of its subsidiaries has had or has any present or future
obligation or liability; “ERISA” means the Employee Retirement Income Security Act of
1974, as amended; and “ERISA Affiliate” means any member of the company’s controlled
group as defined in Code Section 414(b), (c), (m) or (o).
(v) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Management’s Discussion and Analysis of Financial
Condition and Results of Operations — Overview,” “Management’s Discussion and Analysis
of Financial Condition and Results of Operations — Liquidity and Capital Resources,”
“Business — Legal Proceedings,” “Business — Intellectual Property,” “Certain
Relationships and Related Party Transactions,” “Description of Capital Stock,” “Shares
Eligible for Future Sale,” “Certain United States Federal Tax Considerations” and
“Certain Relationships and Related Party Transaction” insofar as such statements
summarize legal matters, agreements, documents or proceedings discussed therein, are
accurate, complete and fair summaries of such legal matters, agreements, documents or
proceedings and present the information required to be shown.
(w) 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
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stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Offered Securities.
(x) Statistical and Market-Related Data. Any third-party statistical and
market-related data included in a Registration Statement, a Statutory Prospectus, the
General Disclosure Package or the Final Prospectus are based on or derived from sources
that the Company believes to be reliable and accurate.
(y) Independent Public Accountants. Ernst & Young LLP, who have certified certain
financial statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the Commission
thereunder. Except as preapproved in accordance with the requirements set forth in
Section 10A of the Exchange Act, Ernst & Young LLP, have not been engaged by the Company
to perform any “prohibited activities” (as defined in such Section 10A) of the Exchange
Act.
(z) Internal Controls and Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Except as set
forth in the General Disclosure Package, the Company, its subsidiaries and the Company’s
Board of Directors (the “Board”) are in compliance with applicable provisions of
▇▇▇▇▇▇▇▇-▇▇▇▇▇ and all applicable Exchange Rules. 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 applicable 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. General 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 Board
in accordance with applicable Exchange Rules. The Company has not publicly disclosed or
reported to the Audit Committee or the Board, and within the next 135 days
the Company does not reasonably expect to publicly disclose or report to the Audit
Committee or the Board, a significant deficiency, a material weakness, a material 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 which, if determined
adversely, would have, individually or in the aggregate, a Material Adverse Effect.
(aa) Absence of Accounting Issues. A member of the Audit Committee has confirmed
to the Chief Executive Officer, Chief Financial Officer or General Counsel that, except
as set forth in the General Disclosure Package, the Audit Committee is not reviewing or
investigating, and neither the Company’s independent auditors nor its internal auditors
have recommended that the Audit Committee 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.
(bb) 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 its subsidiaries or any of their respective properties or any Employee
Benefit Plan that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its obligations
under 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
8
governmental agency or body, domestic or foreign) are, to the Company’s knowledge,
threatened or contemplated.
(cc) Financial Statements. The financial statements included in each Registration
Statement, the General Disclosure Package and the Final Prospectus 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
the generally accepted accounting principles in the United States applied on a
consistent basis; the schedules, if any, included in each Registration Statement present
fairly the information required to be stated therein. No other financial statements or
schedules of the Company or any other entity are required to be included in the
Registration Statement, the General Disclosure Package or the Final Prospectus pursuant
to any requirement of the Securities Act or any rules and regulations thereunder,
including Rules 3-05 and Article 11 of Regulation S-X.
(dd) Off-Balance Sheet Arrangements. Except as otherwise disclosed in the General
Disclosure Package, there are no off-balance sheet arrangements (as defined in
Regulation S-K Item 303(a)(4)(ii)) that may have a material current or future effect on
the Company’s financial condition, changes in financial condition, results of
operations, liquidity, capital expenditures or capital resources.
(ee) 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, properties or prospects 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 its subsidiaries.
(ff) 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 and the Final Prospectus, will not be an
“investment company” as defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(gg) 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 prudent and customary for the businesses in which they are engaged; all
policies of insurance and fidelity or surety bonds 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; neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and 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 is not
materially greater than the current cost, except as set forth in or contemplated in the
General Disclosure Package; and the Company will obtain director’s and officer’s
insurance in such amounts as is customary for an initial public offering of a company
with a controlling stockholder.
(hh) Material Contracts. There is no franchise, lease, contract, agreement or
other document required by the Securities Act or by the Rules and Regulations to be
described in the General Disclosure Package or the Final Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed therein as
required. Other than as described in the General Disclosure Package, no such franchise,
lease, contract, agreement or other document has been suspended or
9
terminated for convenience or default by the Company or any of the other parties
thereto, and the Company has not received notice of any such pending or threatened
suspension or termination, except for such pending or threatened suspensions or
terminations that would not reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect.
(ii) FINRA Affiliations. There are no affiliations with the Financial Industry
Regulatory Authority, Inc. among the Company’s officers, directors or, to the knowledge
of the Company, any five percent or greater stockholder of the Company or any beneficial
owner of the Company’s unregistered equity securities that were acquired during the
180-day period immediately preceding the initial filing date of the Registration
Statement, except as set forth in the General Disclosure Package or otherwise disclosed
in writing to the Underwriters.
(jj) Related Party Transactions. There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or guarantees
of indebtedness by the Company to or for the benefit of any of the officers or directors
of the Company or any of their respective family members. The Company has not directly
or indirectly, including through its subsidiaries, extended or maintained credit,
arranged for the extension of credit, or renewed an extension of credit, in the form of
a personal loan to or for any director or executive officer of the Company, other than
any extensions of credit that ceased to be outstanding prior to the initial filing of
the Company’s registration statement on Form S-1 (file no. 333-166397). No transaction
has occurred between or among the Company and any of its officers or directors,
stockholders, customers, suppliers or any affiliate or affiliates of the foregoing that
is required to be described or filed as an exhibit to in the Registration Statement, the
General Disclosure Package or the Final Prospectus and is not so described.
(kk) Recent Sale of Securities. Except as described in the Registration Statement
and the General Disclosure Package, the Company has not sold, issued or distributed any shares of Common Stock during the six-month period preceding the date hereof, including
any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act,
other than shares issued pursuant to Employee Benefit Plans, qualified stock option
plans or other employee compensation plans or pursuant to outstanding options, rights or
warrants.
(ll) Antifraud Compliance. Each of the Company, its subsidiaries, its affiliates
and any of their respective officers, directors, supervisors, managers, agents, or
employees, has not violated, will not violate as a result of its participation in the
offering, and has instituted and maintains policies and procedures designed to ensure
continued compliance with each of the following laws: (i) anti-bribery laws, including
but not limited to, any applicable law, rule, or regulation of any locality, including
but not limited to any law, rule, or regulation promulgated to implement the OECD
Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act
of 1977 or any other law, rule or regulation of similar purpose and scope, (ii)
anti-money laundering laws, including but not limited to, applicable federal, state,
international, foreign or other laws, regulations or government guidance regarding
anti-money laundering, including, without limitation, Title 18 U.S. Code section 1956
and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering
principals or procedures by an intergovernmental group or organization, such as the
Financial Action Task Force on Money Laundering, of which the United States is a member
and with which designation the United States representative to the group or organization
continues to concur, all as amended, and any Executive order, directive, or regulation
pursuant to the authority of any of the foregoing, or any orders or licenses issued
thereunder or (iii) 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.
10
(mm) Taxes. 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, individually
or in the aggregate, 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.
(ii) Each Selling Stockholder severally represents and warrants to, and agrees with, the
several Underwriters that:
(a) Title to Securities. Upon conversion of the preferred stock of the Company
convertible into Securities and the exercise of Selling Stockholder Options (in either
case if applicable), 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, free of any “adverse claim”
(within the meaning of Section 8-105 of the Uniform Commercial Code as in effect in the
State of New York (the “New York UCC”) and full right, power and authority to
enter into this Agreement and the Custody Agreement (“Custody Agreement”) signed by such
Selling Stockholder and Computershare Inc., as Custodian (“Custodian”), relating to the
deposit of the Offered Securities to be sold by such Selling Stockholder and the Power
of Attorney (“Power of Attorney”) appointing the attorneys-in-fact (defined as ▇▇▇▇▇▇▇
▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the “Attorneys-in-Fact”) as such Selling Stockholder’s
attorneys-in-fact, 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 to be sold by such Selling
Stockholder pursuant to this Agreement, delivery of such Offered Securities, as directed
by the Underwriters, to the Depository Trust Company (“DTC”) or its agent, registration
of such Shares in the name of Cede & Co. (“Cede”) or such other nominee as may be
designated by DTC and the crediting of such Offered Securities on the books of DTC to
securities accounts of the Underwriters (assuming that no such Underwriter has notice of
any “adverse claim” (within the meaning of Section 8-105 of the New York UCC) to such
Shares), (A) under Section 8-501 of the New York UCC, the Underwriters will acquire a
valid and unencumbered security entitlement with respect to such Offered Securities and
(B) no action based on an “adverse claim,” within the meaning of Section 8-102 of the
New York UCC, to such Offered Securities may be asserted against the Underwriters with
respect to such security entitlement.
(b) 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 execution,
delivery and performance of this Agreement, the Custody Agreement or the Power of
Attorney by such Selling Stockholder and the consummation of the transactions
contemplated therein or this Agreement in connection with the offering and sale of the
Offered Securities sold by such Selling Stockholder, except such as have been obtained
and made under the Act (or, with respect to any Final Prospectus to be filed under the
Act, will be effected in accordance herewith), such as may be required under state
securities laws and such as may be required under FINRA Rule 5110.
(c) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of the Custody Agreement, the Power of Attorney and this
Agreement and the consummation of the transactions contemplated therein and herein will
not result in a breach by such Selling Stockholder or violation by such Selling
Stockholder of any of the terms and provisions of, or constitute a default by such
Selling Stockholder under, or result in the imposition of any lien, charge or
encumbrance upon any property or assets of such Selling Stockholder pursuant to, (i) 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 their properties, (ii) any
agreement or instrument to which any Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the properties of such Selling
Stockholder is subject, or (iii) the charter or by-laws of any Selling Stockholder that
is a corporation or the constituent documents of any Selling Stockholder that is not a
11
natural person or a corporation, except with respect to clauses (i) and (ii) for
such breaches, violations, defaults, liens, charges and encumbrances that would not,
individually or in the aggregate, impair in any material respects such Selling
Stockholders’ ability to fulfill its obligations under this Agreement; and provided that
no warranty is made in clause (ii) with respect to the antifraud provisions of federal
and state securities laws.
(d) Power of Attorney and Custody Agreement. The Power of Attorney and related
Custody Agreement with respect to 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.
(e) 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)
will not include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not
misleading, and (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. The preceding sentence does not apply to statements in or omissions from any
such document based upon 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 is that described as such in Section 8(c) hereof.
Notwithstanding anything to the contrary, with respect to each Selling Stockholder, the
first sentence of this subsection (e) applies only to statements in or omissions from
any Registration Statement, Statutory Prospectus or the Final Prospectus that are made
in reliance upon and in conformity with information furnished to the Company by such
Selling Stockholder expressly for use therein (“Selling Stockholder Information”), it
being understood and agreed that the only Selling Stockholder Information consists
solely of the information relating to such Selling Stockholder under the caption
“Principal and Selling Stockholders” in any Statutory Prospectus or the Final
Prospectus.
(f) General Disclosure Package. As of the Applicable Time, neither (i) 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 (x) with respect to any Selling Stockholder
applies only to the extent that any statements in or omissions from the General
Disclosure Package or any Limited Use Issuer Free Writing Prospectus are based on
Selling Stockholder Information and (y) does not apply to statements in or omissions
from any such document based upon 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 is that described as such in
Section 8(c) hereof.
(g) Issuer Free Writing Prospectuses. All Selling Stockholder Information contained
in any 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 such Selling Stockholder notified or notifies the Company, Credit
Suisse Securities (USA) LLC 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 Selling Stockholder Information, if republished
immediately following such event or development, conflicted or would conflict with the
information then contained in the Registration Statement or as a result of which such
Selling Stockholder Information would include an untrue
12
statement
of a material fact if 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, such Selling Stockholder has promptly
notified or will promptly notify the Company and Credit Suisse Securities (USA) LLC and
will provide the Company with all necessary information so as to correct such untrue
statement or omission.
(h) 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 its subsidiaries that is not set forth the
General Disclosure Package.
(i) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by, or on behalf of, such Selling Stockholder.
(j) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling Stockholder or any
Underwriter for a brokerage commission, finder’s fee or other like payment in connection
with this offering.
(k) 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 in violation of applicable laws.
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 agrees, 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 other than any such Offered Securities to be issued upon exercise of Selling
Stockholder Options, or irrevocable exercise notices in the event of Selling Stockholders who are
selling Offered Securities issued upon the exercise of the Selling Stockholder Options, have been
placed in custody, for delivery under this Agreement, under Custody Agreements made with the
Custodian. Each Selling Stockholder agrees that the shares represented by the certificates or
irrevocable exercise notices 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 or irrevocable exercise notices 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 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 Firm
Securities and the Custodian in the case of [ ] shares of Firm Securities, at the office
13
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇ at [ ]
A.M., New York time, on [ ], 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 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 listed on Schedule B under the heading “Option Selling Stockholders” (such Selling
Stockholders, “Option 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
Option Selling Stockholders agree, severally and not jointly, to sell to the Underwriters the
respective number of shares of Optional Securities obtained by multiplying the number of Optional
Securities specified in such notice by a fraction, the numerator of which is the number of shares
set forth opposite the names of such Option Selling Stockholders in Schedule B hereto under the
caption “Number of Optional Securities to be Sold” and the denominator of which is the total number
of Optional Securities (subject to adjustment by the Representative, in order to avoid fractions).
Such Optional Securities shall be purchased from each Selling Stockholder for the account of each
Underwriter in the same proportion as the number of shares of Firm Securities set forth opposite
such Underwriter’s name bears to the total number of shares of Firm Securities (subject to
adjustment by the Representatives to in order to avoid fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection with the sale of
the shares of 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 Option 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 later than five full business days after written
notice of election to purchase Optional Securities is given. 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 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 Custodian, at the above office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP. The certificates for 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
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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, 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
14
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.
(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; 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 reasonable
best 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 securityholders an
earnings statement covering a period of at least 12 months beginning after the Effective
Time 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 end of 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 (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 may reasonably
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.
15
(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 continue such qualifications in effect so long as required for the
distribution; except that in no event shall the Company be obligated in connection
therewith to qualify as a foreign corporation or to execute a general consent to service
of process in any such jurisdiction.
(g) Reporting Requirements. During the period of three years hereafter, 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 and each Selling Stockholder agree 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, as the case may be,
under this Agreement, including but not limited to (i) 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, (ii) costs and expenses related to the review by the
Financial Industry Regulation Authority (“FINRA”) of the Offered Securities (including
filing fees and the fees and expenses of counsel for the Underwriters relating to such
review), (iii) fees, disbursements and expenses of Company’s counsel and one counsel to
the Selling Stockholders, (iv) costs and expenses incurred by the Company 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 incurred in
connection therewith (provided, however, that the Company and the Underwriters each
shall be responsible for 50% of the costs of any aircraft chartered in order to
transport representatives of the Company and the Underwriters to meetings with
prospective purchasers of the Offered Securities), (v) fees and expenses incident to
listing the Offered Securities on the NASDAQ Stock Market and other national and foreign
exchanges, (vi) fees and expenses in connection with the registration of the Offered
Securities under the Exchange Act and (vii) 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. It is understood, however, that, except as provided in this
Section 5(h), the Underwriters will pay all of their own costs and expenses, including
all travel, lodging and other expenses of the Underwriters or any of their employees
incurred by them in connection with any road show. It is further understood that,
except as provided in this Section 5(h), the Selling Stockholders will pay all of their
own costs and expenses, including any transfer or other taxes payable on the sale of
their Securities, except as provided in any separate agreement relating to the
allocation of payment of expenses between the Company, on the one hand, and a Selling
Stockholder, on the other hand.
(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 the Final Prospectus 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.
16
(i) 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 or
any securities convertible into or exchangeable or exercisable for any of its Securities
(“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 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, (v) permit a net exercise
or “cashless” exercise of any options issued pursuant to a plan; or (vi) file with the
Commission a registration statement under the Act relating to Lock-Up Securities (except for
a registration statement on Form S-8 to register shares issuable upon exercise of options
granted pursuant to the terms of a plan in effect on the date hereof, it being understood
that the Company shall be limited to filing only one Form S-8 during the Lock-Up Period and
any Securities registered pursuant to such Form S-8 shall remain subject to the lock-up
agreements previously executed and delivered pursuant to this agreement pursuant to the
terms therein) without the prior written consent of the Representatives, except, in each
case, (A) the Securities to be sold hereunder; (B) grants of employee stock options pursuant
to the terms of a plan in effect on the date hereof and disclosed in the General Disclosure
Package and the Final Prospectus, and authorized for issuance as of the date hereof; (C) and
issuances of Lock-Up Securities pursuant to the exercise of such options or the exercise of
any other employee stock options outstanding on the date hereof provided such exercises are
not on a “net exercise” on “cashless” basis as described in clause (v) above; (D) the
issuance of Lock-Up Securities in connection with the acquisition by the Company or any of
its subsidiaries of the securities, businesses, property or other assets of another person
or entity or pursuant to any employee benefit plan assumed by the Company in connection with
any such acquisition; or (E) the issuance of Lock-Up Securities in connection with joint
ventures, commercial relationships or other strategic transactions; provided that, in the
case of clauses (D) and (E), (i) the aggregate number of shares issued in such acquisitions
and transactions does not exceed 5% of the Securities outstanding immediately following
consummation of this offering and (ii) any recipients of such shares execute and deliver to
the Representatives a Lock-Up Agreement (as defined below). 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 material 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.
(ii) During the Lock-Up Period, the Company will not, directly or indirectly, waive or
release any person or entity from the terms of any contractual restriction which prohibits
such person or entity from (each, an “Embedded Lock-Up”): (i) offering, selling, issuing,
contracting to sell, pledging or otherwise disposing of Lock-Up Securities, (ii) offering,
selling, issuing, contracting to sell, contracting to purchase or granting any option, right
or warrant to purchase Lock-Up Securities, (iii) entering into any swap, hedge or any other
agreement that transfers, in whole or in part, the economic consequences of ownership of
Lock-Up Securities and (iv) establishing or increasing a put equivalent position or
liquidating or decreasing a call equivalent position in Lock-Up Securities within the
meaning of Section 16 of the Exchange Act. The Company further agrees to take all actions
reasonably necessary to (a) activate all Embedded Lock-Ups, (b) notify holders of Lock-Up
Securities subject to Embedded Lock-Ups that such Embedded Lock-Ups have been activated, (c)
enforce such Embedded Lock-Ups and (d) notify the Representatives if the Company becomes
aware that any person or entity has breached or intends to breach any such Embedded Lock-Up.
(l) Internal Controls. From and after the Closing Date, the Company shall have in
place and maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii)
17
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP 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.
(m) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company will comply with all effective applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(n) Investment Company. The Company shall not invest or otherwise use the proceeds
earned by the Company from its sale of the Offered Securities, and the Company and its
subsidiaries will conduct its affairs, in such a manner so as to ensure that neither the
Company nor any of its subsidiaries will be required to register as an “investment
company” or an entity “controlled” by an investment company within the meaning of the
Investment Company Act.
6. 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 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 it 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 (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 Ernst & Young LLP
confirming that they are a registered public accounting firm and independent public
accountants within the meaning of the Securities Laws and substantially in the form of
Exhibit A hereto (except that, in any letter dated on a Closing Date, the
specified date referred to in Exhibit A hereto 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 the Company, any Selling
Stockholder 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, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties
18
or prospects 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 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
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) or any suspension of trading of any securities
of the Company on any exchange or in the over-the-counter market; (vi) any banking
moratorium declared by any U.S. 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional
Corporation, counsel for the Company, in the form attached hereto as Exhibit B.
(e) Opinion of Counsel for Selling Stockholders. The Representatives shall have
received an opinion, dated such Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Professional Corporation, counsel for the Selling Stockholders, in the form attached
hereto as Exhibit C.
(f) Opinion of Counsel for Underwriters. The Representatives shall have received
from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 each of such officers, in his
capacity as an officer of the Company, 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, nor any development or event involving a
prospective 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 and the Final
Prospectus or as described in such certificate.
(h) Selling Shareholders’ Certificates. The Representatives shall have received a
certificate, dated such Closing Date, of an attorney-in-fact for each Selling
Shareholder in which such attorney-in-fact, to the best of its knowledge after
reasonable investigation, shall state that: the representations and
19
warranties of such Selling Shareholder in this Agreement are true and correct; and
the Selling Shareholders have complied with all agreements and satisfied all conditions
on their part to be performed or satisfied hereunder at or prior to such Closing Date.
(i) Lock-Up Agreements. On or prior to the date hereof, the Representatives shall
have received lock-up letters in a form satisfactory to the Representatives (“Lock-Up
Agreement”).
(j) Tax Forms. The Custodian will deliver 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.
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 in their sole discretion 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.
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 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.
(b) Indemnification of Underwriters by Selling Stockholders. The Selling
Stockholders, 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 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 the above as such expenses are incurred;
20
provided, however, that a Selling Stockholder shall be subject to liability only to
the extent that the untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents is made in reliance upon and in conformity
with written information provided by such Selling Stockholder specifically for use
therein, it being understood and agreed that the only such information furnished by any
Selling Stockholder consists of the following information in the Final Prospectus
furnished on behalf of each Selling Stockholder: the information relating to such
Selling Stockholder under the caption “Principal and Selling Stockholders” in any
Statutory Prospectus or the Final Prospectus; provided further that the liability of
each Selling Stockholder shall be limited to an amount equal to the aggregate gross
proceeds after underwriting discounts and commissions, but before expenses, to such
Selling Stockholder from the sale of the Offered Securities sold by such indemnifying
Selling Stockholder.
(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 (i) the following information in the Final Prospectus furnished on behalf of
each Underwriter: the concession and reallowance figures appearing in the fourth
paragraph under the caption “Underwriting” and the discussions of stabilizing,
over-allotment and syndicate covering transactions and penalty bids under the caption
“Underwriting”.
(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.
The indemnified party shall have the right to employ separate counsel in any such
21
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the indemnified party unless (i) the employment of
such counsel shall have been specifically authorized in writing by the indemnifying
party, (ii) the indemnifying party shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party and the indemnified party
shall have been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the right to
assume the defense of such action on behalf of the indemnified party or such controlling
person). No indemnifying party shall, without the prior written consent of the
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), 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. 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 Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (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 subsection (e). Notwithstanding the
provisions of this subsection (e), no Selling Stockholder shall be required to
contribute (i) unless such Selling Stockholder would have had indemnification
obligations pursuant to Section 8(b) and (ii) any amount in excess of the amount by
which (I) the aggregate gross proceeds after underwriting discounts and commissions, but
before expenses, received by such Selling Stockholder from the sale of the Offered
Securities sold by such Selling Stockholder pursuant to this Agreement exceeds (II) the
22
amount of any damages which such Selling Stockholder has otherwise been required to
pay by reason of such untrue alleged untrue statement or omission or alleged omission.
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, Credit Suisse
Securities (USA) LLC 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 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 Credit Suisse Securities (USA) LLC, 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. If the purchase of the Offered Securities by the
Underwriters is not consummated solely because of any failure, refusal or inability of any of the
Selling Stockholders to perform any agreement herein or to comply with any provision hereof, such
Selling Stockholder will reimburse the Company for the out-of-pocket expenses of the Underwriters
(including fees and disbursements of counsel) that the Company reimburses the Underwriters pursuant
to the immediately preceding sentence. 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
Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
LCD-IBD, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it
at RealPage, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Chief Legal Officer, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional
Corporation, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ IV, Fifth Floor, Austin, TX 78746,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ or, if sent to the Selling Stockholders or any of them, will be mailed,
delivered or telegraphed and confirmed to the Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Legal Officer, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ IV, Fifth
Floor, Austin, TX 78746, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇; provided, however, that any notice to an
Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
23
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 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 the Attorneys-in-Fact, jointly or individually 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.
15. Absence of Fiduciary Relationship. The Company and the Selling Stockholders 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.
[Remainder of page intentionally left blank]
24
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, | ||||||||
| RealPage, Inc. | ||||||||
| By | ||||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Executive Officer | ||||||||
| Selling Stockholders | ||||||||
| By | ||||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Attorney-in-Fact for and on behalf of the Selling Stockholders |
||||||||
| By | ||||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Attorney-in-Fact for and on behalf of the Selling Stockholders |
||||||||
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
and accepted as of the date first above written.
| Credit Suisse Securities (USA) LLC | ||||
| Deutsche Bank Securities Inc. | ||||
| Acting on behalf of themselves and as the Representatives of the several Underwriters. |
||||
| By: | Credit Suisse Securities (USA) LLC | |||
| By: | ||||
| Name: Title: |
||||
| By: | Deutsche Bank Securities Inc. | |||
| By: | ||||
| Name: Title: |
||||
[Signature Page to Underwriting Agreement]
SCHEDULE A
| Number of | ||
| Firm Securities | ||
| Underwriter | to be Purchased | |
Credit Suisse Securities (USA) LLC |
||
Deutsche Bank Securities Inc. |
||
JMP Securities LLC |
||
Pacific Crest Securities LLC |
||
RBC Capital Markets Corporation |
||
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. |
||
Total
|
Schedule A
SCHEDULE B
| Number of | Number of Optional | |||||||
| Firm Securities | Securities to be | |||||||
| Selling Stockholders | to be Sold | Sold | ||||||
Entities affiliated with Camden Partners Strategic Fund III, L.P. |
550,000 | |||||||
Camden Partners Strategic Fund III, L.P. |
||||||||
Camden Partners Strategic Fund III-A, L.P. |
||||||||
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and entities affiliated with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ |
1,647,500 | |||||||
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ |
||||||||
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 2010 QTIP Trust |
||||||||
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 1996 Family LPA |
||||||||
Seren Capital Ltd. |
||||||||
Seren Catalyst, ▇.▇. |
||||||||
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. |
50,000 | |||||||
Bible, ▇▇▇▇▇▇▇ ▇. |
10,000 | |||||||
▇▇▇▇▇▇, ▇▇▇▇▇ |
15,000 | |||||||
▇▇▇▇, ▇▇▇▇ |
20,000 | |||||||
▇▇▇▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. |
15,000 | |||||||
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. |
8,000 | |||||||
▇▇▇▇▇▇, ▇▇▇▇▇▇ |
10,000 | |||||||
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ |
7,500 | |||||||
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. |
13,000 | |||||||
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. |
10,000 | |||||||
▇▇▇▇▇▇, ▇▇▇▇▇▇ |
13,000 | |||||||
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ |
50,000 | |||||||
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇▇ |
20,000 | |||||||
Mobileneer,
Ltd. |
20,000 | |||||||
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ |
10,000 | |||||||
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. |
13,000 | |||||||
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. |
18,000 | |||||||
Option Selling Stockholders |
||||||||
Entities affiliated with Advance Capital Partners, L.P. |
1,000,000 | 450,131 | ||||||
Advance Capital Partners, L.P. |
||||||||
Advance Capital Offshore Partners, L.P. |
||||||||
Entities affiliated with Apax Excelsior VI, L.P. |
4,000,000 | 1,574,869 | ||||||
Apax Excelsior VI, L.P. |
||||||||
Apax Excelsior VI-A C.V. |
||||||||
Apax Excelsior VI-B C.V. |
||||||||
Patricof Private Investment Club III, L.P. |
||||||||
Total |
7,500,000 | 2,025,000 | ||||||
Schedule B
SCHEDULE C
| 1. | General Use Free Writing Prospectuses (included in the General Disclosure Package) | |
| “General Use Issuer Free Writing Prospectus” includes each of the following documents: | ||
| [•] | ||
| 2. | Other Information Included in the General Disclosure Package | |
| The following information is also included in the General Disclosure Package: | ||
| [•] |
Schedule C
EXHIBIT A
[Form of Comfort Letter]
A-1
EXHIBIT B
[Form of Opinion of Counsel for the Company]
[TO BE PROVIDED SEPARATELY]
[TO BE PROVIDED SEPARATELY]
B-1
EXHIBIT C
[Form of Opinion of Counsel for Selling Stockholders]
[TO BE PROVIDED SEPARATELY]
[TO BE PROVIDED SEPARATELY]
C-1