THOMAS WEISEL PARTNERS GROUP,
INC.
Common Stock, par value $0.01 per
share
Form of Underwriting
Agreement
Thomas Weisel
Partners LLC
Keefe, Bruyette & Woods, Inc.
As representatives of the several
Underwriters
named
in Schedule I hereto,
c/o Keefe, Bruyette & Woods, Inc.
787 Seventh Avenue, 5th Floor
New York, NY 10019
Thomas Weisel
Partners Group, Inc., a Delaware corporation (“TWP
Group”), proposes, subject to the terms and conditions stated
herein, to issue and sell to the Underwriters named in
Schedule I hereto (the “Underwriters”) an
aggregate of 3,783,670 shares of Common Stock, par value $0.01 per
share (“Stock”) of TWP Group, and the stockholders of
TWP Group named in Schedule II hereto (the “Selling
Stockholders”) propose, subject to the terms and conditions
stated herein, to sell to the Underwriters an aggregate of
1,216,330 shares and, at the election of the Underwriters, up to
750,000 additional shares of Stock. The aggregate of 5,000,000
shares to be sold by TWP Group and the Selling Stockholders is
herein called the “Firm Shares” and the aggregate of
750,000 additional shares to be sold by the Selling Stockholders is
herein called the “Optional Shares”. The Firm Shares
and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called
the “Shares”.
In connection with
the offering contemplated by this Agreement, a wholly-owned
subsidiary (“Merger Sub”) of TWP Group will merge with
and into Thomas Weisel Partners Group LLC, a Delaware limited
liability company (“TWP LLC”), such that the separate
existence of Merger Sub will cease and TWP LLC will be the
surviving company (the “Merger”), on the terms and
conditions provided in the plan of reorganization and merger
agreement dated as of October 14, 2005, among TWP LLC, TWP
Group and Merger Sub (together with all exhibits and schedules
thereto as of the date hereof, the “Reorganization
Agreement”). It is contemplated that, promptly following the
Merger, TWP LLC will merge with and into TWP Group, such that the
separate existence of TWP LLC will cease and TWP Group will be the
surviving corporation (the “Subsequent Merger”), on the
terms and conditions provided in the agreement and plan of merger
to be dated as of or about the same date as the First Time of
Delivery (as defined below), between TWP LLC and TWP Group, a form
of which has been filed as Exhibit 2.2 to the Registration
Statement (as defined below). Accordingly, in this Agreement,
references to the “Company” as of any time prior to the
consummation of the Subsequent Merger shall be deemed to be
references to TWP LLC, and references to the “Company”
as of any time after consummation of the Subsequent Merger shall be
deemed to be references to TWP Group. In addition, references
herein to the “Reorganization Transactions” shall mean
all transactions contemplated by the Reorganization
Agreement.
1. (a) Each
of TWP LLC and TWP Group represents and warrants to, and agrees
with, each of the Underwriters that:
(i) A registration
statement on Form S-1 (File No. 333-129108) (the
“Initial Registration Statement”) in respect of the
Shares has been filed with the Securities and Exchange Commission
(the “Commission”); the Initial Registration Statement
and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto, to
you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a
“Rule 462(b) Registration Statement”), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the “Act”), which became effective upon
filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission
(any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act is
hereinafter called a “Preliminary Prospectus”; the
various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits
thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 7(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each
as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the
“Registration Statement”; the Preliminary Prospectus
relating to the Shares that was included in the Registration
Statement immediately prior to the Applicable Time (as defined in
Section 1(a)(iii) hereof) is hereinafter called the “Pricing
Prospectus”; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
“Prospectus”; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act
relating to the Shares is hereinafter called an “Issuer Free
Writing Prospectus”);
(ii) No order
preventing or suspending the use of any Preliminary Prospectus or
any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder,
and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Keefe, Bruyette & Woods, Inc. expressly for use therein
or by a Selling Stockholder expressly for use in the preparation of
the answers therein to Items 7 and 11(m) and (n) of Form
S-1;
(iii) For the
purposes of this Agreement, the “Applicable Time” is
___:___ __m (Eastern time) on the date of this Agreement. The
Pricing Prospectus, as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made,
not
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misleading; and
each Issuer Free Writing Prospectus listed on Schedule III
hereto does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus
and each such Issuer Free Writing Prospectus, as supplemented by
and taken together with the Pricing Prospectus as of the Applicable
Time, did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or
omissions made in an Issuer Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through Keefe, Bruyette & Woods, Inc.
expressly for use therein;
(iv) The
Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Keefe, Bruyette
& Woods, Inc. expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers
therein to Items 7 and 11(m) and (n) of Form S-1;
(v) Neither the
Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements of TWP LLC included in the
Pricing Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus, except for such loss or
interference as would not, individually or in the aggregate, have a
material adverse effect on the business, prospects, operations,
assets, condition (financial or otherwise), members’ or
stockholders’ equity (as applicable) or results of operations
of the Company and its consolidated subsidiaries taken as a whole
(a “Material Adverse Effect”); and, since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any change in the membership interests or capital stock (as
applicable) or long-term debt of the Company or any of its
subsidiaries (other than in connection with the Reorganization
Transactions) or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the business, operations, assets, condition (financial or
otherwise) or results of operations of the Company and its
consolidated subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Pricing Prospectus;
(vi) The Company
and its subsidiaries have good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Pricing Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company 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
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such exceptions
as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company
and its subsidiaries;
(vii) TWP Group
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Pricing Prospectus, and
has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(viii) TWP LLC has
been duly formed and is validly existing as a limited liability
company under the laws of the State of Delaware, with power and
authority (company and other) to own its properties and conduct its
business as described in the Pricing Prospectus, and has been duly
qualified as a foreign limited liability company for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(ix) Each
Specified Subsidiary of the Company has been duly formed,
incorporated or organized and is validly existing and in good
standing under the laws of its jurisdiction of formation,
incorporation or organization; and each Specified Subsidiary has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business except where the absence of such qualification or good
standing would not, individually or in the aggregate, have a
Material Adverse Effect. For purposes of this Agreement, the term
“Specified Subsidiaries” shall mean Thomas Weisel
Partners LLC, a Delaware limited liability company, Thomas Weisel
Capital Management LLC, a Delaware limited liability company,
Thomas Weisel Asset Management LLC, a Delaware limited liability
company and Thomas Weisel Partners Insurance Services LLC, a
Delaware limited liability company.
(x) The Company
has an authorized capitalization as set forth in the Pricing
Prospectus, and all of the issued shares of capital stock or
limited liability company membership interests (as applicable) of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and all of the issued shares of
capital stock of TWP Group conform to the description of the Stock
contained in the Pricing Prospectus and the Prospectus; and all of
the issued limited liability company membership interests or other
ownership interests of each subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and
(except for directors’ qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except to such extent as would
not, individually or in the aggregate, have a Material Adverse
Effect;
(xi) The Shares
have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and non-assessable and will
conform to the description of the Stock contained in the Pricing
Prospectus and the Prospectus;
(xii) The issue
and sale of the Shares to be sold by TWP Group and the compliance
by TWP LLC and TWP Group with all of the provisions of this
Agreement and the Reorganization Agreement and the consummation of
the transactions herein and therein contemplated will
not
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conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give rise to a
right of termination under any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which TWP LLC or
TWP Group or any of their respective subsidiaries is a party or by
which TWP LLC or TWP Group or any of their respective subsidiaries
is bound or to which any of the property or assets of TWP LLC or
TWP Group or any of their respective subsidiaries is subject,
except for such breaches or violations as would not, individually
or in the aggregate, have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the
organizational documents of TWP LLC or the Certificate of
Incorporation or By-laws of the TWP Group or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties;
(xiii) No consent,
approval, authorization, order, registration, qualification,
permit, license, exemption, filing or notice (each an
“Authorization”) of, from, with or to any court,
tribunal, government, governmental or regulatory authority,
self-regulatory organization or body (each, a “Regulatory
Body”) is required for the issue and sale of the Shares or
the consummation by TWP LLC or TWP Group of the transactions
contemplated by this Agreement or the Reorganization Agreement,
except (i) the registration of the Shares under the Act and the
Securities and Exchange Act of 1934, as amended (the
“Exchange Act”) (ii) the listing of the Shares for
quotation on the Nasdaq Stock Market, Inc.’s National Market
(“NASDAQ”), (iii) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(iv) such Authorizations (including such Authorizations as may
be required by the National Association of Securities Dealers, Inc.
(the “NASD”) pursuant to NASD Rule 1017 or
otherwise) as have been obtained or made by TWP LLC, TWP Group, and
their respective affiliates (or, solely in the case of such
Authorizations as may be required to be obtained under NASD
Rule 1017, as shall have been obtained prior to the First Time
Delivery (as defined in Section 5 hereof)) and (v) such
other Authorizations the absence of which would not, individually
or in the aggregate, have a Material Adverse Effect; such
Authorizations referenced in clause (iv) are in effect (or,
solely in the case of such Authorizations as may be required to be
obtained under NASD Rule 1017, shall be in effect prior to and
as of the First Time of Delivery), and no event has occurred that
allows or results in, or after notice or lapse of time or both
would allow or result in, revocation, suspension, termination or
invalidation of any such Authorization or any other impairment of
the rights of the holder or maker of any such Authorization; and
other than as may be set forth in the Pricing Prospectus, such
Authorizations referenced in clause (iv) contain no
restrictions that are materially more burdensome than those imposed
on the Company and its affiliates immediately prior to the date of
this Agreement;
(xiv) All
corporate and limited liability company approvals (including those
of stockholders or members) necessary for TWP LLC and TWP Group, to
consummate the transactions contemplated in this Agreement and the
Reorganization Agreement have been obtained and are in
effect;
(xv)
[Intentionally omitted.]
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(xvi) The Company
and its subsidiaries have obtained or made all Authorizations from,
to or with all Regulatory Bodies as are required to conduct their
respective businesses as described in the Pricing Prospectus and
the Prospectus, and no event has occurred that allows or results
in, or after notice or lapse of time or both would allow or result
in, revocation, suspension, termination or invalidation of any such
Authorization or any other impairment of the rights of the holder
or maker of any such Authorization; and the Company and its
subsidiaries are members in good standing of each Federal, state or
foreign exchange, board of trade, clearing house or association and
self-regulatory or similar organization, in each case as necessary
to conduct their respective businesses as described in the Pricing
Prospectus and the Prospectus, except to such extent as would not,
individually or in the aggregate, have a Material Adverse
Effect;
(xvii) It is not
necessary in connection with the grant, issuance, offer, sale and
delivery of the securities to be issued by the TWP Group pursuant
to the Reorganization Agreement to register any such securities
under the Act, or to qualify any indenture under the Trust
Indenture Act of 1939, as amended;
(xviii) Neither
the Company nor any of its subsidiaries is (A) in violation of
its Certificate of Incorporation or By-laws or other organizational
documents or (B) in default in the performance or observance
of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except
for such defaults specified under subparagraph (B) herein that
would not, individually or in the aggregate, have a Material
Adverse Effect;
(xix) The
statements set forth in the Pricing Prospectus and the Prospectus
under the caption “Description of Capital Stock”,
insofar as they purport to constitute a summary of the terms of the
Stock, under the caption “Material United States Federal Tax
Consequences for Non-U.S. Holders of Common Stock”, and under
the caption “Underwriting”, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(xx) Other than as
set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, could
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xxi) The Company
is not and, after giving effect to the offering and sale of the
Shares, will not be an “investment company”, as such
term is defined in the Investment Company Act of 1940, as amended
(the “Investment Company Act”);
(xxii) At the time
of filing the Initial Registration Statement, the Company was not
an “ineligible issuer,” as defined in Rule 405
under the Act;
(xxiii) Deloitte
& Touche LLP, who have certified certain financial statements
of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder;
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(xxiv) The
financial statements of the Company and its subsidiaries (including
all notes and schedules thereto) included in the Registration
Statement, the Pricing Prospectus and Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries
at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its
subsidiaries for the periods specified in conformity with generally
accepted accounting principles, consistently applied throughout the
periods involved. The summary and selected financial data included
in the Registration Statement, the Pricing Prospectus and the
Prospectus presents fairly the information shown therein as at the
respective dates and for the respective periods specified and are
derived from the consolidated financial statements set forth in the
Registration Statement, the Pricing Prospectus and the Prospectus
and other financial information;
(xxv) The Company
maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act)
that complies with the requirements of the Exchange Act and has
been designed by the Company’s principal executive officer
and principal financial officer, or under their supervision
, to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted
accounting principles. The Company’s internal control over
financial reporting is effective and the Company is not aware of
any material weaknesses in its internal control over financial
reporting (other than as set forth in the Pricing
Prospectus);
(xxvi) Since the
date of the latest audited financial statements of TWP LLC included
in the Pricing Prospectus, there has been no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial reporting
(other than as set forth in the Pricing Prospectus);
(xxvii) No
relationship, direct or indirect, exists between or among the
Company, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company, on the other
hand, which is required to be described in the Registration
Statement, the Pricing Prospectus and the Prospectus and which is
not so described. There are no outstanding loans, advances or
guarantees of indebtedness by the Company to or for the benefit of
any of the executive officers or directors of the Company, except
as disclosed in the Registration Statement, the Pricing Prospectus
and the Prospectus;
(xxviii) To the
actual knowledge of the Company, no person associated with or
acting on behalf of the Company, including without limitation any
director, officer, agent or employee of the Company or its
subsidiaries has, directly or indirectly, while acting on behalf of
the Company or its subsidiaries (i) used any corporate funds
for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity, (ii) made any
unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns
from corporate funds, (iii) violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended or (iv) made
any other unlawful payment;
(xxix) Except as
contemplated by this Agreement and as disclosed in the Registration
Statement, the Pricing Prospectus and the Prospectus, no person is
entitled to receive from the Company a brokerage commission,
finder’s fee or other like payment in connection with the
transactions contemplated herein;
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(xxx) Neither the
Company nor any of its subsidiaries or controlled affiliates does
business with the government of, or with any person located in any
country in a manner that violates in any material respect any of
the economic sanctions programs or similar sanctions-related
measures of the United States as administered by the United States
Treasury Department’s Office of Foreign Assets Control; and
the net proceeds from this offering will not be used to fund any
operations in, finance any investments in or make any payments to
any country, or to make any payments to any person, in a manner
that violates any of the economic sanctions of the United States
administered by the United States Treasury Department’s
Office of Foreign Assets Control; and
(xxxi) Neither the
Company nor any of its subsidiaries or controlled affiliates does
business with the government of Cuba or with any person located in
Cuba within the meaning of Section 517.075, Florida
Statutes.
(b) Each of the
Selling Stockholders severally and not jointly represents and
warrants to, and agrees with, each of the Underwriters
that:
(i) All consents,
approvals, authorizations and orders necessary for the execution
and delivery by such Selling Stockholder of this Agreement, and for
the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; and such Selling
Stockholder has full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Shares to
be sold by such Selling Stockholder hereunder;
(ii) The sale of
the Shares to be sold by such Selling Stockholder hereunder and the
compliance by such Selling Stockholder with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or
By-laws of such Selling Stockholder if such Selling Stockholder is
a corporation, the Partnership Agreement of such Selling
Stockholder if such Selling Stockholder is a partnership, or any
other organizational and/or governing document of such Selling
Stockholder if such Selling Stockholders is not a natural person,
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder, except for
such breaches, defaults or violations that would not have an
adverse effect on the ability of such Selling Stockholder to
perform its obligations under this Agreement;
(iii) Such Selling
Stockholder has, at the time of the execution of this Agreement,
good and valid title to all membership interests held by it in TWPG
LLC, and immediately prior to each Time of Delivery (as defined in
Section 5 hereof) such Selling Stockholder will have, good and
valid title to the Shares to be sold by such Selling Stockholder
hereunder, free and clear of all liens, encumbrances, equities or
claims; and, upon delivery of such Shares and payment therefor
pursuant hereto, good and valid title to such Shares, free and
clear of all liens, encumbrances, equities or claims, will pass to
the several Underwriters;
(iv) During the
period beginning from the date hereof and continuing to and
including the date 180 days after the date of the Prospectus
(the initial “Lock-Up Period”) used to sell the Shares
(the “Public Offering Date”), not to offer, sell,
contract to sell, pledge (except a pledge for
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the benefit of
the Company pursuant to an agreement entered or to be entered into
between the Company and such Selling Stockholder), grant any option
to purchase, make any short sale or otherwise dispose of, any
shares of Common Stock of the Company, or any options or warrants
to purchase any shares of Common Stock of the Company, or any
securities convertible into, exchangeable for or that represent the
right to receive shares of Common Stock of the Company, whether now
owned or hereafter acquired, owned directly by the undersigned
(including holding as a custodian) or with respect to which the
undersigned has beneficial ownership within the rules and
regulations of the SEC (collectively the “Selling Stockholder
Securities”). The foregoing restriction is expressly agreed
to preclude such Selling Stockholder from engaging in any hedging
or other transaction which is designed to or which reasonably could
be expected to lead to or result in a sale or disposition of the
Selling Stockholder Securities even if such Selling Stockholder
Securities would be disposed of by someone other than the Selling
Stockholder. Such prohibited hedging or other transactions would
include without limitation any short sale or any purchase, sale or
grant of any right (including without limitation any put or call
option) with respect to any of the Selling Stockholder Securities
or with respect to any security that includes, relates to, or
derives any significant part of its value from such Selling
Stockholder Securities, without your prior written consent;
provided, however, that the restrictions contained in this
Section 1(b)(iv) shall not apply to any of the Selling
Stockholder’s Shares being sold hereunder, and; provided
further, however, that if (1) during the last 17 days of
the initial Lock-Up Period, the Company releases earnings results
or announces material news or a material event or (2) prior to
the expiration of the initial Lock-Up period, the Company announces
that it will release earnings results during the 15-day period
following the last day of the initial Lock-Up Period, then in each
case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of
the earnings results or the announcement of the material news or
material event, as applicable, unless Keefe, Bruyette & Woods,
Inc. and the Company waive, in writing, such extension; such
Selling Stockholder hereby acknowledges that the Company has agreed
herein to provide written notice of any event that would result in
an extension of the Lock-Up Period pursuant to the previous
sentence to such Selling Stockholder (in accordance with
Section 16 herein) and agrees that any such notice properly
delivered will be deemed to have been given to, and received by,
the Selling Stockholder; such Selling Stockholder hereby further
agrees that, prior to engaging in any transaction or taking any
other action that is subject to the terms of this provision during
the period from the date hereof to and including the 34th day
following the expiration of the initial Lock-Up Period, it will
give notice thereof to the Company and will not consummate such
transaction or take any such action unless it has received written
confirmation from the Company (which confirmation will be deemed
given if the Selling Stockholder does not receive written
instructions to the Company within 48 hours of the notice to the
Company) that the Lock-Up Period (as such may have been extended
pursuant to the previous paragraph) has expired. Notwithstanding
the foregoing, if any holder of at least 5% of the Company’s
outstanding securities is released, in whole or in part, by the
Company or any Underwriter from restrictions substantially similar
to those set forth in this Section 1(b)(iv), the Selling
Stockholders shall be released (on a pro rata basis) from their
respective lock-up restrictions as well.
Notwithstanding
the foregoing, the Selling Stockholders may transfer their Shares
with the prior written consent of Keefe, Bruyette & Woods, Inc.
on behalf of the Underwriters. Notwithstanding the foregoing, if
such Selling Stockholder is a natural person, the person may
transfer the capital stock of the Company to any member of such
person’s immediate family, provided, however, that in any
such case, it shall be a condition to the transfer that the
transferee
9
execute an
agreement stating that the transferee is receiving and holding such
capital stock subject to the provisions of this Agreement and there
shall be no further transfer of such capital stock except in
accordance with this Agreement, and provided further that any such
transfer shall not involve a disposition for value. For purposes of
this Agreement, “immediate family” shall mean any
relationship by blood, marriage or adoption, not more remote than
first cousin. In addition, notwithstanding the foregoing, if such
Selling Stockholder is an entity, the entity may transfer the
capital stock of the Company to any wholly-owned subsidiary of such
entity; provided, however, that in any such case, it shall be a
condition to the transfer that the transferee execute an agreement
stating that the transferee is receiving and holding such capital
stock subject to the provisions of this Agreement and there shall
be no further transfer of such capital stock except in accordance
with this Agreement, and provided further that any such transfer
shall not involve a disposition for value. Such Selling Stockholder
also agrees and consents to the entry of stop transfer instructions
with the Company’s transfer agent and registrar against the
transfer of the Selling Stockholder Securities except in compliance
with the foregoing restrictions;
The provisions of
this Section 1(b)(iv) shall lapse and become null and void (i)
upon written notice from the Company to Keefe, Bruyette &
Woods, Inc. that the Company does not intend to proceed with the
public offering, (ii) the Public Offering Date shall not have
occurred on or before May 31, 2006, (iii) if any holder
of at least 5% of the Company’s outstanding securities
(including convertible securities) or any executive officer or
director of the Company fails to sign an agreement containing
restrictions substantially similar to those contained in this
Section 1(b)(iv) or (iv) if the Reorganization Agreement
terminates for any reason; provided that in the case of (ii), the
Company may, by written notice to you prior to May 31, 2006,
extend such date to July 14, 2006;
(v) Such Selling
Stockholder has not taken and will not take, directly or
indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares;
(vi) To the extent
that any statements or omissions made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by
such Selling Stockholder expressly for use therein, such
Preliminary Prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become
effective or are filed with the Commission, as the case may be,
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading; and
(vii) In order to
document the Underwriters’ compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated,
such Selling Stockholder will deliver to you prior to or at the
First Time of Delivery (as defined in Section 5) a properly
completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
2. Subject to
the terms and conditions herein set forth, (a) the Company and
each of the Selling Stockholders agree, severally and not jointly,
to sell to each of the Underwriters, and each of the
Underwriters
10
agrees,
severally and not jointly, to purchase from the Company and each of
the Selling Stockholders, at a purchase price per share of $
• , the number of Firm Shares (to be adjusted by you
so as to eliminate fractional shares) determined by multiplying the
aggregate number of Firm Shares to be sold by the Company and each
of the Selling Stockholders as set forth opposite their respective
names in Schedule II hereto by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter
in Schedule I hereto and the denominator of which is the
aggregate number of Firm Shares to be purchased by all of the
Underwriters from the Company and all of the Selling Stockholders
hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional
Shares as provided below, each of the Selling Stockholders agree,
severally and not jointly, to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, at the purchase
price per share set forth in clause (a) of this
Section 2, that portion of the number of Optional Shares as to
which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction the numerator of which
is the maximum number of Optional Shares which such Underwriter is
entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which
is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Selling
Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the
Underwriters the right to purchase at their election up to 750,000
Optional Shares, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering sales of shares
in excess of the number of Firm Shares. Any such election to
purchase Optional Shares shall be made in proportion to the number
of Optional Shares to be sold by each Selling Stockholder. Any such
election to purchase Optional Shares may be exercised only by
written notice from you to the Attorneys-in-Fact, given within a
period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be
delivered, as determined by you but in no event earlier than the
First Time of Delivery (as defined in Section 5 hereof) or,
unless you and the Attorneys-in-Fact otherwise agree in writing,
earlier than two or later than ten business days after the date of
such notice.
3. Upon the
authorization by you of the release of the Firm Shares, the several
Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
4. The
Company hereby confirms its engagement of Keefe, Bruyette &
Woods, Inc. as, and Keefe, Bruyette & Woods, Inc. hereby
confirms its agreement with the Company to render services as, a
“qualified independent underwriter” within the meaning
of Rule 2720(b)(15) of the National Association of Securities
Dealers, Inc. (the “NASD”) with respect to the offering
and sale of the Shares. Keefe, Bruyette & Woods, Inc., in its
capacity as qualified independent underwriter and not otherwise, is
referred to herein as the “QIU”. As compensation for
the services of the QIU hereunder, the Company agrees to pay the
QIU $ • on the First Time of Delivery.
5. (a) The
Shares to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Shares in book-entry
form which will be deposited by or on behalf of the Company with
the Depository Trust Company (“DTC”) or its designated
custodian. The Company will deliver the Shares to Thomas Weisel
Partners LLC and Keefe, Bruyette & Woods, Inc., for the account
of each Underwriter, against payment by or on behalf of each such
Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company
and each of the Selling Stockholders, as their interests may
appear, to Thomas Weisel Partners LLC and Keefe, Bruyette &
Woods, Inc. by causing DTC to credit the Shares to the account of
Thomas Weisel Partners LLC at DTC. The time and date of such
delivery
11
and payment
shall be, with respect to the Firm Shares, • a.m., New
York time, on • , 2006 or such other time and date as
Thomas Weisel Partners LLC and Keefe, Bruyette & Woods, Inc.
may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York time, on the date specified by Thomas
Weisel Partners LLC and Keefe, Bruyette & Woods, Inc. in the
written notice given by Thomas Weisel Partners LLC and Keefe,
Bruyette & Woods, Inc. of the Underwriters’ election to
purchase such Optional Shares, or such other time and date as
Thomas Weisel Partners LLC and Keefe, Bruyette & Woods, Inc.
may agree upon in writing. Such time and date for delivery of the
Firm Shares is herein called the “First Time of
Delivery”, such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the
“Second Time of Delivery”, and each such time and date
for delivery is herein called a “Time of
Delivery”.
(b) The documents
to be delivered at each Time of Delivery by or on behalf of the
parties hereto pursuant to Section 10 hereof, including the
cross receipt for the Shares and any additional documents requested
by the Underwriters pursuant to Section 10(l) hereof, will be
delivered at the offices of TWP Group: Thomas Weisel Partners
Group, Inc., One Montgomery Street, San Francisco, California 94104
(the “Closing Location”), and the Shares will be
delivered at the Designated Office, all at such Time of Delivery. A
meeting will be held at the Closing Location at •
p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the
purposes of this Section 5, “New York Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive
order to close.
6. Each of
the Company and the Selling Stockholders acknowledges and agrees
that (i) the purchase and sale of the Shares pursuant to this
Agreement is an arm’s-length commercial transaction between
the Company and the Selling Stockholders, on the one hand, and the
several Underwriters, on the other, (ii) in connection
therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or
fiduciary of the Company or the Selling Stockholders, (iii) no
Underwriter has assumed an advisory or fiduciary responsibility in
favor of the Company or the Selling Stockholders with respect to
the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is
currently advising the Company or the Selling Stockholders on other
matters) or any other obligation to the Company or the Selling
Stockholders except the obligations expressly set forth in this
Agreement and (iv) each of the Company and the Selling
Stockholders has consulted its own legal and financial advisors to
the extent it deemed appropriate. Each of the Company and the
Selling Stockholders agrees that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to the
Company or the Selling Stockholders, in connection with such
transaction or the process leading thereto.
This Agreement
supersedes all prior agreements and understandings (whether written
or oral) between the Company and the Selling Stockholders, on the
one hand, and the Underwriters, or any of them, on the other, with
respect to the subject matter hereof.
Each of the
Company and the Selling Stockholders and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
7. TWP Group
agrees with each of the Underwriters:
(a) To prepare the
Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may
12
be required by
Rule 430A(a)(3) under the Act; to make no further amendment or
any supplement to the Registration Statement or the Prospectus
prior to the last Time of Delivery which shall be disapproved by
you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you with copies thereof;
to file promptly all material required to be filed by the Company
with the Commission pursuant to Rule 433(d) under the Act; to
advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
other prospectus in respect of the Shares, of the suspension of the
qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use its best efforts
to obtain the withdrawal of such order;
(b) Promptly from
time to time to take such action as you may reasonably request to
qualify the Shares for offering and sale under the securities laws
of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction;
(c) Prior to
10:00 A.M., New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time,
to furnish the Underwriters with written and electronic copies of
the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act)
is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time any events shall
have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus in
order to comply with the Act, to notify you and upon your request
to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many written and electronic copies as
you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case
any Underwriter is required to deliver a prospe
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