Attached files
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| 8-K - IntraLinks Holdings, Inc. | v205094_8k.htm |
Execution
Copy
10,000,000
Shares
IntraLinks
Holdings, Inc.
Common
Stock, par value $0.001 per share
Underwriting
Agreement
December
6, 2010
December
6, 2010
Morgan
Stanley & Co. Incorporated
Deutsche
Bank Securities Inc.
Jefferies
& Company, Inc.
Credit
Suisse Securities (USA) LLC
Acting
severally on behalf of themselves and
the several Underwriters named in Schedule II
hereto
the several Underwriters named in Schedule II
hereto
|
c/o
|
Morgan
Stanley & Co. Incorporated
|
1585
Broadway
New York,
New York 10036
Deutsche
Bank Securities Inc.
60 Wall
Street
New York,
New York 10005
Jefferies
& Company, Inc.
520
Madison Avenue
New York,
New York 10022
Credit
Suisse Securities (USA) LLC
Eleven
Madison Avenue
New York,
New York 10100
Ladies
and Gentlemen:
IntraLinks
Holdings, Inc., a Delaware corporation (the “Company”), proposes to issue
and sell to the several Underwriters named in Schedule II hereto
(the “Underwriters”),
and certain shareholders of the Company (the “Selling Shareholders”) named
in Schedule I
hereto severally propose to sell to the several Underwriters, an aggregate of
10,000,000 shares of the common stock, par value $0.001 per share, of the
Company (the “Firm
Shares”), of which 2,000,000 shares are to be issued and sold by the
Company and 8,000,000 shares are to be sold by the Selling Shareholders, each
Selling Shareholder selling the amount set forth opposite such Selling
Shareholder’s name in Schedule I
hereto.
The
Selling Shareholders also propose to sell to the several Underwriters not more
than an additional 1,500,000 shares of the common stock, par value $0.001 per
share, of the Company (the “Additional Shares”), with each
Selling Shareholder selling up to the number of Additional Shares set forth
opposite such Selling Shareholder’s name in Schedule I hereto, if
and to the extent that you, as managers of the offering, shall have determined
to exercise, on behalf of the Underwriters, the right to purchase such shares of
common stock granted to the Underwriters in Section 3. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
“Shares”. The
shares of common stock, par value $0.001 per share, of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the “Common
Stock”. The Company and the Selling Shareholders are
hereinafter sometimes collectively referred to as the “Sellers”.
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement on Form S-1 (File No. 333-170694), including a prospectus, relating to
the Shares. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the “Securities Act”), is
hereinafter referred to as the “Registration Statement”; the
prospectus in the form first used to confirm sales of Shares (or in the form
first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter
referred to as the “Prospectus”. If the
Company files an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration
Statement”), then any reference herein to the term “Registration Statement” shall
be deemed to include such Rule 462 Registration Statement.
For
purposes of this Underwriting Agreement (this “Agreement”), “free writing prospectus” has
the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means
the preliminary prospectus together with the free writing prospectuses, if any,
each identified in Schedule III hereto,
and the pricing information included on Schedule III hereto,
and “broadly available road
show” means a “bona fide electronic road show” as defined in Rule
433(h)(5) under the Securities Act that has been made available without
restriction to any person. As used herein, the terms “Registration Statement”,
“preliminary
prospectus”, “Time of
Sale Prospectus” and “Prospectus” shall include the
documents, if any, incorporated by reference therein.
1. Representations and Warranties of
the Company. The Company represents and warrants to and agrees
with each of the Underwriters that:
(a) The
Registration Statement has become effective; and no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or, to the Company’s knowledge, threatened by
the Commission.
(b) (i)
The Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (iii) the Time of Sale Prospectus does not, and, at the time of each
sale of the Shares in connection with the offering when the Prospectus is not
yet available to prospective purchasers and at the Closing Date (as defined in
Section 5), the Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
(iv) each broadly available road show, if any, when considered together with the
Time of Sale Prospectus, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and (v) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
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(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) under the Securities Act or that was prepared by or on behalf of or used
or referred to by the Company complies or will comply in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule III hereto,
and electronic road shows, if any, each furnished to you before first use, the
Company has not prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any free writing prospectus.
(d) Since
the respective dates as of which information is given in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, there has not been
any material adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise), or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole (a
“Material Adverse
Effect”), in each case otherwise than as set forth or contemplated in the
Time of Sale Prospectus.
(e) The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a Material Adverse Effect.
(f) Each
subsidiary of the Company has been duly incorporated (or formed), is validly
existing as a corporation (or other entity) in good standing (or, if in a
foreign jurisdiction, enjoys the equivalent status under the laws of the
jurisdiction of organization outside the United States) under the laws of the
jurisdiction of its incorporation (or formation), has the corporate (or other)
power and authority to own its property and to conduct its business as described
in the Time of Sale Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a Material Adverse Effect; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly by the
Company, and except with respect to a pledge of 100% of the equity interests in
the Company’s domestic subsidiaries and 65% of the equity interests in the
Company’s foreign subsidiaries to secure indebtedness under the Company’s credit
facilities as disclosed in the Time of Sale Prospectus, are free and clear of
all liens, encumbrances, equities or claims.
3
(g) This
Agreement has been duly authorized, executed and delivered by the
Company.
(h) The
authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the
Prospectus.
(i) The
shares of Common Stock (including the Shares to be sold by the Selling
Shareholders) outstanding prior to the issuance of the Shares to be sold by the
Company have been duly authorized and are validly issued, fully paid and
non-assessable, and conform as to legal matters to the description thereof
contained in each of the Time of Sale Prospectus and the
Prospectus.
(j) The
Shares to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, will conform as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the
Prospectus, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(k) The
Shares have been approved for listing on the New York Stock Exchange, subject to
notice of issuance.
(l) Neither
the Company nor any affiliate of the Company has taken, nor will the Company or
any affiliate take, directly or indirectly, any action that is designed to, that
has constituted or that would be expected to cause or result in stabilization or
manipulation of the price of any security of the Company in violation of any
applicable law to facilitate the sale or resale of the Shares.
(m) Except
as disclosed in the Time of Sale Prospectus, neither the Company nor any of its
subsidiaries is in (i) violation of its certificate of incorporation or bylaws
(or equivalent organizational documents) or (ii) default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any agreement or other
instrument binding upon the Company or any of its subsidiaries except where such
default would not have a Material Adverse Effect.
(n) The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene any provision of
applicable law, the certificate of incorporation or bylaws of the Company, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or filing or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, except for such consents, approvals,
authorizations, orders and qualifications as may be required by the securities
or blue sky laws and regulations of the various states in connection with the
offer and sale of the Shares.
(o) There
are no legal or governmental proceedings pending or, to the Company’s knowledge,
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
(i) other than proceedings accurately described in all material respects in the
Time of Sale Prospectus and proceedings that would not have a Material Adverse
Effect or have a material adverse effect on the power or ability of the Company
to perform its obligations under this Agreement or to consummate the
transactions contemplated by the Time of Sale Prospectus or (ii) that are
required to be described in the Registration Statement or the Prospectus and are
not so described in all material respects; and there are no statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described in all material respects or filed
as required.
4
(p) (i)
Each preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto complied as to form, and
(ii) the preliminary prospectus forming part of the Time of Sale Prospectus, and
the Prospectus, filed pursuant to Rule 424 under the Securities Act, complied,
in each case when so filed, in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder.
(q) The
Company is not, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Prospectus will
not be, required to register as an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended.
(r) The
Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a Material Adverse Effect.
(s) There
are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties) that would, singly or in the aggregate,
have a Material Adverse Effect.
(t) Except
as described in the Time of Sale Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to require the
Company to include such securities with the Shares registered pursuant to the
Registration Statement.
(u) Neither
the Company nor any of its subsidiaries or affiliates, nor any director,
officer, or employee, nor, to the Company’s knowledge, any agent or
representative of the Company or of any of its subsidiaries or affiliates, has
taken or will take any action in furtherance of an offer, payment, promise to
pay, or authorization or approval of the payment or giving of money, property,
gifts or anything else of value, directly or indirectly, to any “government
official” (including any officer or employee of a government or government-owned
or controlled entity or of a public international organization, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office) to
influence official action or secure an improper advantage that would constitute
a violation of the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations thereunder (the “FCPA”) or any other applicable
anti-corruption laws; and the Company and its subsidiaries have conducted their
businesses in compliance with the FCPA and any other applicable anti-corruption
laws, and have instituted and maintain and will continue to maintain policies
and procedures designed to promote and achieve compliance with the FCPA and any
other applicable anti-corruption laws and with the representation and warranty
contained herein.
5
(v) The
operations of the Company and its subsidiaries are and have been conducted at
all times in material compliance with all applicable financial recordkeeping and
reporting requirements, including those of the Bank Secrecy Act, as amended by
Title III of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT
Act), and the applicable anti-money laundering statutes of jurisdictions where
the Company and its subsidiaries conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”),
and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to
the best knowledge of the Company, threatened.
(w) (i)
The Company represents that neither the Company nor any of its subsidiaries
(collectively, the “Entity”) or any director or
officer of the Entity, nor, to the knowledge of the Entity, any employee, agent,
affiliate or representative of the Entity, is an individual or entity (“Person”) that is, or is owned
or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions
(including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan
and Syria).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, use
the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any
country or territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or
(B) in
any other manner that will result in a violation of Sanctions by any Person
(including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii)
The Entity represents and covenants that, for the past five years, it has
not knowingly engaged in, is not now knowingly engaged in, and will not engage
in, any dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was the subject
of Sanctions.
6
(x) Subsequent
to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the
Company and its subsidiaries have not incurred any liability or obligation,
direct or contingent, nor entered into any transaction, in each case, except in
the ordinary course of business that is not material to the Company and its
subsidiaries, taken as a whole, (ii) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock other than ordinary and customary
dividends, and (iii) there has not been any material change in the capital
stock, short-term debt or long-term debt of the Company and its subsidiaries,
except in each case as described in each of the Registration Statement, the Time
of Sale Prospectus and the Prospectus, respectively.
(y) The
Company and its subsidiaries do not own any real property. The
Company and its subsidiaries have good and marketable title to all personal
property owned by them that is material to the business of the Company and its
subsidiaries, taken as a whole, free and clear of all liens, encumbrances and
defects except such as are described in the Time of Sale Prospectus or such as
do not materially affect the value of such personal property and do not
materially interfere with the use made and proposed to be made of such personal
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not materially interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries, in each
case except as described in the Time of Sale Prospectus.
(z) Except
as described in the Time of Sale Prospectus, the Company and its subsidiaries
own or possess, have the right to use, or can acquire on reasonable terms
ownership of or rights to use all: material patents, patent rights and
inventions; material works of authorship (including software) and copyrights;
material know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures);
and material trademarks, service marks, trade names and trade dress (whether or
not registered) currently employed by them in connection with the business now
operated by them or that are necessary for the conduct of its businesses
described in the Prospectus (collectively, “Intellectual Property”); and
neither the Company nor any of its subsidiaries has, to its knowledge, received
any notice of any claim of infringement or violation of or conflict with
asserted rights of others with respect to any of the foregoing that, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect. Except for matters that would
not, individually or in the aggregate, have a Material Adverse Effect: (i) there
is no action, suit, proceeding or claim by the Company or any of its
subsidiaries pending or threatened against any third party based on the
infringement by third parties of any Intellectual Property owned by the Company
or any of its subsidiaries (“Company-Owned Intellectual
Property”); (ii) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by any third party challenging the
Company’s rights in or to any Intellectual Property; (iii) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any Company-Owned Intellectual
Property; (iv) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
intellectual property, privacy or proprietary rights of any third party; (v) the
Company and its contractors have not used any open source software or other
publicly available software (“Publicly Available Software”)
in whole or in part in the development of any part of the Company-Owned
Intellectual Property, nor licensed or distributed to any third party any
combination of Publicly Available Software and Company-Owned Intellectual
Property in a manner that (A) requires, or conditions the use or distribution of
any Company-Owned Intellectual Property on, the disclosure, licensing or
distribution of any source code for any portion of such Company-Owned
Intellectual Property or (B) otherwise impose any limitation, restriction or
condition on the right or ability of the Company to use or distribute any
Company-Owned Intellectual Property in any manner; and (vi) the Company and each
of its subsidiaries have complied and are presently in compliance with its
privacy policies and all laws and regulations applicable to it regarding the
collection, use, transfer, import, export, storage, protection, disposal and
disclosure by the Company and its subsidiaries of personally identifiable
information or other information relating to persons protected by
law.
7
(aa) No
material labor dispute with the employees of the Company or any of its
subsidiaries exists, except as described in the Time of Sale Prospectus, or, to
the knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors that would have a Material
Adverse Effect.
(bb) The
Company and its subsidiaries, taken as a whole, are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any of its subsidiaries has been refused any
insurance coverage sought or applied for; and the Company, together with its
subsidiaries, has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business.
(cc) The
Company and its subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect,
except as described in the Time of Sale Prospectus.
(dd) As
of the date of this Agreement, its subsidiaries and the composition of the
Company’s Board of Directors and committees thereof are in compliance in all
material respects with all applicable rules and regulations of the
Sarbanes-Oxley Act of 2002 and all applicable rules of the New York Stock
Exchange.
(ee) The
Company and its subsidiaries maintain a system of internal controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
Except as described in the Time of Sale Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (A) no material
weakness in the Company’s internal control over financial reporting (whether or
not remediated) and (B) no change in the Company’s internal control over
financial reporting that has materially adversely affected, or is reasonably
likely to materially adversely affect, the Company’s internal control over
financial reporting. The Company maintains “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), that comply
with the requirements of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information relating to
the Company and its subsidiaries is made known to the Company’s principal
executive officer and principal financial officer by others within those
entities and that such disclosure controls and procedures are
effective.
8
(ff) The
financial statements (including the related notes) included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus comply in all material
respects with the requirements of the Securities Act and present fairly in all
material respects the consolidated financial condition, the consolidated results
of operations and the consolidated changes in cash flows of the Company and its
consolidated subsidiaries in conformity with generally accepted accounting
principles; the summary and selected historical financial data set forth in the
Registration Statement, the Time of Sale Prospectus and the Prospectus present
fairly in all material respects the information shown therein and have been
compiled on a basis consistent in all material respects with that of the audited
consolidated financial statements set forth in the Registration Statement, the
Time of Sale Prospectus and the Prospectus or the unaudited condensed
consolidated financial statements, as the case may be; and there are no other
financial statements or schedules required to be included in the Registration
Statement, the Time of Sale Prospectus or the Prospectus that are not so
included.
(gg) The
pro forma financial information included in the Registration Statement, the Time
of Sale Prospectus and the Prospectus has been prepared on a basis consistent
with the Company’s historical financial statements included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus (except for the pro
forma adjustments specified therein), includes all material adjustments to the
Company’s historical financial information required by Rule 11-02 of Regulation
S-X under the Securities Act and the Exchange Act to reflect the transactions
described in the notes to such financial information as of the respective dates
of such pro forma information and gives effect to assumptions made on a
reasonable basis. The assumptions used in preparing the pro forma
financial information included in the Registration Statement, the Time of Sale
Prospectus and the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts. No other pro forma financial statements or
information are required by the Securities Act or the Exchange Act to be
included or incorporated by reference in the Registration Statement, the Time of
Sale Prospectus or the Prospectus.
(hh) PricewaterhouseCoopers
LLP, whose reports are incorporated by reference into the Registration
Statement, is and, during the periods covered by their reports, was an
independent registered public accounting firm with respect to the Company as
required by the Securities Act and the published rules and regulations
thereunder adopted by the Commission and the Public Company Accounting Oversight
Board (United States).
(ii)
The statistical, market-related and industry-related data included
in the Registration Statement, the Time of Sale Prospectus and the Prospectus
are based on or derived from sources that the Company reasonably believes to be
reliable and accurate in all material respects.
(jj)
Except as set forth in or contemplated in the Time of Sale Prospectus, the
Company and its subsidiaries have filed all federal, state, local and foreign
tax returns required to be filed by them through the date of this Agreement or
have requested extensions thereof and, except for any tax that is currently
being contested in good faith, have paid all taxes required to be paid thereon
to the extent that such taxes are due and payable as of the date of this
Agreement, except where the failure to file any such return or pay any such tax
would not have a Material Adverse Effect.
9
(kk) Except
as described in the Time of Sale Prospectus, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the
date hereof, including any sales pursuant to Rule 144A under, or Regulation D or
Regulation S of, the Securities Act, other than shares issued pursuant to
employee benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
2.
Representations and Warranties
of the Selling Shareholders. Each Selling Shareholder
severally represents and warrants to and agrees with each of the Underwriters
that:
(a) This
Agreement has been duly authorized, executed and delivered by or on behalf of
such Selling Shareholder.
(b) The
execution and delivery by such Selling Shareholder of, and the performance by
such Selling Shareholder of its obligations under, this Agreement and the Power
of Attorney and Custody Agreement signed by such Selling Shareholder appointing
certain individuals as such Selling Shareholder’s attorneys-in-fact to the
extent set forth therein and relating to the deposit of the Shares to
be sold by such Selling Shareholder (the “Power of Attorney and Custody Agreement”) will not
contravene (i) any provision of applicable law, (ii) the certificate of
incorporation or bylaws of such Selling Shareholder (if such Selling Shareholder
is an entity) or other organizational documents of such Selling Shareholder (if
such Selling Shareholder is another type of entity), (iii) any agreement or
other instrument binding upon such Selling Shareholder or (iv) any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over such Selling Shareholder, except in the cases of clause (iii) as would not,
individually or in the aggregate, impair the ability of such Selling
Shareholder to consummate the transactions contemplated by this Agreement or the
Power of Attorney and Custody Agreement. No consent, approval, authorization or
order of, or filing or qualification with, any governmental body or agency is
required for the performance by such Selling Shareholder of its obligations
under this Agreement or the Power of Attorney and Custody Agreement of such
Selling Shareholder, except for such consents, approvals, authorizations, orders
or qualifications as may be required by the securities or blue sky laws and
regulations of the various states in connection with the offer and sale of the
Shares.
(c) Such
Selling Shareholder has, and on the Closing Date will have, valid title to, or a
valid “security entitlement” within the meaning of Section 8-501 of the New York
Uniform Commercial Code in respect of, the Shares to be sold by such Selling
Shareholder 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 and the Power of Attorney
and Custody Agreement and to sell, transfer and deliver the Shares to be sold by
such Selling Shareholder or a security entitlement in respect of such
Shares.
(d) The
Power of Attorney and Custody Agreement has been duly authorized, executed and
delivered by such Selling Shareholder and is a valid and binding agreement of
such Selling Shareholder enforceable against such Selling Shareholder in
accordance with its terms, except (i) as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights
generally, and (ii) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding may be brought.
10
(e) Upon
payment for the Shares to be sold by such Selling Shareholder pursuant to this
Agreement, delivery of such Shares, as directed by the Underwriters, to Cede
& Co. (“Cede”) or
such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such
Shares in the name of Cede or such other nominee and the crediting of such
Shares on the books of DTC to securities accounts of the Underwriters (assuming
that neither DTC nor any such Underwriter has notice of any adverse claim
(within the meaning of Section 8-105 of the New York Uniform Commercial
Code (the “UCC”)) to
such Shares), (A) DTC shall be a “protected purchaser” of such Shares
within the meaning of Section 8-303 of the UCC, (B) under
Section 8-501 of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Shares and (C) no action based on any
“adverse claim”, within the meaning of Section 8-102 of the UCC, to such
Shares may be asserted against the Underwriters with respect to such security
entitlement; for purposes of this representation, such Selling Shareholder may
assume that when such payment, delivery and crediting occur, (x) such
Shares will have been registered in the name of Cede or another nominee
designated by DTC, in each case on the Company’s share registry in accordance
with its certificate of incorporation, bylaws and applicable law, (y) DTC
will be registered as a “clearing corporation” within the meaning of
Section 8-102 of the UCC and (z) appropriate entries to the accounts
of the several Underwriters on the records of DTC will have been made pursuant
to the UCC.
(f)
Such Selling Shareholder is not prompted by any material information
concerning the Company or its subsidiaries which is not set forth in the Time of
Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The
Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the Time of
Sale Prospectus does not, and, at the time of each sale of the Shares in
connection with the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in Section 5),
the Time of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and (iii) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph 2(g) are 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, the Time of Sale Prospectus, the Prospectus
or any amendments or supplements thereto.
3.
Agreements to Sell and
Purchase. Each Seller, severally and not jointly, hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from such Seller at $19.00 a share (the “Purchase Price”) the number of
Firm Shares (subject to such adjustments to eliminate fractional shares as you
may determine) that bears the same proportion to the number of Firm Shares to be
sold by such Seller as the number of Firm Shares set forth in Schedule II hereto
opposite the name of such Underwriter bears to the total number of Firm
Shares.
11
Upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, each Selling Shareholder severally and not
jointly agrees to sell to the several Underwriters the Additional Shares to
be sold by such Selling Shareholder according to the terms of this
Agreement, and
the several Underwriters shall have the right to purchase, severally and not
jointly, up to 1,500,000 Additional Shares at the Purchase Price. You
may exercise this right on behalf of the Underwriters in whole or from time to
time in part by giving written notice not later than 30 days after the date of
this Agreement. Any exercise notice shall specify the number of
Additional Shares to be purchased by the Underwriters and the date on which such
Additional Shares are to be purchased. Each purchase date must be at
least one business day after the written notice is given and may not be earlier
than the Closing Date nor later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in Section 5
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. On each day, if any, that
Additional Shares are to be purchased (an “Option Closing Date”), each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased on such Option Closing Date as the number of
Firm Shares set forth in Schedule II hereto
opposite the name of such Underwriter bears to the total number of Firm
Shares. If the number of Additional Shares to be purchased by the
several Underwriters on the Option Closing Date is less than the number of
Additional Shares being offered by the Selling Shareholders as set forth on
Schedule I
hereto, the number of Additional Shares to be sold by the Selling Shareholders
shall be allocated among the Selling Shareholders on a pro rata basis in
accordance with the respective number of Additional Shares being offered by each
Selling Shareholder as set forth on Schedule I hereto,
subject to such adjustments to eliminate fractional shares as you may
determine.
4.
Terms of Public
Offering. The Sellers are advised by you that the Underwriters
propose to make a public offering of their respective portions of the Shares as
soon after the Registration Statement and this Agreement have become effective
as in your judgment is advisable. The Sellers are further advised by
you that the Shares are to be offered to the public initially at $20.00 a share
(the “Public Offering
Price”) and to certain dealers selected by you at a price that represents
a concession not in excess of $0.60 a share under the Public Offering
Price.
5.
Payment and
Delivery. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller in federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on December 10, 2010, or at such other time on the same or such other
date, not later than December 17, 2010, as shall be designated in writing by
you. The time and date of such payment are herein referred to as the
“Closing
Date”.
Payment
for any Additional Shares to be sold by each Selling Shareholder shall be made
to such Selling Shareholder in federal or other funds immediately available in
New York City against delivery of such Additional Shares for the respective
accounts of the several Underwriters at 10:00 a.m., New York City time, on the
date specified in the corresponding notice described in Section 3, or at such
other time on the same or on such other date, in any event not later than
January 19, 2011, as shall be designated in writing by you.
12
The Firm
Shares and Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than two full business
days prior to the Closing Date or the applicable Option Closing Date, as the
case may be. The Firm Shares and Additional Shares shall be delivered
to you on the Closing Date or an Option Closing Date, as the case may be, for
the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the Purchase Price therefor.
6.
Conditions to the
Underwriters’ Obligations. The obligations of the Sellers to
sell the Firm Shares to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the Firm Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 3:00 p.m. (New York City time) on the date
hereof.
The
several obligations of the Underwriters are subject to the following further
conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the securities of the Company or any of its subsidiaries by any
“nationally recognized statistical rating organization”, as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus as of the date of this Agreement that,
in your judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Time of Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed on behalf of the Company by an executive officer of the
Company, to the effect set forth in Section 6(a)(i) and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
(c) The
Underwriters shall have received on the Closing Date an opinion of Goodwin
Procter LLP, outside counsel for the Company, dated the Closing Date, to the
effect set forth in Exhibit B
hereto.
(d) The
Underwriters shall have received on the Closing Date an opinion of David Curran,
Esq., in-house counsel for the Company, dated the Closing Date, to the effect
set forth in Exhibit
C hereto.
(e) The
Underwriters shall have received on the Closing Date an opinion of Goodwin
Procter LLP, counsel for the Selling Shareholders, dated the Closing Date, to
the effect set forth in Exhibit D
hereto.
13
With
respect to the negative assurance letter provided by each of Goodwin Procter LLP
and Pillsbury Winthrop Shaw Pittman LLP, such counsel may state that their
opinions and beliefs are based upon their participation in the preparation of
the Registration Statement, the Time of Sale Prospectus and the Prospectus and
any amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified. With respect to the opinion provided pursuant to Section
6(e) above, such counsel may rely upon an opinion or opinions of counsel for any
Selling Shareholders and, with respect to factual matters and to the extent such
counsel deems appropriate, upon the representations of each Selling Shareholder
contained herein and in the Power of Attorney and Custody Agreement of such
Selling Shareholder and in other documents and instruments; provided that (1) each such
counsel for the Selling Shareholders is reasonably satisfactory to your counsel,
(2) a copy of each opinion so relied upon is delivered to you and is in form and
substance reasonably satisfactory to your counsel, and (3) copies of such Power
of Attorney and Custody Agreements and of any such other documents and
instruments shall be delivered to you and shall be in form and substance
reasonably satisfactory to your counsel.
The
opinions of Goodwin Procter LLP (and any opinions of counsel for any Selling
Shareholder referred to in the immediately preceding paragraph) shall be
rendered to the Underwriters at the request of the Company or one or more of the
Selling Shareholders, as the case may be, and shall so state
therein.
(f) The
Underwriters shall have received on the Closing Date an opinion of Pillsbury
Winthrop Shaw Pittman LLP, counsel for the Underwriters, dated the Closing Date,
satisfactory to the Underwriters.
(g) The
Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers
LLP, independent registered public accounting firm, containing statements and
information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the Time of Sale Prospectus
and the Prospectus; provided that the letter
delivered on the Closing Date shall use a “cut-off date” not earlier than the
date hereof.
(h) The
“lock-up” agreements, each substantially in the form of Exhibit A hereto,
between you and each stockholder, officer and director of the Company set forth
on Schedule IV
hereto, relating to sales and certain other dispositions of shares of Common
Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
The
several obligations of the Underwriters to purchase Additional Shares hereunder
are subject to the satisfaction of the conditions set forth in clauses (a)
through (h) of this Section 6, each as of the applicable Option Closing Date,
and the delivery to you on the applicable Option Closing Date of such documents
as you may reasonably request with respect to the good standing of the Company,
the due authorization and issuance of the Additional Shares to be sold on such
Option Closing Date and other matters related to the issuance of such Additional
Shares.
7.
Covenants of the
Company. The Company covenants with each Underwriter as
follows:
14
(a) To
furnish to you, without charge, four copies of the signed Registration Statement
(including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and to
furnish to the Underwriters in New York City, without charge, prior to 10:00
a.m. (New York City time) on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 7(e) or Section 7(f), as
many copies of the Time of Sale Prospectus, the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may reasonably
request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to Rule 424(b) under the Securities
Act.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared by
or on behalf of, used by or referred to by the Company and not to use or refer
to any proposed free writing prospectus to which you reasonably
object.
(d) Not
to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus that the Underwriter otherwise would
not have been required to file thereunder, but for the action of the
Company.
(e) If
the Time of Sale Prospectus is being used to solicit offers to buy the Shares at
a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then on
file, or if, in the opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Time of Sale Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own expense,
to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of
Sale Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Time of Sale Prospectus is delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or so
that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f)
If, during such period after the first date of the public offering of the Shares
as in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading
or so that the Prospectus, as amended or supplemented, will comply with
applicable law.
15
(g) To
endeavor to qualify the Shares for offer and sale under the securities or blue
sky laws of such jurisdictions as you shall reasonably request; provided that the Company
shall not be required to (i) qualify as a foreign corporation or other entity or
as a dealer in securities in any such jurisdiction where it would not otherwise
be required to so qualify, (ii) file any general consent to service of process
in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(h) To
make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the date
of this Agreement that shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
(i) Without
the prior written consent of Morgan Stanley & Co. Incorporated (“Morgan Stanley”) on behalf of
the Underwriters, not to, during the period ending 90 days after the date of the
Prospectus, (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 to purchase, lend or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) above or clause (ii) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise, or
(iii) file any registration statement with the Commission relating to the
offering of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock.
The
restrictions contained in the preceding paragraph shall not apply to (a) the
Shares to be sold hereunder, (b) the issuance by the Company of shares of Common
Stock upon the exercise of an option or warrant outstanding on the date hereof
which are described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, (c) the grant by the Company of options to purchase Common
Stock or the issuance of shares of restricted Common Stock, each under existing
stock option plans in effect on the date hereof which are described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (d) the
conversion or exchange of a security outstanding on the date hereof which is
described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, (e) the establishment of a trading plan pursuant to Rule 10b5-1
under the Exchange Act for the transfer of shares of Common Stock, provided that
such plan does not provide for the transfer of Common Stock during the 90-day
restricted period, or (f) the filing of any registration statement on Form S-8
or a successor form with the Commission relating to any shares of Common Stock
issued or issuable under any employee benefit plans of the Company which are
described in the Registration Statement, the Time of Sale Prospectus and 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 during the 16-day period beginning on the last day
of the 90-day period, the restrictions imposed by this 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. The Company shall promptly notify Morgan Stanley of any
earnings release, news or event that may give rise to an extension of the
initial 90-day restricted period.
16
(j) The
Company will apply the net proceeds of the Common Stock in accordance with its
statements under the caption “Use of Proceeds”.
(k) If
any Seller is not a U.S. person for U.S. federal income tax purposes, the
Company will deliver to each Underwriter (or its agent), on or before the
Closing Date, (i) a certificate with respect to the Company’s status as a
“United States real property holding corporation,” dated not more than thirty
(30) days prior to the Closing Date, as described in Treasury Regulations
Sections 1.897-2(h) and 1.1445-2(c)(3), and (ii) proof of delivery to the
Internal Revenue Service (“IRS”) of the required notice,
as described in Treasury Regulations 1.897-2(h)(2).
8.
Covenants of the Selling
Shareholders.
(a) Each
Selling Shareholder, severally and not jointly, covenants with each Underwriter
that it will deliver to each Underwriter (or its agent), prior to or at the
Closing Date, a properly completed and executed IRS Form W-9 or an IRS Form W-8,
as appropriate, together with all required attachments to such
form.
(b) Each
Selling Shareholder agrees to execute the form of “lock-up” agreement in the
form of Exhibit
A hereto.
9.
Expenses. Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company agrees to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company’s counsel,
the Company’s accountants and counsel for the Selling Shareholders in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
the Prospectus, any free writing prospectus prepared by or on behalf of, used by
or referred to by the Company and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any blue
sky or legal investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 7(g), including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the blue sky or legal investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel for the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the Financial Industry Regulatory
Authority, Inc. (“FINRA”), (v) all fees and
expenses in connection with the preparation and filing of the registration
statement on Form 8-A relating to the Common Stock and all costs and expenses
incident to listing the Shares on the New York Stock Exchange, (vi) the cost of
printing certificates representing the Shares, (vii) the costs and charges of
any transfer agent, registrar or depositary, (viii) the costs and expenses of
the Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company, and
travel and lodging expenses of the representatives and officers of the Company
17
and any
such consultants, (ix) one-half of the cost of any aircraft chartered and any
ground transportation used by the Company in connection with the road show, (x)
the document production charges and expenses associated with printing this
Agreement and (xi) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not otherwise
made in this Section 9. The Selling Shareholders acknowledge and
agree that the Company will pay or cause to be paid all expenses, including
those referred to in the preceding sentence, incident to the performance of the
Sellers’ obligations under this Section 9. It is understood, however,
that except as provided in this Section 9, Section 11 entitled “Indemnity and
Contribution” and the last paragraph of Section 13, the Underwriters will pay
all of their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by them,
any advertising expenses connected with any offers they may make, and one-half
of the cost of any aircraft chartered in connection with the road
show. It being understood, however, that the fees and disbursements
of counsel for the Underwriters that the Company may be required to pay pursuant
to clauses (iii) and (iv) of this Section 9 (except, for the avoidance of doubt,
(A) the cost of printing or producing any blue sky or legal investment
memorandum in connection with the offer and sale of the Shares under state
securities laws and all expenses, including filing fees, in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 6(g), and (B) all FINRA filing fees, which are subject to
full payment by the Company) shall not exceed $25,000 in the
aggregate.
The
provisions of this Section 9 shall not supersede or otherwise affect any
agreement that the Sellers may otherwise have for the allocation of such
expenses among themselves.
10. Covenants of the
Underwriters. Each Underwriter severally covenants with the
Company not to take any action that would result in the Company being required
to file with the Commission under Rule 433(d) under the Securities Act a free
writing prospectus that otherwise would not be required to be filed by the
Company thereunder, but for the action of such Underwriter.
11. Indemnity and
Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, each partner,
member, director, officer, employee and agent of any Underwriter, each person,
if any, who controls any Underwriter within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule
433(h) under the Securities Act, any Company information that the Company has
filed, or is required to file, pursuant to Rule 433(d) under the Securities Act,
or the Prospectus or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
18
(b) Each
Selling Shareholder agrees, severally and not jointly, to indemnify and hold
harmless each Underwriter, each partner, member, director, officer, employee and
agent of any Underwriter, each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus as defined in Rule 433(h) under the Securities Act, any
Company information that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with respect to such statements or
omissions made in reliance upon and
in conformity with information relating to such Selling Shareholder
furnished in writing by or on behalf of such Seller expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto. Notwithstanding anything to contrary contained
herein, the liability of each Selling Shareholder under this Agreement shall be
limited to an amount equal to the aggregate net
proceeds after
underwriting discounts and commissions, but before expenses, from
the sale of the Shares by such Selling Shareholder under this
Agreement.
(c) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Selling Shareholders, the directors of the Company, the
officers of the Company who sign the Registration Statement and each person, if
any, who controls the Company or any Selling Shareholder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Sellers to such Underwriter, but
only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus or the Prospectus or any amendment or
supplement thereto.
(d) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to Section 11(a), 11(b) or 11(c), such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable and documented fees and disbursements of
such counsel related to such proceeding; provided that the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have under Section 11(a), 11(b) or 11(c) except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under Section 11(a),
11(b) or 11(c). In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (i)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act or who are affiliates of any Underwriter
within the meaning of Rule 405 under the Securities Act, (ii) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either such
Section and (iii) the fees and expenses of more than
19
one
separate firm (in addition to any local counsel) for all Selling Shareholders
and all persons, if any, who control any Selling Shareholder within the meaning
of either such Section, and that all such fees and expenses shall be reimbursed
as they are incurred. In the case of any such separate firm for the
Underwriters and such control persons and affiliates of any Underwriters, such
firm shall be designated in writing by Morgan Stanley. In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the
Company. In the case of any such separate firm for the Selling
Shareholders and such control persons of any Selling Shareholders, such firm
shall be designated in writing by the persons named as attorneys-in-fact for the
Selling Shareholders under the Power of Attorney and Custody
Agreements. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (A) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request and (B) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party.
(e) To
the extent the indemnification provided for in Section 11(a), 11(b) or 11(c) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 10(d)(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
10(d)(i) but also the relative fault of the indemnifying party or parties on the
one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Sellers on the
one hand and the Underwriters on the other hand in connection with the offering
of the Shares shall be deemed to be in the same respective proportions as the
net proceeds from the offering of the Shares (after
underwriting discounts and commissions, but before
expenses)
20
received
by each Seller and the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear
to the aggregate Public Offering Price of the Shares. The relative
fault of the Sellers on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Sellers or by
the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters’ respective obligations to contribute
pursuant to this Section 11 are several in proportion to the respective number
of Shares they have purchased hereunder, and not joint. The liability
of each Selling Stockholder under the contribution agreement contained in this
paragraph, taken
together with any amount paid or payable by such Selling Stockholder pursuant to
Section 10(b), shall be
limited to an amount equal to the aggregate net
proceeds after
underwriting discounts and commissions, but before expenses, from
the sale of the Shares by such Selling Stockholder under this Agreement. The
Sellers’ respective obligations to contribute pursuant to this Section 10(e) are
several in proportion to the net proceeds received by them, respectively, from
the sale of Shares under this Agreement and not
joint.
(f) The
Sellers and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 11 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in Section 11(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 11(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 11,
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 11 are
not exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
(g) The
indemnity and contribution provisions contained in this Section 11 and the
representations, warranties and other statements of the Company and the Selling
Shareholders contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter, any person controlling
any Underwriter or any affiliate of any Underwriter, any Selling Shareholder or
any person controlling any Selling Shareholder or by or on behalf of the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
21
12. Termination. The
Underwriters may terminate this Agreement by notice given by you to the Company,
if after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on,
or by, as the case may be, either of the New York Stock Exchange or the NASDAQ
Global Market, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a material
disruption in securities settlement, payment or clearance services in the United
States shall have occurred, (iv) any moratorium on commercial banking activities
shall have been declared by federal or New York State authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and that, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Shares on the terms and in the manner
contemplated in the Time of Sale Prospectus or the Prospectus.
13. Effectiveness; Defaulting
Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on
the Closing Date or an Option Closing Date, as the case may be, any one or more
of the Underwriters shall fail or refuse to purchase Shares that it has or they
have agreed to purchase hereunder on such date, and the aggregate number of
Shares that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate number of the
Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule II bears to
the aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares that such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event
shall the number of Shares that any Underwriter has agreed to purchase pursuant
to this Agreement be increased pursuant to this Section 13 by an amount in
excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Shares and the aggregate number of Firm
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares to be purchased on such date, and arrangements
satisfactory to you, the Company and the Selling Shareholders for the purchase
of such Firm Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Shareholders. In any such
case either you or the relevant Sellers shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement, in the Time of Sale
Prospectus, in the Prospectus or in any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such Option Closing Date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase the
Additional Shares to be sold on such Option Closing Date or (ii) purchase not
less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
22
If this
Agreement shall be terminated by the Underwriters, or any of them, because of
any failure or refusal on the part of any Seller or Sellers to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller or Sellers shall be unable to perform its respective
obligations under this Agreement, such
non-complying or non-performing Seller or Sellers, as applicable, will
severally reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably
incurred by such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
14. Entire
Agreement.
(a) This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that relate
to the offering of the Shares, represents the entire agreement between the
Company and the Selling Shareholders, on the one hand, and the Underwriters, on
the other, with respect to the preparation of any preliminary prospectus, the
Time of Sale Prospectus, the Prospectus, the conduct of the offering and the
purchase and sale of the Shares.
(b) The
Company acknowledges that in connection with the offering of the Shares:
(i) the Underwriters have acted at arms length, are not agents of, and owe
no fiduciary duties to, the Company or any other person, (ii) the Underwriters
owe the Company only those duties and obligations set forth in this Agreement
and prior written agreements (to the extent not superseded by this Agreement),
if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by
applicable law any claims it may have against the Underwriters arising from an
alleged breach of fiduciary duty in connection with the offering of the
Shares.
15. Counterparts. This
Agreement may be signed in two or more counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
16. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
17. Headings. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
18. Notices. All
communications hereunder shall be in writing and effective only upon receipt and
if to the Underwriters shall be delivered, mailed or sent to you in care
of:
Morgan
Stanley & Co. Incorporated
1585
Broadway
New York,
New York 10036
Attention:
Equity Syndicate Desk
with a
copy to the Legal Department
Deutsche
Bank Securities Inc.
60 Wall
Street, 4th
Floor
New York,
New York 10005
Attention:
ECM Syndicate Desk (Fax: 212-797-9344)
with a
copy to the General Counsel (Fax: 212-797-4564)
23
Jefferies
& Company, Inc.
520
Madison Avenue
New York,
New York 10022
Attention:
General Counsel
Credit
Suisse Securities (USA) LLC
Eleven
Madison Avenue
New York,
New York 10100
Attention:
LCD-IBD
with a
copy to (which shall not constitute notice):
Pillsbury
Winthrop Shaw Pittman LLP
1540
Broadway
New York,
New York 10036
Attention:
Ronald A. Fleming, Esq.
if to the
Company shall be delivered, mailed or sent to:
IntraLinks,
Inc.
150 East
42nd Street, 8th Floor
New York,
New York 10017
Attention:
David Curran, Esq.
with a
copy to (which shall not constitute notice):
Goodwin
Procter LLP
The New
York Times Building
620
Eighth Avenue
New York,
New York 10018
Attention:
Stephen M. Davis, Esq.
and if to
the Selling Shareholders shall be delivered, mailed or sent to:
J. Andrew
Damico, Anthony Plesner and David Curran, as Attorneys-in-Fact
c/o
IntraLinks Holdings, Inc.
150 East
42nd Street, 8th Floor
New York,
New York 10017
Attention:
David Curran, Esq.
American
Stock Transfer & Trust Company, LLC, as Custodian
6201
15th
Avenue
Brooklyn,
New York 11219
with a
copy to (which shall not constitute notice):
Goodwin
Procter LLP
The New
York Times Building
620
Eighth Avenue
New York,
New York 10018
Attention:
Stephen M. Davis, Esq.
24
|
Very
truly yours,
IntraLinks
Holdings, Inc.
|
|
|
By:
|
/s/
David Curran
|
||
|
Name:
|
David
Curran
|
||
|
Title:
|
Executive
Vice President
Business
and Legal Affairs
|
||
|
The
Selling Shareholders named in
Schedule I
hereto, acting severally.
|
|
|
By:
|
/s/
David Curran
|
|
|
Attorney-in
Fact
|
|
Accepted
as of the date hereof:
Morgan
Stanley & Co. Incorporated
Deutsche
Bank Securities Inc.
Jefferies
& Company, Inc.
Credit
Suisse Securities (USA) LLC
|
|
Acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto. |
|
By:
|
Morgan
Stanley & Co. Incorporated
|
|
|
By:
|
/s/
John Tyree
|
|
Name:
|
John
Tyree
|
||
|
Title:
|
Managing
Director
|
|
By:
|
Deutsche
Bank Securities Inc.
|
|
|
By:
|
/s/
Chris Cormier
|
|
Name:
|
Chris
Cormier
|
||
|
Title:
|
Director
|
|
By:
|
/s/
John Reed
|
|
Name:
|
John
Reed
|
||
|
Title:
|
Director
|
25
|
By:
|
Jefferies
& Company, Inc.
|
|
|
By:
|
/s/
Alec Ellison
|
|
Name:
|
Alec
Ellison
|
||
|
Title:
|
Vice
Chairman
|
|
By:
|
Credit
Suisse Securities (USA) LLC
|
|
|
By:
|
/s/
David Goldstein
|
|
Name:
|
David
Goldstein
|
||
|
Title:
|
Managing
Director
|
26
SCHEDULE
I
|
Selling
Shareholder
|
Number
of Firm
Shares To Be Sold |
Number
of Additional
Shares To Be Sold |
||||||
|
TA
Atlantic and Pacific V
L.P.
|
781,667 | 149,204 | ||||||
|
TA
Investors II
L.P.
|
71,683 | 13,683 | ||||||
|
TA
Strategic Partners Fund II
L.P.
|
85,055 | 16,235 | ||||||
|
TA
Strategic Partners Fund II-A L.P.
|
2,931 | 559 | ||||||
|
TA
Subordinated Debt Fund II, L.P.
|
164,357 | 31,372 | ||||||
|
TA
X,
L.P.
|
3,419,795 | 652,767 | ||||||
|
Rho
Management Trust
I
|
1,654,965 | 315,898 | ||||||
|
Rho
Ventures IV (QP),
L.P.
|
503,431 | 96,094 | ||||||
|
Rho
Ventures IV GmbH & Co Beteiligungs
|
524,648 | 100,144 | ||||||
|
Rho
Ventures IV,
L.P.
|
213,839 | 40,818 | ||||||
|
J.
Andrew
Damico
|
40,000 | 40,000 | ||||||
|
Anthony
Plesner
|
55,000 | 0 | ||||||
|
Peter
Gyenes
|
66,040 | 8,960 | ||||||
|
Patrick
J. Wack,
Jr.
|
75,000 | 0 | ||||||
|
Mohammad
Fahim
|
40,000 | 0 | ||||||
|
Francis
Mather
|
73,751 | 14,077 | ||||||
|
Gregory
Kenepp
|
25,000 | 0 | ||||||
|
Robert
Mullen
|
30,000 | 0 | ||||||
|
Jody
Tracey
|
23,270 | 0 | ||||||
|
Thomas
Fredell
|
38,265 | 7,304 | ||||||
|
Gary
Hirsch
|
25,000 | 0 | ||||||
|
Christopher
Thomas
|
21,787 | 4,159 | ||||||
|
George
Khater
|
17,664 | 3,372 | ||||||
|
Frank
Brunetti
|
17,281 | 3,299 | ||||||
|
Edward
Sander
|
11,447 | 553 | ||||||
|
William
Lee
|
11,076 | 1,502 | ||||||
|
David
Sumka
|
7,048 | 0 | ||||||
|
Total:
|
8,000,000 | 1,500,000 | ||||||
S-I-1
SCHEDULE II
|
Underwriter
|
Number
of Firm Shares To
Be Purchased |
|||
|
Morgan
Stanley & Co.
Incorporated
|
3,800,000 | |||
|
Deutsche
Bank Securities
Inc.
|
2,400,000 | |||
|
Jefferies
& Company,
Inc.
|
1,200,000 | |||
|
Credit
Suisse Securities (USA)
LLC
|
1,100,000 | |||
|
Lazard
Capital Markets
LLC
|
800,000 | |||
|
Pacific
Crest Securities
LLC
|
700,000 | |||
|
Total:
|
10,000,000 | |||
S-II-1