4,600,000 Shares AMERICAN SUPERCONDUCTOR CORPORATION COMMON STOCK ($.01 par value) UNDERWRITING AGREEMENT
Exhibit 1.1
4,600,000
Shares
AMERICAN SUPERCONDUCTOR CORPORATION
COMMON STOCK ($.01 par value)
November 10, 2010
November 10, 2010
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Deutsche Bank Securities Inc.
▇▇▇▇▇▇▇▇▇ & Company, Inc.
Pacific Crest Securities LLC
Deutsche Bank Securities Inc.
▇▇▇▇▇▇▇▇▇ & Company, Inc.
Pacific Crest Securities LLC
| c/o | Morgan ▇▇▇▇▇▇▇ & Co. Incorporated | |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| and | ||
| Deutsche Bank Securities Inc. | ||
| ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
Ladies and Gentlemen:
American Superconductor Corporation, a Delaware corporation (the “Company”), proposes to issue
and sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you
are acting as managers (the “Managers”), the number of shares of its common stock, $.01 par value
per share, set forth in Schedule I hereto (the “Firm Shares”).
The Company also proposes to issue and sell to the several Underwriters not more than the
number of additional shares of its common stock, $.01 par value per share, set forth in Schedule I
hereto (the “Additional Shares”), if and to the extent that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated shall
have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of
common stock granted to the Underwriters in Section 2 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the “Shares.” The shares of the common stock,
$.01 par value per share, of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the “Common Stock.” If the firm or firms listed
in Schedule II hereto include only the Managers listed in Schedule I hereto, then the terms
“Underwriters” and “Managers” as used herein shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, (the file number of which is set forth in Schedule
I hereto) on Form S-3, relating to the securities (the “Shelf Securities”), including the Shares,
to be issued from time to time by the Company. The registration statement as amended to the date
of this
Agreement, including the information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A or Rule 430 B under the Securities Act of 1933,
as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement”, and
the related prospectus covering the Shelf Securities dated November 8, 2010 in the form first used
to confirm sales of the Shares (or in the form first made available to the Underwriters by the
Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the
prospectus supplement specifically relating to the Shares in the form first used to confirm sales
of the Shares (or in the form first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as
the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the
Prospectus. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in
Rule 405 under the Securities Act, “Time of Sale Prospectus” means the preliminary
prospectus identified in Schedule I hereto and the information
set forth in the Term Sheet attached as Exhibit E hereto, and
“broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5)
under the Securities Act that has been made available without restriction to any person. As used
herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary prospectus,” “Time of
Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference
therein. The terms “supplement,” “amendment,” and “amend” as used herein with respect to the
Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary
prospectus or free writing prospectus shall include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties of the Company. The Company represents and warrants to and
agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by the Commission. The Company is a
well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement and the Company has not
received notice that the Commission objects to the use of the Registration Statement as an
automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission
2
thereunder, (ii) each part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (iii) the Registration Statement as of
the date hereof does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, the Registration Statement and the Prospectus comply and, as amended or supplemented,
if applicable, will comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and
at the time of each sale of the Shares in connection with the offering when the Prospectus is not
yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the
Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not,
contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, (v) each broadly available road show, if any, when considered together with the Time of
Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in the Registration Statement, the
Time of Sale Prospectus, any broadly available road show or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Managers expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule I hereto forming part of the Time of Sale Prospectus, and electronic road
shows, if any, each furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer to, any free writing
prospectus.
3
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters in all material
respects to the description thereof contained in each of the Time of Sale Prospectus and the
Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the Shares to be sold by
the Company have been duly authorized and are validly issued, fully paid and non-assessable.
(i) The Shares to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar
rights.
(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii)
the certificate of incorporation or by-laws of the Company, (iii) any agreement or other instrument
binding upon the Company or any of its subsidiaries, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary, except
in the case of clauses (iii) and (iv), for any such contravention that would not affect the
validity of the Shares or otherwise have a
4
material adverse effect on the Company and its subsidiaries, taken as a whole, and no consent,
approval, authorization or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this Agreement, except such as
have been obtained under the Securities Act or as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus and proceedings that
would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or
on the power or ability of the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required
to be described in the Registration Statement or the Prospectus and are not so described; and there
are no statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.
(o) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to
5
receive required permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) 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
Securities Act with respect to any securities of the Company or to require the Company to include
such securities with the Shares registered pursuant to the Registration Statement.
(r) Neither the Company nor any of its subsidiaries or affiliates (other than any affiliate
who is an affiliate as a result of stock ownership in the Company), nor any director, officer, or
employee thereof, nor, to the Company’s knowledge, any agent or representative of the Company or of
any of its subsidiaries or affiliates, has taken or will take any action in furtherance of an
offer, payment, promise to pay, or authorization or approval of the payment or giving of money,
property, gifts or anything else of value, directly or indirectly, to any “government official”
(including any officer or employee of a government or government-owned or controlled entity or of a
public international organization, or any person acting in an official capacity for or on behalf of
any of the foregoing, or any political party or party official or candidate for political office)
to influence official action or secure an improper advantage; and the Company and its subsidiaries
and affiliates (other than any affiliate who is an affiliate as a result of stock ownership in the
Company) have conducted their businesses in compliance with applicable anti-corruption laws and
have instituted and maintain policies and procedures designed to promote and achieve compliance
with such laws and with the representation and warranty contained herein.
(s) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting
requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions
where the Company and its subsidiaries conduct business, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency
6
(collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(t) (i) The Company represents that neither the Company nor any of its subsidiaries, nor any
director, officer, or employee thereof, nor, to the Company’s knowledge, any agent, affiliate
(other than any affiliate who is an affiliate as a result of stock ownership in the Company) or
representative of the Company or any of its subsidiaries, is an individual or entity (“Person”)
that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United
Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant sanctions authority (collectively,
“Sanctions”), nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Company represents and covenants that it will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
(iii) The Company represents and covenants that, for the past five years, it and its
subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage
in, any dealings or transactions with any Person, or in any country or territory, that at the time
of the dealing or transaction is or was the subject of Sanctions.
(u) The Company and each of its subsidiaries have filed all federal, state, local and foreign
tax returns required to be filed through the date of this Agreement or have requested extensions
thereof (except where the failure to file would not, individually or in the aggregate, have a
material adverse effect on the
7
Company and its subsidiaries, taken as a whole) and have paid all taxes required to be paid
thereon (except for cases in which the failure to file or pay would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or, except as currently being
contested in good faith and for which reserves required by U.S. GAAP have been created in the
financial statements of the Company), and no tax deficiency has been determined adversely to the
Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries
have any notice of any tax deficiency which could reasonably be expected to be determined adversely
to the Company or its subsidiaries and which could reasonably be expected to have) a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(v) The Company or a subsidiary has good and marketable title to all properties and assets
that are material to the business of the Company and its subsidiaries, taken as a whole, and are
described in the Prospectus as owned by them, respectively, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in the Time of Sale Prospectus and
Prospectus or are not material to the business of the Company and its subsidiaries, taken as a
whole. The Company or a subsidiary has valid, subsisting and enforceable leases for the properties
described in the Prospectus as leased by them, with such exceptions as are not material. The
Company and its Subsidiaries owns or leases all such properties as are necessary to the operations
of the Company or its Subsidiaries as contemplated by the Prospectus, except where the failure to
so own or lease would not result in a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(w) Except as disclosed in or specifically contemplated by the Time of Sale Prospectus, (i)
each of the Company and its subsidiaries (A) owns or has adequate rights to use all trademarks,
service marks, trade names, inventions, designs, trade secrets, know-how, patent rights, copyrights
and other intellectual property (collectively, “Intellectual Property”) and (B) has such other
material licenses, approvals and governmental authorizations, in each case, sufficient to conduct
its business as now conducted and as now proposed to be conducted, (ii) to the knowledge of the
Company, none of the material patent rights owned or licensed by the Company is unenforceable or
invalid; the Company or such subsidiary, as the case may be, has duly and properly filed or caused
to be filed with the United States Patent and Trademark Office (the “PTO”) and applicable foreign
and international patent authorities all patent applications described or referred to in the
Registration Statement and Prospectus as having been filed by the Company or such subsidiary and
believes that the Company or such subsidiary has complied with the PTO’s duty of candor and
disclosure for such patent applications; the Company is unaware of any facts which preclude the
grant of a material patents from its pending material patent applications; and the Company is
unaware of the filing of any patent applications by third parties covering, or any other rights of
third parties to any, of the Company’s material Intellectual Property, (iii) the Company has no
knowledge of any infringement by the
8
Company or any subsidiary of the Intellectual Property of others, where the Company believes
such infringement could have a material adverse effect on the Company and its subsidiaries, taken
as a whole, and (iv) there is no (A) claim being made against the Company or its subsidiaries, (B)
to the knowledge of the Company, claim being made against any employee of the Company or its
subsidiaries, or (C) to the knowledge of the Company, basis for any such claim, in each case,
regarding the Intellectual Property of the Company, its subsidiaries or others which might have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(x) The Company and its subsidiaries maintain insurance of the types and in the amounts that
the Company reasonably believes is adequate for its business, including, but not limited to,
insurance covering real and personal property owned or leased by the Company or a subsidiary
against theft, damage, destruction, acts of vandalism and other risks customarily insured against,
all of which insurance is in full force and effect.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective numbers of Firm Shares set forth in Schedule II hereto
opposite its name at the purchase price set forth in Schedule I hereto (the “Purchase Price”).
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to the number of
Additional Shares set forth in Schedule I hereto at the Purchase Price. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated may exercise this right on behalf of the Underwriters in whole or in part (but not
more than once) by giving written notice not later than 30 days after the date of this Agreement.
Any exercise notice shall specify the number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be purchased. Each purchase date must be at
least one business day after the written notice is given and may not be earlier than the closing
date for the Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 4 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Shares. On each day, if
any, that Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the same proportion to
the total number of Additional Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
9
The Company hereby agrees that, without the prior written consent of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated and Deutsche Bank Securities Inc. on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock; or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise; or (3) file any registration statement
with the Commission relating to the offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock (other than on Form S-8 or a
successor form).
The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof that is disclosed
in the Time of Sale Prospectus or of which the Underwriters have been advised in writing, (c) the
grant of options or the issuance of shares of Common Stock under any employee benefit plan
described in the Time of Sale Prospectus, provided that such options or shares (other than shares
issued to non-employee directors and options and shares issued under the Company’s employee stock
purchase plan) shall not vest during the 90-day restricted period or (d) the establishment of a
trading plan pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), for the transfer of shares of Common Stock, provided that such plan does not
provide for the transfer of Common Stock during the 90-day restricted period and no public
announcement or filing under the Exchange Act regarding the establishment of such plan shall be
required of or voluntarily made by or on behalf of the undersigned or the Company.
3. Terms of Public Offering. The Company is advised by you that the Underwriters propose to
make a public offering of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Company
is further advised by you that the Shares are to be offered to the public upon the terms set forth
in the Prospectus.
4. Payment and Delivery. Payment for the Firm Shares to be sold by the Company shall be made
to the Company in federal or other funds immediately available in Boston, Massachusetts against
delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m.,
Boston time, on November 16, 2010, or at such other time on the same or such other date, not later
10
than November 23, 2010, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall be made to the Company in federal or other funds
immediately available in Boston, Massachusetts against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m., Boston time, on the date specified
in the corresponding notice described in Section 2 or at such other time on the same or on such
other date, in any event not later than the tenth business day thereafter, as shall be designated in writing by
you.
The Firm Shares and any Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with the transfer of the
Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has complied in all
11
material respects with all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, outside counsel for the Company, dated the Closing Date, substantially
in the form of Exhibit B hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Dorda ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Rechtsanwälte GmbH, outside counsel for Windtec Consulting GmbH, a corporation incorporated
according to the laws of Austria and a wholly-owned subsidiary of the Company (“Windtec”), dated
the Closing Date, substantially in the form of Exhibit C hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Ropes & ▇▇▇▇ LLP,
counsel for the Underwriters, dated the Closing Date, substantially in the form of Exhibit D
hereto.
The opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP described in Section 5(c) above
shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from PricewaterhouseCoopers LLP, independent public accountants,
containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided
that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date
hereof.
(g) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you
and certain officers and directors of the Company relating to sales and certain other dispositions
of shares of Common Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Shares.
12
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the Registration Statement (including
exhibits thereto and documents incorporated by reference) and for delivery to each other
Underwriter that so requests a conformed copy of the Registration Statement (without exhibits
thereto but including documents incorporated by reference) and to furnish to you in Boston, without
charge, prior to 10:00 a.m. Boston time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time
of Sale Prospectus, the Prospectus, any documents incorporated therein by reference and any
supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which you reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the
13
circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to
which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request; provided that in no event shall the Company
or any of its subsidiaries be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is
not now subject or to subject itself to taxation in excess of a nominal amount in respect of doing
business in any jurisdiction.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
7. Expenses. Whether or not the transactions contemplated in this Agreement are consummated
or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including: (i) the fees,
disbursements and
14
expenses of the Company’s counsel and the Company’s accountants in connection with the
registration and delivery of the Shares under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or
on behalf of, used by, or referred to by the Company and amendments and supplements to any of the
foregoing, including the filing fees payable to the Commission relating to the Shares (within the
time required by Rule 456 (b)(1), if applicable), all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the
Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost
of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer
and sale of the Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as provided in
Section 6(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to
the Underwriters incurred in connection with the review and qualification of the offering of the
Shares by the Financial Industry Regulatory Authority, Inc., (v) all costs and expenses incident to
listing the Shares on the NASDAQ Global Select Market and other national securities exchanges and
foreign stock exchanges, (vi) the cost of printing certificates representing the Shares, (vii) the
costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of
the Company relating to investor presentations on any “road show” undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, expenses associated with
the preparation or dissemination of any electronic road show, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such consultants, and
half the cost of any aircraft chartered in connection with the road show, (ix) the document
production charges and expenses associated with printing this Agreement and (x) all other costs and
expenses incident to the performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 9 entitled “Indemnity and Contribution” and the last paragraph of
Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by
them, any advertising expenses connected with any offers they may make and travel and lodging
expenses of the representatives of the Underwriters in connection with the road show. In addition,
the Underwriters will pay half of the cost of any aircraft chartered in connection with the road
show.
15
8. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of
such Underwriter that otherwise would not be required to be filed by the Company thereunder, but
for the action of the Underwriter.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus or the Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonably incurred fees and
16
disbursements of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by the Manager authorized to appoint counsel under this
Section set forth in Schedule I hereto, in the case of parties indemnified pursuant to
Section 9(a), and by the Company, in the case of parties indemnified
pursuant to Section 9(b). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in Section 9(a) or 9(b) is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by
17
clause
9(d)(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 9(d)(i) above but also the relative fault
of the Company on the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the offering of the Shares shall
be deemed to be in the same respective proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters bear to the aggregate initial public offering price of the
Shares set forth on the cover page of the Prospectus. The relative fault of the Company on the one
hand and the Underwriters on the other hand 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 or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters’ respective obligations to
contribute pursuant to this Section 9 are several in proportion to the respective number of Shares
they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in Section 9(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 9(d) shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
(f) The indemnity and contribution provisions contained in this Section 9 and the
representations, warranties and other statements of the Company contained in this Agreement shall
remain operative and in full force and
18
effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or
on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any
Underwriter or by or on behalf of the Company, its officers or directors or any person controlling
the Company and (iii) acceptance of and payment for any of the Shares.
10. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or
in any over-the-counter market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium on commercial
banking activities shall have been declared by Federal or New York State authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in financial markets
or any calamity or crisis that, in your judgment, is material and adverse and which, singly or
together with any other event specified in this clause (v), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms
and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 11 by an
amount in excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to you and the Company for the purchase
19
of such Firm Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in the Registration
Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate number of Additional
Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the
option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on
such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence of such default.
Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
12. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Company, on the
one hand, and the Underwriters, on the other, with respect to the preparation of any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the
purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Shares.
20
13. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
14. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
16. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at in care of (i) ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity Syndicate
Desk, with a copy to the Legal Department and (ii) Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Equity Capital Markets Syndicate Desk
and Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel; if to the Company shall be delivered, mailed or sent to ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Chief Executive Officer, and (which shall not constitute notice)
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
(signature page follows)
21
| Very truly yours, American Superconductor Corporation |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Chief Executive Officer | |||
[Signature Page to Underwriting Agreement]
| Accepted as of the date hereof ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated Deutsche Bank Securities Inc. ▇▇▇▇▇▇▇▇▇ & Company, Inc. Pacific Crest Securities LLC Acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto |
||||
| By: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated | |||
| By: | /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| By: | Deutsche Bank Securities Inc. | |||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
[Signature Page to Underwriting Agreement]
SCHEDULE I
Managers: |
||||
Managers authorized to
release lock-up under
Section 7: |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated Deutsche Bank Securities Inc. |
|||
Managers authorized to
appoint counsel under
Section 8(c): |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated Deutsche Bank Securities Inc. |
|||
| Registration Statement File No.: | 333-170455 | |||
Time of Sale
Prospectus: |
1. | The prospectus dated November 8, 2010 | ||
| relating to the Shelf Securities | ||||
| 2. | The preliminary prospectus | |||
| supplement dated November 8, 2010 | ||||
| relating to the Shares | ||||
| 3. | The information set forth in the | |||
| Term Sheet attached hereto as | ||||
| Exhibit E | ||||
| Number of Firm Shares: | 4,600,000 | |||
| Number of Additional Shares: | 690,000 | |||
| Purchase Price: | $33.81375 a share | |||
| Initial Public Offering Price: | $33.50 a share | |||
| Selling Concession: | $0.96 a share | |||
| Closing Location: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
|||
SCHEDULE II
| Underwriter | Number of Firm Shares To Be Purchased | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
1,997,320 | |||
Deutsche Bank Securities Inc. |
1,997,320 | |||
▇▇▇▇▇▇▇▇▇ & Company, Inc. |
403,880 | |||
Pacific Crest Securities LLC |
201,480 | |||
Total: |
4,600,000 | |||