6,250,000 Shares Smith & Wesson Holding Corporation Common Stock ($0.001 Par Value) EQUITY UNDERWRITING AGREEMENT
Exhibit 1.1
6,250,000 Shares
▇▇▇▇▇ & Wesson Holding Corporation
Common Stock
($0.001 Par Value)
May 19, 2008
Deutsche Bank Securities Inc.
As Representative of the Several Underwriters
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representative of the Several Underwriters
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ & Wesson Holding Corporation, a Nevada corporation (the “Company”), proposes to sell to
the several underwriters (the “Underwriters”) named in Schedule I hereto for whom you are acting as
representative (the “Representative” or “you”) an aggregate of 6,250,000 shares (the “Shares”) of
the Company’s common stock, $0.001 par value (the “Common Stock”). The respective amounts of the
Shares to be so purchased by the several Underwriters are set forth opposite their names in
Schedule I hereto.
As the Representative, you have advised the Company (a) that you are authorized to enter into
this Agreement on behalf of the several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers of Shares set forth opposite
their respective names in Schedule I.
In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants to each of the Underwriters as follows:
(a) A “shelf” registration statement on Form S-3 (File No. 333-136842) with respect to the
Shares has been prepared by the Company in conformity with the requirements of the Securities Act
of 1933, as amended (the “Act”), and the rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder and has been filed with the
Commission. The Company and the transactions contemplated by this Agreement meet the requirements
and comply with the conditions for the use of Form S-3. The Registration Statement meets the
requirements of Rule 415(a)(1)(x)
under the Act and complies in all material respects with said rule. Copies of such registration
statement, including any amendments thereto, the base prospectus (meeting the requirements of the
Rules and Regulations) contained therein and the exhibits, financial statements and schedules, as
finally amended and revised, have heretofore been made available to you. Such registration
statement, together with any registration statement filed by the Company pursuant to Rule 462(b)
under the Act, is herein referred to as the “Registration Statement,” which shall be deemed to
include all information omitted therefrom in reliance upon Rules 430A, 430B or 430C under the Act
and contained in the Prospectus referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement (except to the extent that the Company’s
filing of its Form 10-K on July 16, 2007 constitutes such a post-effective amendment) has been
filed as of the date of this Agreement. The term “Prospectus” as used in this Agreement means the
form of base prospectus together with the final prospectus supplement first filed with the
Commission pursuant to and within the time limits described in Rule 424(b) under the Act. Any
preliminary prospectus relating to the Shares prior to the date hereof is referred to as a
“Preliminary Prospectus.” Any reference herein to the Registration Statement, any Preliminary
Prospectus or the Prospectus or to any amendment or supplement to any of the foregoing documents
shall be deemed to refer to and include any documents incorporated by reference therein, and, in
the case of any reference herein to the Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus Supplement under Rule 424(b) under the Act,
and prior to the termination of the offering of the Shares by the Underwriters.
(b) As of the Applicable Time (as defined below) and as of the Closing Date, neither (i) the
General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable
Time, the Statutory Prospectus (as defined below) and the information included on Schedule II
hereto, all considered together (collectively, the “General Disclosure Package”), nor (ii) any
individual Limited Use Free Writing Prospectus (as defined below), when considered together with
the General Disclosure Package, included or will include any untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to information contained in or omitted from
any Issuer Free Writing Prospectus, in reliance upon, and in conformity with, written information
furnished to the Company by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information is that described in Section
13 herein. As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 6:00 pm (New York time) on the date of this Agreement or such other
time as agreed to by the Company and the Representative.
“Statutory Prospectus” as of any time means the Preliminary Prospectus relating to the Shares
that is included in the Registration Statement immediately prior to that time.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Shares 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) under the Act.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
identified on Schedule III to this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.
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(c) The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Nevada, with corporate power and authority to own or lease
its properties and conduct its business as described in the Registration Statement, the General
Disclosure Package and the Prospectus. The Company has no significant subsidiaries (as such term
is defined in Rule 1-02 of Regulation S-X promulgated by the Commission) other than as listed in
Schedule V hereto (collectively, the “Subsidiaries”). Each of the Subsidiaries has been duly
organized and is validly existing as an entity in good standing under the laws of the jurisdiction
of its organization, with corporate power and authority to own or lease its properties and conduct
its business as described in the Registration Statement, the General Disclosure Package and the
Prospectus. The Subsidiaries are the only subsidiaries, direct or indirect, of the Company. The
Company and each of its Subsidiaries are duly qualified to transact business in all jurisdictions
in which the conduct of their business requires such qualification, except where the failure to be
so qualified could not reasonably be expected to (i) result in any material adverse change, or
prospective material adverse change, in or affecting the business, operations, or financial
condition of the Company and of its Subsidiaries taken as a whole, or (ii) prevent, burden or
impair the consummation of the transactions contemplated by this Agreement (collectively a
“Material Adverse Effect”). The outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and non-assessable and are owned by
the Company or another Subsidiary free and clear of all liens, encumbrances and equities and claims
except as otherwise described in the Registration Statement, the General Disclosure Package and the
Prospectus; and no options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into shares of capital stock or ownership
interests in each of the Subsidiaries are outstanding.
(d) The outstanding shares of Common Stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; the Shares to be issued and sold by the
Company have been duly authorized and when issued and paid for as contemplated herein will be
validly issued, fully paid and non-assessable; and no preemptive rights of stockholders exist with
respect to any of the Shares or the issue and sale thereof. Neither the filing of the Registration
Statement nor the offering or sale of the Shares as contemplated by this Agreement gives rise to
any rights, other than those which have been waived or satisfied, for or relating to the
registration of any shares of Common Stock.
(e) The Company has authorized capital stock as set forth in the Registration Statement and
the Prospectus (and any similar section or information contained in the General Disclosure
Package). All of the Shares conform to the description thereof contained in the Registration
Statement, the General Disclosure Package and the Prospectus. The form of certificates for the
Shares conforms to the corporate law of the jurisdiction of the Company’s incorporation.
(f) The Commission has not issued an order preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the proposed offering
of the Shares, and no proceeding for that purpose or pursuant to Section 8A of the Act has been
instituted or, to the Company’s knowledge, threatened by the Commission. The Registration Statement
contains, and the Prospectus and any amendments or supplements thereto will contain, all statements
which are required to be stated therein by, and will conform to, the requirements of the Act and
the Rules and Regulations. The documents incorporated, or to be incorporated, by reference in the
Prospectus, at the time filed with the Commission conformed or will conform, in all material
respects to the requirements of the Securities Exchange Act of 1934 (“Exchange Act”) or the Act, as
applicable, and the rules and regulations of the Commission thereunder. The Registration Statement
and any amendment thereto do not contain, and will not contain, any untrue statement of a material
fact and do not omit, and will not omit, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and
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any amendments and supplements thereto do not contain, and will not contain, any untrue statement
of a material fact; and do not omit, and will not omit, to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or warranties as to
information contained in or omitted from the Registration Statement or the Prospectus, or any such
amendment or supplement, in reliance upon, and in conformity with, written information furnished to
the Company by any Underwriter through the Representative specifically for use therein, it being
understood and agreed that the only such information is that described in Section 13 herein.
(g) 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 Shares or until any earlier date that
the Company notified or notifies the Underwriters 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 contained in the Registration Statement or the Prospectus, including any document
incorporated by reference therein that has not been superseded or modified. 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 included or 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 light of the circumstances, not misleading, the Company
has notified or will notify promptly the Underwriters so that any use of such Issuer Free Writing
Prospectus may cease until it is amended or supplemented. The foregoing two sentences do not apply
to statements or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representative
specifically for use therein.
(h) The Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the offering and sale of the Shares other than any Preliminary
Prospectus, the Prospectus, any Permitted Free Writing Prospectus (defined below) and other
materials, if any, permitted under the Act and consistent with Section 4(b)(ii) below. The Company
will file with the Commission all Issuer Free Writing Prospectuses in the time required under Rule
433(d) under the Act. The Company has satisfied or will satisfy the conditions in Rule 433 under
the Act to avoid a requirement to file with the Commission any electronic road show.
(i) (i) At the time of filing the Registration Statement and (ii) as of the date hereof (with
such date being used as the determination date for purposes of this clause (ii)), the Company was
not and is not an “ineligible issuer” (as defined in Rule 405 under the Act, without taking into
account any determination by the Commission pursuant to Rule 405 under the Act that it is not
necessary that the Company be considered an ineligible issuer), including, without limitation, for
purposes of Rules 164 and 433 under the Act with respect to the offering of the Shares as
contemplated by the Registration Statement.
(j) The consolidated financial statements of the Company and each of its Subsidiaries,
together with related notes and schedules as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus, present fairly in all material respects the financial
position and the results of operations and cash flows of the Company and the consolidated
Subsidiaries, at the indicated dates and for the indicated periods. Such financial statements and
related schedules have been prepared in accordance with generally accepted principles of accounting
(“GAAP”), consistently applied throughout the periods involved, except as disclosed therein, and
all adjustments necessary for a fair presentation in all material respects of results for such
periods have been made. The summary and selected consolidated financial and statistical data
included or incorporated by reference in the Registration Statement, the General Disclosure Package
and the Prospectus presents fairly in all material respects the information shown therein and such
data has been
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compiled on a basis consistent with the financial statements presented therein and the books and
records of the Company. All disclosures contained in the Registration Statement, the General
Disclosure Package and the Prospectus regarding “non-GAAP financial measures” (as such term is
defined by the Rules and Regulations) comply with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent applicable. The Company and each of its Subsidiaries
do not have any material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any “variable interest entities” within the meaning of Financial
Accounting Standards Board Interpretation No. 46), not disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus. There are no financial statements (historical or
pro forma) that are required to be included in the Registration Statement, the General Disclosure
Package or the Prospectus that are not included as required.
(k) BDO ▇▇▇▇▇▇▇, LLP, who have certified certain of the financial statements filed with the
Commission as part of, or incorporated by reference in, the Registration Statement, the General
Disclosure Package and the Prospectus, is an independent registered public accounting firm with
respect to the Company and each of its Subsidiaries within the meaning of the Act and the
applicable Rules and Regulations and the Public Company Accounting Oversight Board (United States)
(the “PCAOB”).
(l) Except as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, neither the Company nor any of its Subsidiaries is aware of (i) any material weakness
in its internal control over financial reporting or (ii) change in internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(m) Solely to the extent that the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and the rules and
regulations promulgated by the Commission and the Nasdaq Global Select Market thereunder (the
“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) has been applicable to the Company, there is and has been no failure on the
part of the Company to comply in all material respects with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company
has taken all necessary actions to ensure that it is in compliance in all material respects with
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(n) There is no action, suit, claim or proceeding pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries before any court or administrative agency
or otherwise which if determined adversely to the Company or any of its Subsidiaries would have,
individually or in the aggregate, a Material Adverse Effect, except as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus.
(o) The Company and each of its Subsidiaries have good and marketable title to all of the
properties and assets reflected in the consolidated financial statements hereinabove described or
described in the Registration Statement, the General Disclosure Package and the Prospectus, subject
to no lien, mortgage, pledge, charge or encumbrance of any kind except those reflected in such
financial statements or described in the Registration Statement, the General Disclosure Package and
the Prospectus or which are not material in amount or would not materially interfere with the use
to be made of such properties or assets. The Company and each of its Subsidiaries occupy their
leased properties under valid and binding leases conforming in all material respects to the
description thereof set forth in the Registration Statement, the General Disclosure Package and the
Prospectus.
(p) The Company and each of its Subsidiaries have filed all Federal, State, local and foreign
tax returns which have been required to be filed and have paid all taxes indicated by such returns
and all assessments received by them or any of them to the extent that such taxes have become due
and are not
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being contested in good faith and for which an adequate reserve for accrual has been established in
accordance with GAAP. All tax liabilities have been adequately provided for in the financial
statements of the Company, and the Company does not know of any actual or proposed additional
material tax assessments.
(q) Since the respective dates as of which information is given in the Registration Statement,
the General Disclosure Package and the Prospectus, as each may be amended or supplemented, there
has not been any event that has resulted in a Material Adverse Effect, whether or not occurring in
the ordinary course of business, and there has not been any material transaction entered into or
any material transaction that is probable of being entered into by the Company or any of its
Subsidiaries, other than transactions in the ordinary course of business and changes and
transactions described in the Registration Statement, the General Disclosure Package and the
Prospectus, as each may be amended or supplemented. The Company and each of its Subsidiaries have
no material contingent obligations which are not disclosed in the Company’s financial statements
which are included in the Registration Statement, the General Disclosure Package and the
Prospectus.
(r) Neither the Company nor any of its Subsidiaries is or with the giving of notice or lapse
of time or both, will be, (i) in violation of its certificate or articles of incorporation,
by-laws, certificate of formation, limited liability agreement, partnership agreement or other
organizational documents or (ii) in violation of or in default under any agreement, lease,
contract, indenture or other instrument or obligation to which it is a party or by which it, or any
of its properties, is bound and, solely with respect to this clause (ii), which violation or
default would have a Material Adverse Effect. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the fulfillment of the terms hereof will
not conflict with or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or other 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 or
any of their respective properties is bound, or of the certificate or articles of incorporation or
by-laws of the Company or any law, order, rule or regulation, judgment, order, writ or decree
applicable to the Company or any of its Subsidiaries of any court or of any government, regulatory
body or administrative agency or other governmental body having jurisdiction, except to the extent
that such conflict, breach or default would not have a Material Adverse Effect.
(s) There is no document, contract or other agreement required to be described in the
Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required by the Act or the Rules and Regulations. Each
description of a contract, document or other agreement in the Registration Statement and the
Prospectus accurately reflects in all material respects the terms of the underlying contract,
document or other agreement. Each contract, document or other agreement described in the
Registration Statement and Prospectus or listed in the exhibits to the Registration Statement or
incorporated by reference that has not otherwise been terminated or expired in accordance with its
terms is in full force and effect and is valid and enforceable against the Company in accordance
with its terms (except as rights to indemnity and contribution thereunder may be limited by federal
or state securities laws and matter of public policy and except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors’ rights generally and by general equitable principle). Neither the
Company nor any of its Subsidiaries nor, to the Company’s knowledge, any other party is in default
in the observance or performance of any term or obligation to be performed by it under 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 or their respective properties or businesses may be bound, and
no event has occurred which with notice or lapse of
time or both would constitute such a default, in any such case in which the default or event,
individually or in the aggregate, would have a Material Adverse Effect.
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(t) The execution and delivery of, and the performance by the Company of its obligations
under, this Agreement have been duly and validly authorized by all necessary corporate action on
the part of the Company, and this Agreement has been duly executed and delivered by the Company.
(u) Each approval, consent, order, authorization, designation, declaration or filing by or
with any regulatory, administrative or other governmental body necessary in connection with the
execution and delivery by the Company of this Agreement and the consummation of the transactions
herein contemplated (except such additional steps as may be required by the Commission, the
Financial Industry Regulatory Authority (“FINRA”) or such additional steps as may be necessary to
qualify the Shares for public offering by the Underwriters under state securities or Blue Sky laws)
has been obtained or made and is in full force and effect.
(v) Except as described in the Registration Statement or in any document incorporated by
reference therein, (i) the Company and each of its Subsidiaries hold all material licenses,
certificates and permits from governmental authorities which are necessary to the conduct of their
businesses in the manner in which they are being conducted; (ii) the Company and each of its
Subsidiaries own or possess the right to use all patents, patent rights, trademarks, trade names,
service marks, service names, copyrights, license rights, know-how (including trade secrets and
other unpatented and unpatentable proprietary or confidential information, systems or procedures)
and other intellectual property rights (“Intellectual Property”) necessary to carry on their
business in all material respects in the manner in which it is being conducted; and (iii) to the
Company’s knowledge, neither the Company nor any of its Subsidiaries has infringed, and none of the
Company or any of its Subsidiaries have received notice of conflict with, any Intellectual Property
of any other person or entity except in the case of clause (iii) as would not have a Material
Adverse Effect. The Company has taken all steps reasonably necessary to secure ownership interests
in Intellectual Property created for it by any contractors. There are no outstanding options,
licenses or agreements of any kind relating to the Intellectual Property of the Company that are
required to be described in the Registration Statement, the General Disclosure Package and the
Prospectus and are not described therein in all material respects. The Company is not a party to
or bound by any options, licenses or agreements with respect to the Intellectual Property of any
other person or entity that are required to be set forth in the Prospectus and are not described
therein in all material respects. None of the technology employed by the Company has been obtained
or is being used by the Company in violation of any contractual obligation binding on the Company
or any of its officers, directors or employees or otherwise in violation of the rights of any
persons; the Company has not received any written or oral communications alleging that the company
has violated, infringed or conflicted with, or, by conducting its business as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus, would violate, infringe
or conflict with, any of the Intellectual Property of any other person or entity. The Company
knows of no infringement by others of Intellectual Property owned by or licensed to the Company.
(w) Neither the Company, nor to the Company’s knowledge, any of its affiliates, has taken or
may take, directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the stabilization or manipulation
of the price of the shares of Common Stock to facilitate the sale or resale of the Shares. The
Company acknowledges that the Underwriters may engage in passive market making transactions in the
Shares on the Nasdaq Global Select Market in accordance with Regulation M under the Exchange Act.
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(x) Neither the Company nor any of its Subsidiaries is or, after giving effect to the offering
and sale of the Shares contemplated hereunder and the application of the net proceeds from such
sale as described in the Prospectus, will be an “investment company” within the meaning of such
term under the Investment Company Act of 1940 as amended (the “1940 Act”), and the rules and
regulations of the Commission thereunder.
(y) The Company and each of its Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with 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
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(z) The Company has established and maintains “disclosure controls and procedures” (as defined
in Rules 13a-14(c) and 15d-14(c) under the Exchange Act); the Company’s “disclosure controls and
procedures” are reasonably designed to ensure that all information (both financial and
non-financial) required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within the time periods
specified in the rules and regulations of the Exchange Act, and that all such information is
accumulated and communicated to the Company’s management as appropriate to allow timely decisions
regarding required disclosure and to make the certifications of the Chief Executive Officer and
Chief Financial Officer of the Company required under the Exchange Act with respect to such
reports.
(aa) The statistical, industry-related and market-related data included in the Registration
Statement, the General Disclosure Package and the Prospectus are based on or derived from sources
which the Company reasonably and in good faith believes are reliable and accurate, and such data
agree with the sources from which they are derived.
(bb) The operations of the Company and each of its Subsidiaries are and have been conducted at
all times in compliance with applicable financial record-keeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering
statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any or its Subsidiaries with respect to the
Money Laundering Laws is pending or, to the Company’s knowledge, threatened.
(cc) The Company and each of its Subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as the Company believes is adequate for the conduct of their
respective businesses and the value of their respective properties and as is customary for
companies engaged in similar businesses.
(dd) The Company and each of its Subsidiaries is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company and each of its Subsidiaries would have any liability; the
Company and each of its Subsidiaries has not incurred and does not expect to incur liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or
(ii) Sections 412 or 4971 of the Internal Revenue
8
Code of 1986, as amended, including the regulations and published interpretations thereunder (the
“Code”); and each “pension plan” for which the Company or any of its Subsidiaries would have any
liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(ee) To the Company’s knowledge, there are no affiliations or associations between any member
of FINRA and any of the Company’s officers, directors or 5% or greater securityholders, except as
set forth in the Registration Statement.
(ff) Neither the Company nor any of its Subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws”), owns or operates any real property contaminated with any
substance that is subject to 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 could reasonably be expected to lead to such a claim.
(gg) The Company has filed a Notification Form: Listing of Additional Shares to include the
Shares on the Nasdaq Global Select Market.
(hh) The Company has taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or the listing of the Common Stock on
the Nasdaq Global Select Market, nor has the Company received any notification that the Commission
or the Nasdaq Global Select Market is contemplating terminating such registration or listing.
(ii) There are no relationships or related-party transactions involving the Company or any of
its Subsidiaries or any other person required to be described in the Prospectus which have not been
described as required.
(jj) The Company has not sold or issued any securities that would be integrated with the
offering of the Shares contemplated by this Agreement pursuant to the Act, the Rules and
Regulations or the interpretations thereof by the Commission.
(kk) Except for this Agreement, neither the Company nor any of its Subsidiaries is a party to
any contract, agreement or understanding with any person that would give rise to a valid claim
against the Company or the Underwriters for a brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Shares.
(ll) To enable the Underwriters to rely on Rule 2710(b)(7)(C)(i) of FINRA, the Company
represents that the Company (i) has a non-affiliate, public common equity float of at least $150
million or a non-affiliate, public common equity float of at least $100 million and annual trading
volume of at least three million shares and (ii) has been subject to the Exchange Act reporting
requirements for a period of at least 36 months.
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2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to sell to the Underwriters, and
each Underwriter agrees, severally and not jointly, to purchase, the number of Shares set forth
opposite the name of each Underwriter in Schedule I hereof, subject to adjustments in accordance
with Section 9 hereof, at a price of $5.17 per share.
(b) Payment for the Shares to be sold hereunder is to be made in Federal (same day) funds
against delivery of certificates therefor to the Representative for the several accounts of the
Underwriters. Such payment and delivery are to be made through the facilities of The Depository
Trust Company, New York, New York at 10:00 a.m., New York time, on the fourth business day after
the date of this Agreement or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being herein referred to as
the “Closing Date.” (As used herein, “business day” means a day on which the Nasdaq Global Select
Market is open for trading and on which banks in New York are open for business and are not
permitted by law or executive order to be closed.)
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a public offering of the Shares as
soon as the Representative deems it advisable to do so. The Shares are to be initially offered to
the public at the initial public offering price set forth in the Prospectus. The Representative
may from time to time thereafter change the public offering price and other selling terms.
It is further understood that you will act as the Representative for the Underwriters in the
offering and sale of the Shares in accordance with a Master Agreement Among Underwriters entered
into by you and the several other Underwriters.
4. Covenants of the Company.
The Company covenants and agrees with the several Underwriters that:
(a) The Company will (i) prepare and timely file with the Commission under Rule 424(b) under
the Act a Prospectus in a form approved by the Representative containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B
or 430C under the Act, (ii) not file any amendment to the Registration Statement or distribute an
amendment or supplement to the General Disclosure Package or the Prospectus or document
incorporated by reference therein of which the Representative shall not previously have been
advised and furnished with a copy or to which the Representative shall have reasonably objected in
writing or which is not in compliance with the Rules and Regulations and (iii) file on a timely
basis all reports and any definitive proxy or information statements required to be filed by the
Company with the Commission subsequent to the date of the Prospectus and prior to the termination
of the offering of the Shares by the Underwriters.
(b) The Company will (i) not make any offer relating to the Shares that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 under the Act) required to be filed by the Company with the Commission under
Rule 433 under the Act unless the Representative approves its use in writing prior to first use
(each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the
Representative hereto shall be deemed to
10
have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III
hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus,
(iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free
Writing Prospectus, including the requirements relating to timely filing with the Commission,
legending and record keeping and (iv) not 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 Act a free
writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise
would not have been required to file thereunder. The Company will satisfy the conditions in Rule
433 under the Act to avoid a requirement to file with the Commission any electronic road show.
(c) The Company will advise the Representative promptly (i) when the Registration Statement or
any post-effective amendment thereto shall have become effective, (ii) of receipt of any comments
from the Commission, (iii) of any request of the Commission for amendment of the Registration
Statement or for supplement to the General Disclosure Package or the Prospectus or for any
additional information, and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution
of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its
commercially reasonable efforts to prevent the issuance of any such order and to obtain as soon as
possible the lifting thereof, if issued.
(d) The Company will cooperate with the Representative in endeavoring to qualify the Shares
for sale under the securities laws of such jurisdictions as the Representative may reasonably have
designated in writing and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company shall not be
required to qualify as a foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not now so qualified or required to file such a consent. The Company
will, from time to time, prepare and file such statements, reports, and other documents, as are or
may be required to continue such qualifications in effect for so long a period as the
Representative may reasonably request for distribution of the Shares.
(e) The Company will deliver to, or upon the order of, the Representative, from time to time,
as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the
Representative may reasonably request. The Company will deliver to, or upon the order of, the
Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice
referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under
the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented,
as the Representative may reasonably request. The Company will make available to the
Representative at or before the Closing Date, a copy of the executed Registration Statement and all
amendments thereto including all exhibits filed therewith, and will deliver to the Representative
such number of copies of the Registration Statement (including such number of copies of the
exhibits filed therewith that may reasonably be requested), including documents incorporated by
reference therein, and of all amendments thereto, as the Representative may reasonably request.
(f) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act,
and the rules and regulations of the Commission thereunder, so as to permit the completion of the
distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under
the Act) is required by law to be delivered by an Underwriter or a dealer, any event shall occur as
a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters,
it becomes necessary to amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing
11
at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at
any time to amend or supplement the Prospectus to comply with any law, the Company promptly will
either (i) prepare and file with the Commission an appropriate amendment to the Registration
Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by reference in the
Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with
applicable law.
(g) If the General Disclosure Package 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
as a result of which, in the judgment of the Company or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the Registration Statement then
on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to
comply with any law, the Company promptly will either (i) prepare, file with the Commission (if
required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to
the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in the General Disclosure Package
so that the General Disclosure Package as so amended or supplemented will not, in the light of the
circumstances, be misleading or conflict with the Registration Statement then on file, or so that
the General Disclosure Package will comply with applicable law.
(h) The Company will make generally available to its security holders, as soon as it is
practicable to do so, but in any event not later than 15 months after the effective date of the
Registration Statement, an earnings statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 under the Act.
(i) No offering, sale, short sale or other disposition of any shares of Common Stock of the
Company or other securities convertible into or exchangeable or exercisable for shares of Common
Stock or derivative of Common Stock (or agreement for such) will be made for a period of 60 days
after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder
or with the prior written consent of the Representative. Notwithstanding the foregoing, if (i)
during the last 17 days of the 60-day restricted period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (ii) prior to the expiration
of the 60-day restricted period, the Company announces that it will release earnings results during
the 16-day period following the last day of the 60-day restricted period, then in each case the
restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day
period beginning on the date of the release of the earnings results or the occurrence of material
news or a material event relating to the Company, as the case may be, unless the Representative
waives, in writing, such extension.
(j) The Company will use its commercially reasonable efforts to maintain the listing of the
Shares on the Nasdaq Global Select Market or another national securities exchange after the Closing
Date.
(k) The Company has caused each officer and director of the Company listed on Schedule IV to
furnish to you, on or prior to the date of this Agreement, a letter or letters, substantially in
the form attached hereto as Exhibit A (the “Lockup Agreement”).
12
(l) The Company shall apply the net proceeds of its sale of the Shares as set forth in the
Registration Statement, General Disclosure Package and the Prospectus.
(m) The Company shall not invest, or otherwise use, the proceeds received by the Company from
its sale of the Shares in such a manner as would require the Company or any of its Subsidiaries to
register as an investment company under the 1940 Act.
(n) The Company will maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
(o) The Company will not take, directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company in connection with the distribution of
the Shares.
5. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the performance of the
obligations of the Company under this Agreement, including, without limiting the generality of the
foregoing, the following: (i) accounting fees of the Company; (ii) the fees and disbursements of
counsel for the Company; (iii) the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the Issuer Free
Writing Prospectuses, the Prospectus, this Agreement, the Listing Application, if any, the Blue Sky
Survey and any supplements or amendments thereto; (iv) the filing fees of the Commission; (v) the
filing fees and expenses (including legal fees and disbursements incurred by the Underwriters)
incident to securing any required review by FINRA of the terms of the sale of the Shares; (vi) the
Listing Fee of the Nasdaq Global Select Market; and (vii) the expenses of the Underwriters in
connection with investigating, marketing, and proposing to market the Shares or in contemplation of
performing their obligations hereunder, including legal fees and disbursements, in an amount not to
exceed $150,000 in the aggregate.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Shares on the Closing Date are
subject to the accuracy, as of the Applicable Time and the Closing Date, of the representations and
warranties of the Company contained herein in all material respects (except for those
representations and warranties of the Company contained herein which are qualified by materiality,
in which case such representations and warranties shall be accurate in all respects), and to the
performance by the Company of its covenants and obligations hereunder and to the following
additional conditions:
(a) The Registration Statement and all post-effective amendments thereto shall have become
effective and the Prospectus and each Issuer Free Writing Prospectus required shall have been filed
as required by Rules 424, 430A, 430B, 430C or 433 under the Act, as applicable, within the time
period prescribed by, and in compliance with, the Rules and Regulations, and any request of the
Commission for additional information (to be included in the Registration Statement or otherwise)
shall have been disclosed to the Underwriters and complied with to its reasonable satisfaction. No
stop order suspending the effectiveness of the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under
the Act shall have been taken or, to the knowledge of the Company, shall be contemplated or
threatened by the Commission and no injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as of the Closing Date
which would prevent the issuance of the Shares.
13
(b) The Representative shall have received on the Closing Date the opinion of ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, LLP, counsel for the Company, dated the Closing Date addressed to the Underwriters (and
stating that it may be relied upon by counsel to the Underwriters) as to the matters set forth in
Exhibit B.
(c) The Representative shall have received from ▇▇▇▇▇▇▇ Procter LLP, counsel for the
Underwriters, an opinion dated the Closing Date in such form as shall be agreed to with the
Representative.
(d) The Representative shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof and the Closing Date in form and substance satisfactory to you, of BDO
▇▇▇▇▇▇▇, LLP confirming that they are an independent registered public accounting firm with respect
to the Company and each of its Subsidiaries within the meaning of the Act and the applicable Rules
and Regulations and the PCAOB and stating that in their opinion the financial statements and
schedules examined by them and included or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act and the related Rules and Regulations; and containing
such other statements and information as is ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial and statistical
information contained in the Registration Statement, the General Disclosure Package and the
Prospectus.
(e) The Representative shall have received on the Closing Date a certificate or certificates
of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that,
as of the Closing Date, each of them severally represents on behalf of the Company as follows:
(i) The Registration Statement has become effective under the Act and no stop order suspending
the effectiveness of the Registration Statement or no order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been issued, and
no proceedings for such purpose or pursuant to Section 8A of the Act have been taken or are, to his
or her knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Company contained in Section 1 hereof are true
and correct in all material respects (except for those representations and warranties of the
Company contained in Section 1 hereof which are qualified by materiality, in which case such
representations and warranties shall be true and correct in all respects) as of the Closing Date;
(iii) All filings required to have been made pursuant to Rules 424, 430A, 430B or 430C under
the Act have been made as and when required by such rules; and
(iv) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and Prospectus, there has not been any event having a
Material Adverse Effect or any development involving a prospective Material Adverse Effect.
(f) On the Closing Date, the Company shall have furnished to the Representative a Secretary’s
Certificate of the Company.
(g) The Company shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably have requested.
14
(h) The Shares have been listed and authorized for trading on the Nasdaq Global Select Market.
(i) The Lockup Agreements described in Section 4(k) are in full force and effect.
The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects reasonably satisfactory to the
Representative and to ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representative by notifying the Company of such
termination in writing or by telegram at or prior to the Closing Date.
In such event, the Company and the Underwriters shall not be under any obligation to each
other (except to the extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the portion of the Shares required to be
delivered as and when specified in this Agreement are subject to the conditions that at the Closing
Date, no stop order suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or threatened.
8. Indemnification.
(a) The Company agrees:
(i) to indemnify and hold harmless each Underwriter and each person, if any, who
controls each Underwriter within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act, against any losses, claims, damages or liabilities to which such
Underwriter or any such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (A) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus the Prospectus or any amendment or supplement
thereto or (B) the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading in the light of
the circumstances under which they were made; 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, or omission
or alleged omission made in the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus, or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by or through the
Representative 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 13 herein; and
(ii) to reimburse each Underwriter and each such controlling person upon demand for any
legal or other out-of-pocket expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such loss, claim,
damage
15
or liability, action or proceeding or in responding to a subpoena or governmental inquiry
related to the offering of the Shares, whether or not such Underwriter or controlling person
is a party to any action or proceeding. In the event that it is finally judicially
determined that the Underwriters were not entitled to receive payments for legal and other
expenses pursuant to this subparagraph, the Underwriters will promptly return all sums that
had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company,
each of its directors, each of its officers, and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or liabilities to which the
Company or any such director, officer, or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any Preliminary Prospectus,
any Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement thereto, or (ii)
the omission or the alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding; provided, however, that
each Underwriter will be liable in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus or such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representative 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 13 herein. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(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 this Section 8, such
person (the “indemnified party”) shall promptly notify the person against whom such indemnity may
be sought (the “indemnifying party”) in writing. No indemnification provided for in Section 8(a)
or (b) shall be available to any party who shall fail to give notice as provided in this Section
8(c) if the party to whom notice was not given was unaware of the proceeding to which such notice
would have related and was materially prejudiced by the failure to give such notice, but the
failure to give such notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise than on account of
the provisions of Section 8(a) or (b). In case any such proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party and shall pay as incurred the reasonable fees and
disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred (or within 30 days of presentation) the
reasonable fees and expenses of the counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed to the retention of such
counsel, (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 or
(iii) the indemnifying party shall have failed to assume the defense and employ counsel acceptable
to the indemnified party within a reasonable period of time after notice of commencement of the
action. It is understood that the indemnifying party shall not, in connection with any
16
proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such firm shall be
designated in writing by you in the case of parties indemnified pursuant to Section 8(a) and by the
Company in the case of parties indemnified pursuant to Section 8(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. In addition, the indemnifying party will not, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding of which indemnification may be sought
hereunder unless such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or proceeding.
(d) To the extent the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under Section 8(a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) 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 from the
offering of the Shares. If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company 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 (or actions or proceedings in respect thereof), 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 shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. 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 on the one hand or the Underwriters on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) 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 above in this Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(d)
shall be deemed to include 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 subsection (d), (i) no Underwriter shall be required to contribute any amount
in excess of the underwriting discounts and commissions applicable to the Shares purchased by such
Underwriter and (ii) 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 Section 8(d) to
contribute are several in proportion to their respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus or any supplement or amendment thereto,
17
each party against whom contribution may be sought under this Section 8 hereby consents to the
jurisdiction of any court having jurisdiction over any other contributing party, agrees that
process issuing from such court may be served upon it by any other contributing party and consents
to the service of such process and agrees that any other contributing party may join it as an
additional defendant in any such proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall remain operative
and in full force and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Company, its directors or officers or
any persons controlling the Company, (ii) acceptance of any Shares and payment therefor hereunder,
and (iii) any termination of this Agreement. A successor to any Underwriter, or any person
controlling any Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 8.
9. Default By Underwriters.
If on the Closing Date, any Underwriter shall fail to purchase and pay for the portion of the
Shares which such Underwriter has agreed to purchase and pay for on such date (otherwise than by
reason of any default on the part of the Company), you, as Representative of the Underwriters,
shall use your reasonable efforts to procure within 36 hours thereafter one or more of the other
Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and
upon the terms set forth herein, the Shares which the defaulting Underwriter or Underwriters failed
to purchase. If during such 36 hours you, as such Representative, shall not have procured such
other Underwriters, or any others, to purchase the Shares agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of shares with respect to which such
default shall occur does not exceed 10% of the Shares to be purchased on the Closing Date, the
other Underwriters shall be obligated, severally, in proportion to the respective numbers of Shares
which they are obligated to purchase hereunder, to purchase the Shares which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate number of Shares with
respect to which such default shall occur exceeds 10% of the Shares to be purchased on the Closing
Date, the Company or you as the Representative of the Underwriters will have the right, by written
notice given within the next 36-hour period to the parties to this Agreement, to terminate this
Agreement without liability on the part of the non-defaulting Underwriters or of the Company except
to the extent provided in Section 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 9, the Closing Date may be postponed for such period,
not exceeding seven days, as you, as Representative, may determine in order that the required
changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any
other documents or arrangements may be effected. The term “Underwriter” includes any person
substituted for a defaulting Underwriter. Any action taken under this Section 9 shall not relieve
any defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
10. Notices.
All communications hereunder shall be in writing and, except as otherwise provided herein,
will be mailed, delivered, telecopied or telegraphed and confirmed as follows: (a) if to the
Underwriters, to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇; Attention: Syndicate Manager, with a copy to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
18
Attention: General Counsel, and with a copy to (which shall not constitute notice) ▇▇▇▇▇▇▇ Procter
LLP, The New York Times Building, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇; and (b) if to the Company, to ▇▇▇▇▇ & Wesson Holding Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Chief Financial Officer, with a copy to (which shall
not constitute notice) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇.
11. Termination.
This Agreement may be terminated by you by notice to the Company:
(a) at any time prior to the Closing Date if any of the following has occurred: (i) any
outbreak or material escalation of hostilities or declaration of war or national emergency or other
national or international calamity or crisis or material change in economic or political conditions
if the effect of such outbreak, escalation, declaration, emergency, calamity, crisis or change on
the financial markets of the United States would, in your judgment, make it impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the Shares, (ii)
suspension of trading in securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq Global Select Market or limitation on prices (other than limitations on
hours or numbers of days of trading) for securities on any such trading market, (iii) the
enactment, publication, decree or other promulgation of any statute, regulation, rule or order of
any court or other governmental authority which in your opinion materially and adversely affects or
may materially and adversely affect the business or operations of the Company, (iv) the declaration
of a banking moratorium by United States or New York State authorities, (v) the suspension of
trading of the Company’s common stock by the Nasdaq Global Select Market, the Commission, or any
other governmental authority, or (vi) the taking of any action by any governmental body or agency
in respect of its monetary or fiscal affairs which in your reasonable opinion has a material
adverse effect on the securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of the Underwriters and the Company
and their respective successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Shares from any Underwriter shall be deemed a
successor or assign merely because of such purchase.
13. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that the only information furnished or
to be furnished by any Underwriter to the Company for inclusion in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus consists of the
information set forth in the third paragraph, the first sentence of the fourth paragraph, and the
tenth through fifteenth paragraphs under the caption “Underwriting” in the Prospectus.
14. Miscellaneous.
(a) The reimbursement, indemnification and contribution agreements contained in this Agreement
and the representations, warranties and covenants in this Agreement shall remain in full force and
19
effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of the Company or its
directors or officers and (iii) delivery of and payment for the Shares under this Agreement.
(b) The Company acknowledges and agrees that each Underwriter, in providing investment banking
services to the Company in connection with the offering, including in acting pursuant to the terms
of this Agreement, has acted and is acting as an independent contractor and not as a fiduciary and
the Company does not intend such Underwriter to act in any capacity other than as an independent
contractor, including as a fiduciary or in any other position of higher trust.
(c) This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.
(d) This Agreement shall be governed by, and construed in accordance with, the law of the
State of New York, including, without limitation, Section 5-1401 of the New York General
Obligations Law.
[Signature Pages Follow]
20
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicates hereof, whereupon it will become a binding agreement between
the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||||
| ▇▇▇▇▇ & WESSON HOLDING CORPORATION | ||||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
The foregoing Equity Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
As Representative of the several
Underwriters listed on Schedule I
Underwriters listed on Schedule I
By
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||
| Authorized Officer | ||||
By
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇ |
21
SCHEDULE I
SCHEDULE OF UNDERWRITERS
| Number of Shares | ||||
| Underwriter | to be Purchased | |||
Deutsche Bank Securities Inc. |
4,062,500 | |||
▇▇▇▇▇ and Company, LLC |
2,187,500 | |||
Total: |
6,250,000 | |||
22
SCHEDULE II
PRICING INFORMATION
The price of the Shares to the public is $5.50 per share.
The underwriting discount is 6.0%.
23
SCHEDULE III
ISSUER FREE WRITING PROSPECTUS
None.
24
SCHEDULE IV
OFFICERS AND DIRECTORS EXECUTING LOCK UP AGREEMENTS
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
I. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
I. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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SCHEDULE V
SUBSIDIARIES
| Name of Organization | State or Jurisdiction | |
Fox Ridge Outfitters, Inc.
|
New Hampshire | |
▇.▇. ▇▇▇▇▇▇▇▇ Tool Company, Inc.
|
New Hampshire | |
O.L. Development, Inc.
|
New Hampshire | |
▇▇▇▇▇ & Wesson Corp.
|
Delaware | |
▇▇▇▇▇ & Wesson Firearms Training Centre GmbH
|
Germany | |
▇▇▇▇▇▇▇▇ Center Holding Corporation
|
Delaware | |
▇▇▇▇▇▇▇▇/Center Arms Company, Inc.
|
New Hampshire | |
Bear Lake Holdings, Inc.
|
Delaware |
26