TOMOTHERAPY INCORPORATED (a Wisconsin corporation) Shares of Common Stock PURCHASE AGREEMENT
TOMOTHERAPY INCORPORATED.
(a Wisconsin corporation)
Shares of Common Stock
(Par Value $0.01 Per Share)
, 2007
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
As Representative of the several Underwriters
4 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
As Representative of the several Underwriters
4 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
TomoTherapy Incorporated, a Wisconsin corporation (the “Company”) and the persons listed in
Schedule B hereto (the “Selling Shareholders”), confirm their respective agreements with ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“▇▇▇▇▇▇▇ ▇▇▇▇▇”) and each of the
other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall
also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom
▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as representative (in such capacity, the “Representative”), with respect to
(i) the sale the Selling Shareholders, acting severally and not jointly, and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of shares of Common
Stock, par value $0.01 per share, of the Company (“Common Stock”) set forth in Schedules A and B
hereto and (ii) the grant by the Selling Shareholders to the Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any part of additional
shares of Common Stock to cover overallotments, if any. The aforesaid shares of Common Stock
(the “Initial Securities”) to be purchased by the Underwriters and all or any part of the shares
of Common Stock subject to the option described in Section 2(b) hereof (the “Option Securities”)
are hereinafter called, collectively, the “Securities.”
The Company and the Selling Shareholders understand that the Underwriters propose to make a
public offering of the Securities as soon as the Representative deems advisable after this
Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1
(No. 333- ), including the related preliminary prospectus or
prospectuses, covering the registration of the Securities under the Securities Act of 1933, as
amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company
will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of
the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and
paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. The information included in
such prospectus that was omitted from such registration statement at the time it became effective
but that is deemed to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as “Rule 430A Information.” Each prospectus
used before such registration statement became effective, and any prospectus that omitted the Rule
430A Information that was used after such
effectiveness and prior to the execution and delivery of
this Agreement, is herein called a “preliminary
prospectus.” Such registration statement, including the amendments thereto, the exhibits and
any schedules thereto, at the time it became effective, and including the Rule 430A Information, is
herein called the “Registration Statement.” Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the “Rule 462(b) Registration
Statement,” and after such filing the term “Registration Statement” shall include the Rule 462(b)
Registration Statement. The final prospectus in the form first furnished to the Underwriters for
use in connection with the offering of the Securities is herein called the “Prospectus.” For
purposes of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed
to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system (“▇▇▇▇▇”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the “1934 Act”) which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and warrants to
each Underwriter as of the date hereof, the Applicable Time referred to in Section 1(a)(i) hereof,
as of the Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto
has become effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and at the Closing Time
(and, if any Option Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not and will not contain an 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. Neither the Prospectus nor any amendments or supplements
thereto (including any prospectus wrapper), at the time the Prospectus or any such amendment
or supplement was issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a
2
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As of the Applicable Time (as defined below), neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time and the
Statutory Prospectus (as defined below) as of the Applicable Time and the information
included on Schedule C hereto, all considered together (collectively, the “General
Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus,
when considered together with the General Disclosure Package, included any untrue statement
of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means am/pm (Eastern time) on , 2007 or such other time as agreed
by the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be
filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, in each case 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).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being specified in Schedule E hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
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 Securities or until any earlier
date that the issuer notified or notifies ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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, and
any preliminary or other prospectus deemed to be a part thereof that has not been superseded
or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein.
Each preliminary prospectus (including the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto) complied when so filed in
all
3
material respects with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
At the time of filing the Registration Statement, any 462(b) Registration Statement and
any post-effective amendments thereto, at the earliest time thereafter that the Company or
another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of
the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and
is not an “ineligible issuer,” as defined in Rule 405 of the 1933 Act Regulations.
(ii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are an
independent registered public accounting firm as required by the 1933 Act and the 1933 Act
Regulations.
(iii) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(iv) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there
have been no transactions entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital
stock.
(v) Good Standing of the Company. The Company has been duly organized and is
validly existing as a corporation under the laws of the State of Wisconsin and has corporate
power and authority to own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(vi) Good Standing of Subsidiaries. Each “significant subsidiary” of the
Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a “Subsidiary” and,
collectively, the “Subsidiaries”) has been duly organized and is validly existing as a
corporation under the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and
4
operate its properties and to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and outstanding capital
stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are the subsidiaries listed on Exhibit 21 to the Registration
Statement except for such subsidiaries which, if considered in the aggregate as a single
subsidiary, would not constitute a “significant subsidiary” (as such term is defined in Rule
1-02 of Regulation S-X).
(vii) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled “Actual” under the
caption “Capitalization” (except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options referred to in
the Prospectus). The shares of issued and outstanding capital stock, including the
Securities to be purchased by the Underwriters from the Selling Shareholders, have been duly
authorized and validly issued and are fully paid and non-assessable; none of the outstanding shares of capital stock, including the Securities to be purchased by the Underwriters from
the Selling Shareholders, was issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) Authorization and Description of Securities. The Common Stock conforms to
all statements relating thereto contained in the Prospectus and such description conforms to
the rights set forth in the instruments defining the same; no holder of the Securities will
be subject to personal liability by reason of being such a holder; and the issuance of the
Securities is not subject to the preemptive or other similar rights of any securityholder of
the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults
that would not result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions contemplated herein
and in the Registration Statement (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in the Prospectus under the
caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have
been duly authorized by all necessary corporate action and do not and will not, whether with
or without the giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of the Company
or any subsidiary pursuant to, the Agreements and Instruments
5
(except for such conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets, properties or
operations. As used herein, a “Repayment Event” means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or any person acting on
such holder’s behalf) the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(xi) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the employees of any
of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors,
which, in either case, would result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might result in a Material Adverse
Effect, or which might materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in this Agreement or the performance by
the Company of its obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business, could not
result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement or the Prospectus or to be filed as
exhibits thereto which have not been so described and filed as required.
(xiv) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this
Agreement except such as have been already obtained or as may be required under
the 1933 Act or the 1933 Act Regulations or state securities laws.
(xv) Absence of Manipulation. Neither the Company nor any affiliate of the Company has taken, nor will the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xvi) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by them, except
where the failure so to possess
6
would not, singly or in the aggregate, result in a Material Adverse Effect; the Company
and its subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect would not, singly
or in the aggregate, result in a Material Adverse Effect; and neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xvii) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its subsidiaries and good
title to all other properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its subsidiaries; and all of
the leases and subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its subsidiaries holds
properties described in the Prospectus, are in full force and effect, and neither the
Company nor any subsidiary has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the rights of the Company
or such subsidiary to the continued possession of the leased or subleased premises under any
such lease or sublease.
(xviii) Investment Company Act. The Company is not required, and upon the
issuance and sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be required, to register as an
“investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xix) ERISA. Each “plan” (as defined in Section 3(3) of the United States
Employee Retirement Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ERISA”)) in which employees of the Company and/or its
subsidiaries are eligible to participate is in compliance in all material respects with the
presently applicable provisions of ERISA; no “reportable event” (within the meaning of
Section 4043 of ERISA) has occurred with respect to any “pension plan” (as defined in
Section 3(2) of ERISA) for which the Company or such subsidiary would have any material
liability; none of the Company or any of its subsidiaries has incurred, and does not expect
to incur, material liability under (1) Title IV of ERISA with respect to the termination of,
or withdrawal from, any pension plan or (2) Section 412 or 4971 of the United States
Internal Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the “Code”), or Section 302 of ERISA, and no “accumulated
funding deficiency,” as defined in Section 412 of the Code or Section 302 of ERISA, has
occurred with respect to any pension plan for which the Company or any of its subsidiaries
would have any liability; and each pension plan maintained by the Company or any of its
subsidiaries that is intended to be qualified under Section 401(a) of the Code is so
qualified and nothing has occurred, whether by action or failure to act, that would cause
the loss of such qualification.
(xx) Environmental Laws. Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A)
neither
7
the Company nor any of its subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human health
(including employee health and safety), the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing materials, radioactive
materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have
all permits, authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D) to the knowledge of
the Company, there are no events or circumstances that would reasonably be expected to (1)
form the basis of an order for clean-up or remediation, (2) form the basis of an action,
suit or proceeding by any private party or governmental body or agency, or (3) give rise to
any liability, in each case against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(xxi) Registration Rights. There are no persons with registration rights or
other similar rights (1) to have any securities registered pursuant to the Registration
Statement, except for such registration rights or other similar rights as have been validly
waived, or (2) to have any securities otherwise registered by the Company under the 1933
Act, except as disclosed in the Registration Statement.
(xxii) Accounting Controls and Disclosure Controls. The Company
and each of its subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in accordance with
management’s general or specific authorization; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only in accordance with
management’s general or specific authorization; and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as described in the Prospectus, since the
end of the Company’s most recent audited fiscal year, there has been (1) no material
weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (2) no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting. The Company and its consolidated subsidiaries
employ disclosure controls and procedures that are designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the
1934 Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms, and is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and principal financial
officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xxiii) Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no
failure on the part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all
8
rules and regulations promulgated in connection therewith, including Section 402
related to loans and Sections 302 and 906 related to certifications.
(xxiv) Payment of Taxes. All returns, statements, forms and reports for taxes
(the “Returns”) required by law to be filed by or with respect to the income, properties or
operations of the Company and its subsidiaries have been timely filed with the appropriate
taxing authorities. The Returns accurately reflect in all material respects all liability
for taxes of the Company and its subsidiaries for the periods covered thereby. All taxes
shown by such Returns or otherwise assessed have been paid, except assessments against which
appeals have been or will be promptly taken and as to which adequate reserves have been
established in accordance with GAAP. The United States federal income tax returns of the
Company through the fiscal year ended December 31, 2006 have been settled and no assessment
in connection therewith has been made against the Company. There is no action, suit,
proceeding, investigation, audit, or claim now pending or, to the best knowledge of the
Company, threatened by any authority regarding any taxes relating to the Company and its
Subsidiaries. The Company has not entered into an agreement or waiver or been requested to
enter into an agreement or waiver extending any statute of limitations relating to the
payment or collection of taxes of the Company, or is aware of any circumstances that would
cause the taxable years or other taxable periods of the Company not to be subject to the
normally applicable statute of limitations.
(xxv) Insurance. The Company and its subsidiaries carry or are entitled to the
benefits of insurance, with financially sound and reputable insurers, in such amounts and
covering such risks as is (1) generally maintained by companies of established repute
engaged in the same or similar business, and all such insurance is in full force and effect,
and (2) required pursuant to the terms and conditions of the permits and other regulatory
approvals received by the Company or its subsidiaries in connection with the marketing or
sale of its products. The Company has no reason to believe that it or any subsidiary will
not be able (A) to renew its existing insurance coverage as and when such policies expire or
(B) to obtain comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted, in the case of both subclauses (A) and
(B), at a cost that would not result in a Material Adverse Change. Neither of the Company
nor any subsidiary has been denied any insurance coverage which it has sought or for which
it has applied.
(xxvi) Statistical and Market-Related Data. Any statistical and market-related
data included in the Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and, to the extent required,
the Company has obtained the written consent to the use of such data from such sources.
(xxvii) Intellectual Property. To the knowledge of the Company, except as
otherwise disclosed in the Registration Statement and the Prospectus, the Company and its
subsidiaries own, possess or can acquire on reasonable terms sufficient trademarks, trade
names, patent rights, copyrights, domain names, licenses, approvals, trade secrets,
inventions, technology, know-how and other intellectual property and similar rights,
including registrations and applications for registration thereof as are necessary or
material to conduct the business as now conducted or proposed in the Registration Statement
and the Prospectus to be conducted by them, or presently employed by them (collectively,
“Intellectual Property Rights”). The Company does not expect the expiration of any of the
Intellectual Property Rights owned by or licensed to the Company and its subsidiaries to
have, individually or in the aggregate, a Material Adverse Effect. There is no pending or,
to the knowledge of the Company, threatened action, suit, proceeding or claim by others
challenging the Company’s or any of its subsidiaries’ rights in or to any of the
Intellectual Property Rights owned by or licensed to the Company and its subsidiaries. To
the knowledge of
9
the Company (x) there is no material infringement, misappropriation or other violation
by third parties of any of the Intellectual Property Rights owned by or licensed to the
Company or its subsidiaries, and (y) the Intellectual Property Rights owned by or licensed
to the Company or its subsidiaries are valid, enforceable and are being duly maintained.
There is no pending or, to the knowledge of the Company, threatened action, suit, proceeding
or claim by others challenging the validity, enforceability or scope of any of the
Intellectual Property Rights owned by or licensed to the Company and its subsidiaries. To
the knowledge of the Company, the operation of the business as now conducted or proposed in
the Prospectus to be conducted does not conflict with, infringe, misappropriate or otherwise
violate the proprietary rights of any third party. There is no pending or, to the knowledge
of the Company, threatened action, suit, proceeding or claim by others that the Company or
any of its subsidiaries infringes, misappropriates or otherwise violates or conflicts with
the proprietary rights of others, and neither the Company nor any of its subsidiaries have
received any written notice of any such claim. To the knowledge of the Company, no officer,
director or employee of the Company or any of its subsidiaries is in or has ever been in
violation of any term of any employment contract, patent disclosure agreement, invention
assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure
agreement or any restrictive covenant to or with a former employer, where the basis of such
violation relates to such employee’s employment with the Company or any of its subsidiaries
or actions undertaken by the employee while employed with the Company or its subsidiaries,
except for violations that would not, individually or in the aggregate, have a Material
Adverse Effect. None of the Intellectual Property Rights used by the Company or its
subsidiaries in their business as now conducted, or proposed in the Prospectus to be
conducted, have been obtained or is being used by the Company or any of its subsidiaries in
violation of any contractual obligation binding on the Company, such subsidiary, or any of
their officers, directors or employees or otherwise in violation of the rights of any
persons.
(xxviii) Patent Applications. The Company has duly and properly filed or caused
to be filed with the U. S. Patent and Trademark Office (the “PTO”) or foreign and
international patent authorities applications for all patents and all patent applications
disclosed in the Prospectus as owned by the Company (the “Company Patent Applications”). To
the knowledge of the Company, the Company and its attorneys and agents have complied with
the PTO’s duty of candor and disclosure for the Company Patent Applications and have made no
material misrepresentation during prosecution of the Company Patent Applications. To
knowledge of the Company, the Company Patent Applications disclose patentable subject
matter, and the Company has not been notified of any inventorship challenges nor has any
interference been declared nor is any material fact known by the Company that would preclude
the issuance of patents with respect to the Company Patent Applications or would render such
patents, if issued, invalid or unenforceable. To the knowledge of the Company, all Company
Patent Applications were and/or are being duly prosecuted.
(xxix) Intellectual Property License. The Company has not breached and is not
currently in breach of any provision of the License Agreement, dated February 22, 1999 (the
“License”), by and between the Company and Wisconsin Alumni Research Foundation (“▇▇▇▇”),
except for breaches that would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect, neither ▇▇▇▇ nor any third party has alleged any
such breach, and the Company is unaware of any facts that would form a reasonable basis for
such a claim. To the knowledge of the Company, ▇▇▇▇ has not breached nor is currently in
breach of any provision of the License, except for breaches that would not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect. The
License is in full force and effect and constitutes a valid and binding agreement between
the parties thereto, enforceable in accordance with its terms, and there has not occurred
any breach or default under any the License or any
10
event that with the giving of notice or lapse of time would constitute a breach or
default thereunder, except for breaches or defaults that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. Except as would
not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, the Company has not been nor currently is involved in any disputes regarding
the License. To the knowledge of the Company, all Intellectual Property Rights licensed to
the Company pursuant to the License are valid, enforceable and being duly maintained. To
knowledge of the Company, all applications for registration of Intellectual Property Rights
that are licensed to the Company pursuant to the Licenses are being duly prosecuted.
(xxx) Regulatory Authorities. Except as described in the Registration Statement
and the Prospectus, the Company and its subsidiaries: (i) are and at all times has been in
compliance in all material respects with all statutes, rules, regulations, ordinances,
orders, decrees and guidance applicable to the ownership, testing, development, manufacture,
packaging, processing, recordkeeping, use, distribution, marketing, labeling, promotion,
sale, offer for sale, storage, import, export or disposal of any product manufactured or
distributed by the Company (“Applicable Laws”); (ii) have not received any FDA Form 483,
notice of adverse finding, warning letter, untitled letter or other correspondence or notice
from the U.S. Food and Drug Administration (the “FDA”), Nuclear Regulatory Commission or any
other federal, state, local or foreign governmental authority having authority over the
Company or its subsidiaries (“Governmental Authority”) alleging or asserting noncompliance
with any Applicable Laws or any licenses, certificates, approvals, clearances,
authorizations, permits and supplements or amendments thereto required by any such
Applicable Laws (“Authorizations”); (iii) possess all Authorizations and such Authorizations
are valid and in full force and effect and are not in violation of any term of any such
Authorizations except for such violations as would not have a Material Adverse Effect; (iv)
have not received notice of any pending or threatened claim, suit, proceeding, hearing,
enforcement, audit, investigation, arbitration or other action from any Governmental
Authority or third party alleging that any operation or activity by the Company or its
subsidiaries is in violation of any Applicable Laws or Authorizations and the Company has no
knowledge or reason to believe that any such Governmental Authority or third party is
considering any such claim, suit, proceeding, hearing, enforcement, audit, investigation,
arbitration or other action; (v) have not received notice that any Governmental Authority
has taken, is taking or intends to take action to limit, suspend, modify or revoke any
Authorizations and has no knowledge or reason to believe that any such Governmental
Authority is considering such action; (vi) have filed, obtained, maintained or submitted all
reports, documents, forms, notices, applications, records, claims, submissions and
supplements or amendments as required by any Applicable Laws or Authorizations and that all
such reports, documents, forms, notices, applications, records, claims, submissions and
supplements or amendments were complete and correct in all material respects on the date
filed (or were corrected or supplemented by a subsequent submission); and (vii) have not,
either voluntarily or involuntarily, initiated, conducted, or issued or caused to be
initiated, conducted or issued, any Class I or Class II recall, market withdrawal or
replacement, post sale warning or other notice or action relating to an alleged lack of
safety or efficacy of any product, any alleged product defect, or violation on any
Applicable Laws or Authorizations; the Company is not aware of any facts that would
reasonably be expected to cause the Company or its subsidiaries to initiate any such notice
or action; and the Company does not have any knowledge or reason to believe that any
Governmental Authority or third party intends to initiate any such notice or action.
(xxxi) Medicare and Medicaid. Without limiting the generality of clause (xvi)
above and except as described in the Registration Statement and the Prospectus and except as
would not, individually or in the aggregate, result in a Material Adverse Effect, neither
the Company nor any
11
of its subsidiaries, nor the Company’s or any subsidiary’s business operations is in
violation of any Health Care Laws. For purposes hereof, “Health Care Laws” means (i) all
federal and state fraud and abuse laws, including, but not limited to, the federal
Anti-Kickback Statute (42 U.S.C. §1320a-7(b)), the ▇▇▇▇▇ Law (42 U.S.C. §1395nn and
§1395(q)), the civil False Claims Act (31 ▇.▇.▇. §▇▇▇▇ et seq.), Sections 1320a-7 and
1320a-7a of Title 42 of the United States Code and the regulations promulgated pursuant to
such statutes; (ii) the Health Insurance Portability and Accountability Act of 1996 (Pub. L.
No. 104-191) and the regulations promulgated thereunder, (iii) Medicare (Title XVIII of the
Social Security Act) and the regulations promulgated thereunder; (iv) Medicaid (Title XIX of
the Social Security Act) and the regulations promulgated thereunder; (v) the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003 (Pub. L. No. 108-173) and the
regulations promulgated thereunder; (vi) the Medicare Benefit Policy Manual, (vii) quality,
safety and accreditation standards and requirements of all applicable state laws or
regulatory bodies; and (viii) any and all other applicable health care laws, regulations,
manual provisions, policies and administrative guidance, each of (i) through (viii) as may
be amended from time to time.
(xxxii) FDA, Medicare, Medicaid and Similar Proceedings. To the Company’s
knowledge, except as disclosed in the Registration Statement, there are no rulemaking or
similar proceedings before the FDA or The Centers for Medicare and Medicare Services or any
similar entity in any other jurisdiction which affects or involves, or will affect or
involve, the Company or any of the processes or products disclosed in the Registration
Statement or the Prospectus which the Company has developed, is developing or proposes to
develop or uses or proposes to use which, if the subject of an action unfavorable to the
Company, would reasonably be expected to have a Material Adverse Effect upon the Company.
(xxxiii) Clinical and Preclinical Tests. Each of the human clinical trials and
other preclinical tests conducted by the Company or its subsidiaries, or in which the
Company or its subsidiaries has participated, and such studies and tests conducted on
behalf of the Company or its subsidiaries, were and, if still ongoing, are being, conducted
in all material respects (i) in accordance with experimental protocols, procedures and
controls generally used by qualified experts in the preclinical or clinical study of
products comparable to those developed by the Company, and (ii) in compliance with all
applicable Good Laboratory and Good Clinical Practices; the Company has no knowledge of any
other trials, studies or tests, the results of which reasonably call into question the
description of the Company’s business contained in the Registration Statement and the
Prospectus; neither the Company nor any of its subsidiaries has received any notices or
correspondence from the FDA or any other governmental agency requiring the termination,
suspension or modification (other than such suspensions as have been lifted or such
modifications as have been complied with as disclosed in the Registration Statement and the
Prospectus) of preclinical tests or clinical trials conducted by or on behalf of the Company
or its subsidiaries or in which the Company or its subsidiaries has participated.
(xxxiv) Foreign Corrupt Practices Act. Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company or any of its subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the “FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA and (A)
the
12
Company and its subsidiaries have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure continued
compliance therewith, and (B) the Company has contractual obligations or policies in place
with each of its affiliates designed to ensure continued compliance, and obligating them to
comply, with the FCPA.
(xxxv) Money Laundering Laws. The operations of the Company are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to
the best knowledge of the Company, threatened.
(xxxvi) OFAC. Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee, affiliate or person acting on behalf of the Company is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department (“OFAC”); and the Company 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 or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(b) Representations and Warranties by the Selling Shareholders. Each Selling Shareholder,
severally and not jointly, represents and warrants to each Underwriter as of the date hereof, as of
the Closing Time, and, if the Selling Shareholder is selling Option Securities on a Date of
Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as follows:
(i) Accurate Disclosure. (A) If such Selling Shareholder is a director or
executive officer (including such executive officers identified on Schedule F hereto) of the
Company (x) to the best knowledge of such Selling Shareholder, the representations and
warranties of the Company contained in Section 1(a) hereof are true and correct, (y) such
Selling Shareholder has reviewed and is familiar with the Registration Statement, the
General Disclosure Package and the Prospectus and none of the General Disclosure Package,
the Prospectus or any amendments or supplements thereto (including any prospectus wrapper)
includes any untrue statement of a material fact or omits 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, and (z) such Selling Shareholder is not prompted to sell the
Securities to be sold by such Selling Shareholder hereunder by any material information
concerning the Company or any subsidiary of the Company which is not set forth in the
General Disclosure Package or the Prospectus.
(B) If such Selling Shareholder is not a director or executive officer of the Company
(x) such Selling Shareholder has reviewed and is familiar with the Registration Statement,
the General Disclosure Package and the Prospectus and none of the General Disclosure
Package, the Prospectus or any amendments or supplements thereto includes any untrue
statement of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the representation in this paragraph is limited to statements or
omissions made in reliance upon and in conformity with information relating to such Selling
Shareholder furnished to the Company in writing by such Selling Shareholder expressly for
use in the Registration Statement, General
13
Disclosure Package or Prospectus or any amendments or supplements thereto; and (z) such
Selling Shareholder is not prompted to sell the Securities to be sold by such Selling
Shareholder hereunder by any material information concerning the Company or any subsidiary
of the Company which is not set forth in the General Disclosure Package or the Prospectus.
(ii) Authorization of this Agreement. This Agreement has been duly authorized
(if the Selling Shareholder is not a natural person), and duly executed and delivered by or
on behalf of such Selling Shareholder.
(iii) Authorization of Power of Attorney and Custody Agreement. The Power of
Attorney (the “Power of Attorney”) and Custody Agreement (the “Custody Agreement”), in the
forms heretofore furnished to the Representative, have each been duly authorized, executed
and delivered by such Selling Shareholder and are each the valid and binding agreement of
such Selling Shareholder.
(iv) Noncontravention. The execution and delivery of this Agreement, the Power
of Attorney and the Custody Agreement and the sale and delivery of the Securities to be sold
by such Selling Shareholder and the consummation of the transactions contemplated herein and
compliance by such Selling Shareholder with its obligations hereunder do not and will not,
whether with or without the giving of notice or passage of time or both (A) conflict with or
constitute a breach of, or default under, or result in the creation or imposition of any
tax, lien, charge or encumbrance upon any property or assets of such Selling Shareholder,
pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder may be bound, or to which any of the property or
assets of such Selling Shareholder is subject, (B) result in the creation or imposition of
any tax, lien, charge or encumbrance upon the Securities to be sold by such Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder may be bound, or to which any of
the property or assets of such Selling Shareholder is subject, or (C) result in any
violation of the provisions of the charter or by-laws or other organizational instrument of
such Selling Shareholder, if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of its
properties, except with respect to (A) as would not adversely affect the performance by the
Selling Shareholder of its obligations hereunder.
(v) Certificates Suitable for Transfer. The Securities to be sold by such
Selling Shareholder pursuant to this Agreement are certificated securities in registered
form and are not held in any securities account or by or through any securities intermediary
within the meaning of the Uniform Commercial Code as in effect in the State of New York (the
“UCC”); provided, however, that with respect to Securities that are to be delivered on the
Closing Date or any Date of Delivery pursuant to the exercise of options (the “Future
Securities”), the Selling Shareholder makes such representation only as of the Closing Date
or such Date of Delivery. Certificates for all of the Securities to be sold by such Selling
Shareholder pursuant to this Agreement (except the Future Shares), in suitable form for
transfer by delivery or accompanied by duly executed instruments of transfer or assignment
in blank with signatures guaranteed, have been placed in custody with ▇▇▇▇▇ Fargo Bank, N.A.
(the “Custodian”) with irrevocable conditional instructions to deliver such Securities to
the Underwriters pursuant to this Agreement; provided, however that with respect to Future
Securities, the Selling Shareholder makes such representation only as of the Closing Date of
such Date of Delivery. With respect to the Future Securities, if any, being
14
sold hereunder by such Selling Shareholder, a duly executed, irrevocable notice of
exercise has been placed in custody with the Custodian by such Selling Shareholder, and the
Future Securities when issued upon exercise, will be subject to the Custody Agreement.
(vi) Valid Title. Such Selling Shareholder has in the case of the Securities
(other than Future Securities) to be sold by such Selling Shareholder, and will have, at the
Closing Time and Date of Delivery, as applicable, in the case of the Securities to be sold
by such Selling Shareholder, valid title to such Securities free and clear of all security
interests, claims, liens, equities or other encumbrances and the legal right and power, and
all authorization and approval required by law, to enter into this Agreement, the Power of
Attorney and Custody Agreement and to sell, transfer and deliver the Securities to be sold
by such Selling Shareholder.
(vii) Delivery of Securities. Upon the Underwriters’ acquiring possession of
the Securities to be sold by such Selling Shareholder and paying the purchase price therefor
pursuant to this Agreement, the Underwriters (assuming that no such Underwriter has notice
of any “adverse claim,” within the meaning of Section 8-105 of the New York Uniform
Commercial Code, to such Securities) will acquire their respective interests in such
Securities (including, without limitation, all rights that such Selling Shareholder had or
has the power to transfer in such Securities) free and clear of any adverse claim within the
meaning of Section 8-102 of the New York Uniform Commercial Code.
(viii) Absence of Manipulation. Such Selling Shareholder has not taken, and
will not take, directly or indirectly, any action which is designed to or which has
constituted or would reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of
the Securities.
(ix) Absence of Further Requirements. No filing with, or consent, approval,
authorization, order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the performance by
each Selling Shareholder of its obligations hereunder or in the Power of Attorney or the
Custody Agreement, or in connection with the sale and delivery of the Securities hereunder
or the consummation of the transactions contemplated by this Agreement, except such as may
have previously been made or obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws.
(x) No Association with NASD. Except as described in the completed NASD
Questionnaire provided by such Selling Shareholder to the Company on or before
, 2007, neither such Selling Shareholder nor any of its affiliates directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or is under
common control with, or is a person associated with (within the meaning of Article I (dd) of
the By-laws of the National Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
(c) Officer’s Certificates. Any certificate signed by any officer of the Company or any of
its subsidiaries delivered to the Representative or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company to each Underwriter as to the matters covered thereby;
and any certificate signed by or on behalf of the Selling Shareholders as such and delivered to the
Representative or to counsel for the Underwriters pursuant to the terms of this Agreement shall be
deemed a representation and warranty by such Selling Shareholder to the Underwriters as to the
matters covered thereby.
15
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, each Selling Shareholder, severally and
not jointly, agrees to sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from each Selling Shareholder, at the price per share
set forth in Schedule C, that proportion of the number of Initial Securities set forth in Schedule
B opposite the name of such Selling Shareholder, which the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter, plus any additional number of Initial
Securities which such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in each case, to such
adjustments among the Underwriters as the Representative in its sole discretion shall make to
eliminate any sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Selling Shareholders,
acting severally and not jointly, hereby grant an option to the Underwriters, severally and not
jointly, to purchase up to an additional shares of Common Stock, as set
forth in Schedule B, at the price per share set forth in Schedule C, less an amount per share equal
to any dividends or distributions declared by the Company and payable on the Initial Securities but
not payable on the Option Securities. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the purpose of covering
overallotments which may be made in connection with the offering and distribution of the Initial
Securities upon notice by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Selling Shareholder setting forth the number of
Option Securities as to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time and date of delivery (a
“Date of Delivery”) shall be determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the Option Securities,
each of the Underwriters, acting severally and not jointly, will purchase that proportion of the
total number of Option Securities then being purchased which the number of Initial Securities set
forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its discretion shall make
to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of certificates for, the Initial
Securities shall be made at the offices of White & Case LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the Representative and the
Company and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such other time not later
than ten business days after such date as shall be agreed upon by the Representative and the
Company (such time and date of payment and delivery being herein called “Closing Time”).
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representative and the Company and the Selling Shareholders, on each Date of Delivery
as specified in the notice from the Representative to the Company and the Selling Shareholders.
Payment shall be made to the Selling Shareholders by wire transfer of immediately available
funds to bank account(s) designated by the Custodian pursuant to each Selling Shareholder’s Power
of Attorney and Custody Agreement against delivery to the Representative for the respective
accounts of the
16
Underwriters of certificates for the Securities to be purchased by them. It is understood
that each Underwriter has authorized the Representative(s), for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Initial Securities and the Option
Securities, if any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names as the
Representative may request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial Securities and the
Option Securities, if any, will be made available for examination and packaging by the
Representative in The City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Selling Shareholders. The Company
covenants with each Underwriter as set forth in subsections (a) through (l) below, and each of the
Selling Shareholders covenants with each Underwriter as set forth in subsection (l) below:
(a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430A, and will notify the Representative
immediately, and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes or of any examination pursuant to Section
8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the
subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the
Securities. The Company will effect the filings required under Rule 424(b), in the manner and
within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take
such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) Filing of Amendments and Exchange Act Documents. The Company will give the Representative
notice of its intention to file or prepare any amendment to the Registration Statement (including
any filing under Rule 462(b)) or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the Prospectus, and
will furnish the Representative with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use any such document to
which the Representative or counsel for the Underwriters shall object. The Company has given the
Representative notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within
48 hours prior to the Applicable Time; the Company will give the Representative notice of its
intention to make any such filing from the Applicable Time to the Closing Time and will furnish the
Representative with copies of any
17
such documents a reasonable amount of time prior to such proposed filing, as the case may be,
and will not file or use any such document to which the Representative or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representative and counsel for the Underwriters, without charge, facsimile signed copies of the
Registration Statement as originally filed and of each amendment thereto (including exhibits filed
therewith) and facsimile signed copies of all consents and certificates of experts, and will also
deliver to the Representative(s), without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge,
as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and
the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required
by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement relating to the Securities or 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 the light of the circumstances, prevailing at
that subsequent time, not misleading, the Company will promptly notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ and will
promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
(f) Blue Sky Qualifications. The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the Representative may designate
and to maintain such qualifications in effect for a period of not less than one year from the later
of the effective date of the
18
Registration Statement and any Rule 462(b) Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
(g) Earnings Statement. The Company will timely file such reports pursuant to the Securities
Exchange Act of 1934 (the “1934 Act”) as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes of, and to provide to
the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Listing. The Company has complied with the requirements of the Nasdaq Global Market with
respect to the listing of the Securities and will use its best efforts to effect and maintain the
quotation of the Securities on the Nasdaq Global Market.
(i) Restriction on Sale of Securities. During a period of 90 days from the date of the
Prospectus, the Company will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) directly
or indirectly, 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 or
otherwise transfer or dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act
with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B)
any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the Prospectus, or (C)
any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing
employee benefit plans of the Company referred to in the Prospectus. Notwithstanding the
foregoing, if (1) during the last 17 days of the 90-day restricted period the Company issues an
earnings release or material news or a material event relating to the Company occurs or (2) prior
to the expiration of the 90-day restricted period, the Company announces that it will release
earnings results or becomes aware that material news or a material event will occur during the
16-day period beginning on the last day of the 90-day restricted period, the restrictions imposed
in this clause (j) shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the occurrence of the material news or material event.
(j) Reporting Requirements. The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(k) Issuance of Future Securities. The Company will cause the registrar and transfer agent
for its Common Stock to issue immediately prior to the Closing Time and any Date of Delivery any
Future Securities upon presentment of a notice of exercise (accompanied by a cashier’s check for an
amount that is not less than the exercise price in respect of such Future Securities) duly executed
by a Selling Shareholder holding options to purchase such Future Securities.
(l) Issuer Free Writing Prospectuses. Each of the Company and each Selling Shareholder
represents and agrees that, unless it obtains the prior consent of the Representative, and each
Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the
Representative, it has not made and will not make any offer relating to the Securities that would
constitute an “issuer free
19
writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission or, in the
case of each Selling Shareholder, whether or not required to be filed with the Commission. Any
such free writing prospectus consented to by the Company and the Representative is hereinafter
referred to as a “Permitted Free Writing Prospectus.” Each of the Company and each Selling
Shareholder represents that it has treated or agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and
will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely filing with the Commission where required, legending and record keeping.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses incident to the
performance of its and the Selling Shareholders’ obligations under this Agreement, including (i)
the preparation, printing and filing of the Registration Statement (including financial statements
and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and
delivery to the Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the
fees and disbursements of the Company’s counsel, accountants and other advisors and the fees and
disbursements of one counsel for all of the Selling Shareholders; (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any “Blue Sky Survey” and any
supplement thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any
amendments or supplements thereto and any costs associated with electronic delivery of any of the
foregoing by the Underwriters to investors, (vii) the fees and expenses of any transfer agent or
registrar for the Securities, (viii) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of the Securities,
including without limitation, 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, travel and lodging expenses of the representatives and officers of the Company and
any such consultants, and the cost of aircraft and other transportation chartered in connection
with the road show; provided, however, that the Underwriters agree to pay 50% of the cost of any
such aircraft chartered; (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by the National
Association of Securities Dealers, Inc. (the “NASD”) of the terms of the sale of the Securities;
and (x) the fees and expenses incurred in connection with the inclusion of the Securities in the
Nasdaq Global Market.
(b) Expenses of the Selling Shareholders. Each Selling Shareholder, severally and not
jointly, will pay all expenses incident to the performance of its respective obligations under, and
the consummation of the transactions contemplated by this Agreement, including (i) any stamp
duties, capital duties and stock transfer taxes, if any, payable upon the sale of the Securities by
such Selling Shareholder to the Underwriters, and their transfer between the Underwriters pursuant
to an agreement between such Underwriters, and (ii) except as provided in subsection (iv) of
Section 4(a), the fees and disbursements of such Selling Shareholder’s counsel and other advisors.
(c) Termination of Agreement. If this Agreement is terminated by the Representative in
accordance with the provisions of Section 5, Section 9(a)(i) or Section 11 hereof, the Company
shall
20
reimburse the Underwriters for all of their out-of-pocket accountable expenses actually
incurred, including the reasonable fees and disbursements of counsel for the Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall not affect any agreement
that the Company and the Selling Shareholders may make for the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company and the Selling Shareholders contained in Section 1 hereof or in certificates of any
officer of the Company or any subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement, including any Rule
462(b) Registration Statement, shall have become effective. At Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been issued under the 1933
Act or proceedings therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in the manner and within the time frame required by Rule
424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements of Rule 430A.
(b) Opinion of Counsel for Company. At Closing Time, the Representative shall have received
the favorable opinions, dated as of Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters to the effect set forth in
Exhibits A1 and A2 hereto and to such further effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of General Counsel for Company. At Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇ ▇▇▇▇, Esq., Vice President and
General Counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit B hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(d) Opinion of Counsel for the Selling Shareholders. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
counsel for the Selling Shareholders, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit C hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(e) Opinion of General Counsel for the Principal Selling Shareholders. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing Time, of the
respective General Counsels of each of the Principal Selling Shareholders designated on Schedule B
hereto, in form and substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the effect set forth in
Exhibit D hereto and to such further effect as counsel to the Underwriters may reasonably request.
(f) Opinion of Counsel for Underwriters. At Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of White & Case LLP, counsel for the
21
Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters in form and substance satisfactory to the Underwriters.
(g) Officers’ Certificate. At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Prospectus or the General
Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and the Representative
shall have received a certificate of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or, to their knowledge, contemplated by the
Commission.
(h) Certificate of Selling Shareholders. At Closing Time, the Representative shall have
received a certificate of an Attorney-in-Fact on behalf of each Selling Shareholder, dated as of
Closing Time, to the effect that (i) the representations and warranties of each Selling Shareholder
contained in Section 1(b) hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Time and (ii) each Selling Shareholder has
complied in all material respects with all agreements and all conditions on its part to be
performed under this Agreement at or prior to Closing Time.
(i) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the
Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter dated such date, in form and
substance satisfactory to the Representative, together with signed or reproduced copies of such
letter for each of the other Underwriters 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 and the
Prospectus.
(j) Bring-down Comfort Letter. At Closing Time, the Representative shall have received from
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (i) of this Section, except that the
specified date referred to shall be a date not more than three business days prior to Closing Time.
(k) Approval of Listing. At Closing Time, the Securities shall have been approved for
inclusion in the Nasdaq Global Market, subject only to official notice of issuance.
(l) No Objection. The NASD has confirmed that it has not raised any objection with respect to
the fairness and reasonableness of the underwriting terms and arrangements.
(m) Lock-up Agreements. At the date of this Agreement, the Representative shall have received
an agreement substantially in the form of Exhibit E hereto signed by the persons listed on Schedule
D.
(n) Conditions to Purchase of Option Securities. In the event that the Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company and the Selling Shareholders
contained herein and the statements in any certificates furnished by the Company, any subsidiary of
the Company and the Selling
22
Shareholders hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representative shall have received:
(i) Officers’ Certificate. A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and of the chief financial or chief accounting
officer of the Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(g) hereof remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholders. A certificate, dated such Date of
Delivery, of an Attorney-in-Fact on behalf of each Selling Shareholder confirming that the
certificate delivered at Closing Time pursuant to Section 5(h) remains true and correct as
of such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinions of ▇▇▇▇▇▇▇ ▇▇▇▇ &
Freidrich, LLP, counsel for the Company, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the opinions required
by Section 5(b) hereof.
(iv) Opinion of General Counsel for Company. The favorable opinion of ▇▇▇▇▇
▇▇▇▇, Esq., Vice President and General Counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the same effect
as the opinions required by Section 5(c) hereof.
(v) Opinion of Counsel for the Selling Shareholders. The favorable opinion of
▇▇▇▇▇ & Lardner LLP, counsel for the Selling Shareholders, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(d) hereof.
(vi) Opinion of General Counsel for the Principal Selling Shareholders. The
favorable opinion of the respective General Counsels for each the Selling Shareholders, in
form and substance satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(e) hereof.
(vii) Opinion of Counsel for Underwriters. The favorable opinion of White &
Case LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(f) hereof.
(viii) Bring-down Comfort Letter. A letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form
and substance satisfactory to the Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the Representative
pursuant to Section 5(j) hereof, except that the “specified date” in the letter furnished
pursuant to this paragraph shall be a date not more than five days prior to such Date of
Delivery.
(o) Additional Documents. At Closing Time and at each Date of Delivery counsel for the
Underwriters shall have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of the Securities as
herein
23
contemplated, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Selling Shareholders in connection with the sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the Representative and
counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to
the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representative by notice to the Company and the Selling Shareholders at any time
at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination
shall be without liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriter by the Company and Selling Shareholders who are Directors
or Executive Officers. The Company and each Selling Shareholder that is a director or executive
officer (including such executive officers identified on Schedule F hereto) of the Company, jointly
and severally, agrees to indemnify and hold harmless each Underwriter, its affiliates, as such term
is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling agents and each
person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430A
Information or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company and the Selling Shareholders;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by
24
any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, or any preliminary prospectus, any Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Underwriters by Selling Shareholders that are Not Directors or
Executive Officers. Each Selling Shareholder who is not a director or executive officer of the
Company, severally and not jointly, agrees to indemnify and hold harmless each Underwriter, its
Affiliates and selling agents and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner
set forth in clauses (a)(i), (ii) and (iii) above, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information or any preliminary prospectus, any Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company in writing by such Selling
Shareholder expressly for use therein.
(c) Indemnification of Company, Directors and Officers and Selling Shareholders. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each Selling
Shareholder and each person, if any, who controls any Selling Shareholder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto), including the Rule
430A Information or any preliminary prospectus, any Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use
therein.
(d) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) or (b) above, counsel to the indemnified parties shall be
selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(c) above,
counsel to the indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
25
(e) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) or settlement of any claim in connection with any violation
referred to in Section 6(f) 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, (ii) such
indemnifying party shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
(f) Other Agreements with Respect to Indemnification. The provisions of this Section shall
not affect any agreement among the Company and the Selling Shareholders with respect to
indemnification.
(g) Selling Shareholder Liability. The liability of each Selling Shareholder pursuant to
Sections 6(a), 6(b) and 7, shall not exceed the total net proceeds from the offering of the
Securities received by such Selling Shareholder (before deducting expenses); provided that such
limitation shall not apply in the event of a commission of fraud hereunder on the part of such
Selling Shareholder.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling Shareholders on the one
hand and the Underwriters on the other hand from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Selling Shareholders on the one hand
and of the Underwriters on the other hand in connection with the statements or omissions, or in
connection with any violation of the nature referred to in Section 6(f) hereof, which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company and the Selling Shareholders on the one hand and
the Underwriters on the other hand in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the Selling Shareholders and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus bear to the aggregate public
offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the Selling Shareholders on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling Shareholders or by
the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission or any violation of the nature referred to in
Section 6(f) hereof.
The Company, the Selling Shareholders and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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
26
does not take account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any 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
▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company or any Selling Shareholder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution
as the Company or such Selling Shareholder, as the case may be. The Underwriters’ respective
obligations to contribute pursuant to this Section 7 are several in proportion to the number of
Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the Company and the
Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries or the Selling Shareholders submitted pursuant
hereto, shall remain operative and in full force and effect regardless of (i) any investigation
made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling
any Underwriter, its officers or directors, any person controlling the Company or any person
controlling any Selling Shareholder and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this Agreement, by notice to the
Company and the Selling Shareholders, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus or General Disclosure Package, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to market the Securities or to enforce contracts for
the sale of
27
the Securities, or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the Nasdaq Stock Market, Inc., or if trading generally on
the American Stock Exchange or the New York Stock Exchange or in the Nasdaq Global Market has been
suspended or materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (v) if a banking moratorium
has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the Securities which it
or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the
Representative shall have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representative shall not have completed such arrangements within
such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to
be purchased on such date, this Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and sold on such Date of Delivery
shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either the (i) Representative or (ii) the Company and any
Selling Shareholder shall have the right to postpone Closing Time or the relevant Date of Delivery,
as the case may be, for a period not exceeding seven days in order to effect any required changes
in the Registration Statement or Prospectus or in any other documents or arrangements. As used
herein, the term “Underwriter” includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Default by a Selling Shareholder. If a Selling Shareholder shall fail at
the Closing Time or at a Date of Delivery to sell and deliver the number of Securities which such
Selling Shareholder is obligated to sell hereunder, and either (i) the remaining Selling
Shareholders do not exercise the right hereby granted to increase, pro rata or otherwise, the
number of Securities to be sold by them hereunder to the total number to be sold by all Selling
Shareholders as set forth in Schedule B hereto, or (ii) subject to applicable securities laws, the
Company does not exercise the right hereby
28
granted to cause other shareholders to become a party hereto on terms reasonably satisfactory
to the Underwriters such that the total number of Securities to be sold by all Selling Shareholders
(including any such shareholders) is as set forth in Schedule B hereto, then the Underwriters may,
at option of the Representative, by notice from the Representative to the Company and the
non-defaulting Selling Shareholders, either (i) terminate this Agreement without any liability on
the fault of any non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8 shall
remain in full force and effect or (ii) elect to purchase the Securities which the non-defaulting
Selling Shareholders have agreed to sell hereunder. No action taken pursuant to this Section 11
shall relieve any Selling Shareholder so defaulting from liability, if any, in respect of such
default.
In the event of a default by any Selling Shareholder as referred to in this Section 11, each
of the Representative, the Company and the non-defaulting Selling Shareholders shall have the right
to postpone Closing Time or Date of Delivery for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectus or in any other documents or
arrangements.
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated hereby,
the Company (and each employee, representative or other agent of the Company) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed
U.S. federal, state and local income tax treatment of the transactions contemplated hereby, and the
term “tax structure” includes any fact that may be relevant to understanding the purported or
claimed U.S. federal, state and local income tax treatment of the transactions contemplated
hereby.
SECTION 13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to the Representative at 4
World Financial Center, New York, New York 10080, attention: General Counsel, with a copy to White
& Case LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.;
notices to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇▇▇▇, Esq., with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.; and notices to
the Selling Shareholders shall be directed to ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
SECTION 14. No Advisory or Fiduciary Relationship. Each of the Company and each
Selling Shareholder acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering price of the
Securities and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company and the Selling Shareholders, on the one hand, and the several Underwriters, on
the other hand, (b) in connection with the offering contemplated hereby and the process leading to
such transaction each Underwriter is and has been acting solely as a principal and is not the agent
or fiduciary of the Company or any Selling Shareholder, or its respective shareholders, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company or any Selling Shareholder with respect to the
offering contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company or any Selling Shareholder on other
matters) and no Underwriter has any obligation to the Company or any Selling Shareholder with
respect to the offering contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad
29
range of transactions that involve interests that differ from those of each of the Company and
each Selling Shareholder, and (e) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and the Company and each
of the Selling Shareholders has consulted its own respective legal, accounting, regulatory and tax
advisors to the extent it deemed appropriate.
SECTION 15. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters, the Company and the Selling Shareholders and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, the Company and the Selling Shareholders
and their respective successors and the controlling persons and officers and directors referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of
the Underwriters, the Company and the Selling Shareholders and their respective successors, and
said controlling persons and officers and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 19. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
30
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company and the Attorney-in-Fact for the Selling Shareholders a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding agreement among the
Underwriters and the Company and the Selling Shareholders in accordance with its terms.
| Very truly yours, TOMOTHERAPY INCORPORATED |
||||
| By | ||||
| Title: | ||||
| SELLING SHAREHOLDERS |
||||
| By | ||||
| As Attorney-in-Fact acting on behalf of | ||||
| the Selling Shareholders named in Schedule B hereto |
||||
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
| By | ||||
| Authorized Signatory | ||||
For itself and as Representative of the other Underwriters named in Schedule A hereto.
31
SCHEDULE A
| Number of | ||||
| Name of Underwriter | Initial Securities | |||
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated |
||||
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. |
||||
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC |
||||
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated |
||||
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C |
||||
Total |
||||
Sch A- 1
SCHEDULE B
| Number of Initial | Maximum Number of Option | |||||||
| Securities to be Sold | Securities to Be Sold | |||||||
Principal Selling Shareholders |
||||||||
Directors and Executive
Officers |
||||||||
Other Selling Shareholders |
||||||||
Total |
||||||||
Sch B- 1
SCHEDULE C
1. The public offering price per share for the Securities, determined as provided in said Section
2, shall be $ .
2. The purchase price per share for the Securities to be paid by the several Underwriters shall be
$ , being an amount equal to the public offering price set forth above less $ per share;
provided that the purchase price per share for any Option Securities purchased upon the exercise of
the overallotment option described in Section 2(b) shall be reduced by an amount per share equal to
any dividends or distributions declared by the Company and payable on the Initial Securities but
not payable on the Option Securities.
Sch C- 1
SCHEDULE D
Persons and entities
subject to lock-up
Sch D- 3
SCHEDULE E
Issuer General Use Free Writing Prospectus
Sch
E
SCHEDULE F
List of Selling Shareholders who are Executive Officers
| Name | Title | |
Sch
F
Exhibit A-1
FORM OF OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF INTELLECTUAL PROPERTY OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
A-2-1
Exhibit B
FORM OF OPINION OF GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(c)
B-1
Exhibit C
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(d)
C-1
Exhibit D
FORM OF OPINION OF GENERAL COUNSEL FOR THE PRINCIPAL SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(e)
▇-▇
▇▇▇▇▇▇▇ ▇
, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the several
Underwriters to be named in the
Purchase Agreement referenced below
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the several
Underwriters to be named in the
Purchase Agreement referenced below
Re: Proposed Public Offering by Certain Selling Shareholders of TomoTherapy
Incorporated.
Dear Sirs:
The undersigned, a stockholder, optionholder, warrantholder, director or officer of
TomoTherapy Incorporated, a Wisconsin corporation (the “Company”), understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“▇▇▇▇▇▇▇ ▇▇▇▇▇”) propose to enter into
a Purchase Agreement (the “Purchase Agreement”) with the Company and certain selling shareholders
providing for the public offering (the “Offering”) of shares (the “Securities”) of the Company’s
common stock, par value $0.01 per share (the “Common Stock”). In recognition of the benefit that
such an offering will confer upon the undersigned as a stockholder, optionholder, warrantholder,
director or officer of the Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be
named in the Purchase Agreement that, during a period of 90 days from the date of the Purchase
Agreement, the undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly
or indirectly, (i) 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 for the sale of, or
otherwise dispose of or transfer any shares of the Company’s Common Stock or any securities
convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the
power of disposition, or file, or cause to be filed, any registration statement under the
Securities Act of 1933, as amended, with respect to any of the foregoing (collectively, the
“Lock-Up Securities”) or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of
the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common
Stock or other securities, in cash or otherwise.
Notwithstanding the foregoing, and subject to the conditions below, the undersigned may
transfer the Lock-Up Securities without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, provided that
(1) ▇▇▇▇▇▇▇ ▇▇▇▇▇ receives a signed lock-up agreement for the balance of the lockup period from
each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall
not involve a disposition for value, (3) such transfers are not required to be reported in any
public report or filing with the Securities and Exchange Commission, or otherwise and (4) the
undersigned does not otherwise voluntarily effect any public filing or report regarding such
transfers:
| (i) | as a bona fide gift or gifts; or |
E-1
| (ii) | to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or | ||
| (iii) | as a distribution to limited partners or stockholders of the undersigned; or | ||
| (iv) | to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned. |
Furthermore, the undersigned may sell shares of Common Stock of the Company purchased by the
undersigned on the open market following the Offering if and only if (i) such sales are not
required to be reported in any public report or filing with the Securities Exchange Commission, or
otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or
report regarding such sales.
Notwithstanding the foregoing, if:
(1) during the last 17 days of the 90-day lock-up period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the 90-day lock-up period, the Company announces that it will
release earnings results or becomes aware that material news or a material event will occur during
the 16-day period beginning on the last day of the 90-day lock-up period, the restrictions imposed
by this lock-up agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the material news or
material event, as applicable, unless ▇▇▇▇▇▇▇ ▇▇▇▇▇ waives, in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice of any extension of the
90-day lock-up period pursuant to the previous paragraph will be delivered by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the
Company (in accordance with Section 12 of the Purchase Agreement) and that any such notice properly
delivered will be deemed to have been given to, and received by, the undersigned. The undersigned
further agrees that, prior to engaging in any transaction or taking any other action that is
subject to the terms of this lock-up agreement during the period from the date of this lock-up
agreement to and including the 34th day following the expiration of the initial 90-day
lock-up period, it will give notice thereof to the Company and will not consummate such transaction
or take any such action unless it has received written confirmation from the Company that the
90-day lock-up period (as may have been extended pursuant to the previous paragraph) has expired.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in
compliance with the foregoing restrictions.
| Very truly yours, | ||||||
| Signature: | ||||||
| Print Name: | ||||||
E-2