Exhibit 1.1
[ —
] Shares
PALM, INC.
COMMON STOCK, $0.001 PAR VALUE
PER SHARE
UNDERWRITING
AGREEMENT
[ —
], 2009
[ —
], 2009
J.P. Morgan Securities
Inc.
Goldman, Sachs & Co.
As Representatives of the Several
Underwriters Listed on Schedule I
c/o J.P. Morgan Securities Inc.
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Palm, Inc., a Delaware corporation
(the “ Company ”), proposes to sell to the
several Underwriters named in Schedule I hereto (the “
Underwriters ”) an aggregate of [ —
] shares (the “ Firm
Shares ”) of Common Stock, par value $0.001 per share, of
the Company (the “ Common Stock ”).
The Company also proposes to issue
and sell to the several Underwriters not more than an additional
[ —
] shares of its Common Stock (the
“ Additional Shares ”) 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 2 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the “
Shares .”
The Company has prepared and filed
with the Securities and Exchange Commission (the “
Commission ”) a registration statement on
Form S-3 (File No. 333-154941), which contains a base
prospectus (the “ Base Prospectus ”), to be used
in connection with the public offering and sale of the
Shares. Such registration statement, as amended, including the
financial statements, exhibits and schedules thereto, at each time
of effectiveness under the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder
(collectively, the “ Securities Act ”),
including any required information deemed to be a part thereof at
the time of effectiveness pursuant to Rule 430B under the
Securities Act or the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder
(collectively, the “ Exchange Act ”), is called
the “ Registration Statement .” Any
preliminary prospectus supplement to the Base Prospectus that
describes the Shares and the offering thereof and is used prior to
filing of the Prospectus is called, together with the Base
Prospectus, a “ preliminary prospectus
.” The term “ Prospectus ” shall mean
the final prospectus supplement relating to the Shares (the “
Prospectus Supplement ”), together with the Base
Prospectus, that is first filed pursuant to
Rule 424(b) after
the date and time that this Agreement is
executed and delivered by the parties hereto. All references
in this Agreement to the Registration Statement, a preliminary
prospectus, the Prospectus, or any amendments or supplements to any
of the foregoing, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System or any successor system thereto.
For purposes of this Agreement,
“ free writing prospectus ” has the meaning set
forth in Rule 405 under the Securities Act, “ Time of Sale
Prospectus ” means the preliminary prospectus together
with the free writing prospectuses, if any, each identified in
Schedule II 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. The terms “
supplement ,” “ amendment ,” and
“ amend ” as used herein with respect to the
Registration Statement, the Base Prospectus, the Time of Sale
Prospectus, any preliminary prospectus or free writing prospectus
shall include all documents subsequently filed by the Company with
the Commission pursuant to the Exchange Act that are deemed to be
incorporated by reference therein.
1. Representations and Warranties
of the Company . The Company represents and warrants to and
agrees with each of the Underwriters that:
(a) The Registration Statement is
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or 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 4), the Time of Sale Prospectus, as
then amended or supplemented by the Company, if applicable, will
not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, (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
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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.
(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 II 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) The Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct
its business as described in the Time of Sale Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each subsidiary of the Company
has been duly organized, is validly existing and in good standing
under the laws of the jurisdiction of organization (to the extent
such concepts are applicable under such laws), has the corporate
power and authority to own its property and to conduct its business
as and to the extent 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 (to
the extent such concepts are applicable in such jurisdiction),
except to the extent that it would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all
of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued,
are
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fully paid and non-assessable and are owned
directly or indirectly by the Company, except to the extent that it
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(f) This Agreement has been duly
authorized, executed and delivered by the Company.
(g) The authorized capital stock of
the Company conforms as to legal matters to the description thereof
contained in each of the Time of Sale Prospectus and the
Prospectus.
(h) The shares of Common Stock
outstanding prior to the issuance of the Shares to be sold by the
Company have been duly authorized and are validly issued, fully
paid and non-assessable.
(i) The Shares to be sold by the
Company have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights for
which the Company has not received a valid waiver of such
rights.
(j) The execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any provision
of applicable law or the certificate of incorporation or by-laws of
the Company or 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 qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may
(i) have previously been made or obtained, (ii) be
required under the Securities Act or Exchange Act, and
(iii) be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Shares.
(k) There has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of
Sale Prospectus.
(l) There are no legal or
governmental proceedings pending or 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
other than (i) proceedings accurately described in all
material respects in the Time of Sale Prospectus and proceedings
that would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, or on the power or ability
of
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the Company to perform its obligations under
this Agreement or to consummate the transactions contemplated by
the Time of Sale Prospectus or (ii) proceedings that are
required to be described in the Registration Statement or the
Prospectus and are not so described; and there are no statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not
described or filed as required.
(m) Each preliminary prospectus
filed as part of the registration statement as originally filed or
as part of any amendment thereto, or filed pursuant to
Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(n) The Company is not, and after
giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus
will not be, required to register as an “investment
company” as such term is defined in the Investment Company
Act of 1940, as amended.
(o) The Company and its subsidiaries
(i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“
Environmental Laws ”), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) There are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(q) There are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement for which the Company has not received a valid waiver of
such rights.
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(r) To the knowledge of the Company
or except as disclosed in the Time of Sale Prospectus, the Company
and its subsidiaries own or possess, or can acquire on reasonable
terms, all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now
operated by them, except where the failure to own, possess or
acquire any of the foregoing would not result in a material adverse
effect on the Company and its subsidiaries, taken as a whole; and,
except as described in the Time of Sale Prospectus, neither the
Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with
respect to any of the foregoing that, individually or in the
aggregate, would reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(s) The Company has filed a free
writing prospectus containing (i) certain historical Non-GAAP
financial measures circled on the attached Annex A (“
Historical Financial Data ”) and (ii) certain
forward-looking Non-GAAP financial measures circled on the attached
Annex B (“ Guidance Data ”). The Historical
Financial Data has been derived from the Company’s books and
records. The Company is not aware of any facts or circumstances
that would lead it to believe that the Historical Financial Data is
not accurately derived in all material respects from the
Company’s books and records. The Guidance Data has been
developed in good faith based on assumptions management considers
reasonable and represents management’s current good faith
estimate of a range of outcomes.
(t) None of the forward-looking
non-GAAP financial measures of the Company referenced in Annex B is
accessible on a GAAP basis. The Company has disclosed that fact and
provided the reconciling information that is available without
unreasonable effort. The Company has identified the information
that is unavailable and disclosed its probable
significance.
2. Agreements to Sell and
Purchase . The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly,
to purchase from the Company at a price of $[ —
] a share (the “ Purchase
Price ”) the number of Firm Shares set forth in Schedule
I hereto opposite the name of such Underwriter. The Purchase Price
represents a public offering price of $[ —
] a share (the “ Public
Offering Price ”) after discounts and commissions of
$[ —
] a share (the “
Discount ”).
On the basis of the representations
and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to sell to the
Underwriters the Additional Shares, and the Underwriters shall have
the right
6
to purchase, severally and not jointly, up to an
aggregate of [ —
] Additional Shares at a purchase
price per share equal to 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.
Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. On each day, if
any, on which 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 I hereto
opposite the name of such Underwriter bears to the total number of
Firm Shares.
The Company hereby agrees that,
without the prior written consent of J.P. Morgan Securities Inc.
(“ J.P. Morgan ”) and Goldman, Sachs &
Co. (“ Goldman Sachs ”), it will not, during the
period ending 60 days after the date of the Prospectus Supplement,
(1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise or (3) file any
registration statement with the Commission relating to the offering
of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock.
The restrictions contained in the
preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) the issuance by the Company of shares of
Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which
the Underwriters have been advised in writing, (c) the
issuance by the Company of shares of restricted stock or options or
other securities authorized for issuance under employee benefit
plans in effect on the date hereof and filed with the Commission or
as proposed in the Company’s proxy statement for the 2009
annual meeting of stockholders filed with the Commission, for which
the forms of such plans have been filed with the Commission (the
“ New Plans ”), or (d) the filing by the
Company of a registration statement on Form S-8 for the
registration of shares of Common Stock issuable in connection with
grants made under employee benefit plans in effect on the date
hereof and filed with the Commission or under the New
Plans.
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3. Terms of Public Offering .
The Company is advised by you that you propose to make a public
offering of the Shares as soon after this Agreement has become
effective as in your judgment is advisable.
4. Payment and Delivery .
Payment for the Firm Shares to be sold by the Company shall be made
to the Company in Federal or other funds immediately available in
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 [ —
], 2009, or at such other time on
the same or such other date, not later than [ —
], 2009, as shall be designated in
writing by you, in the amount equal to the sum of (a) the
product of the Firm Shares multiplied by the Purchase Price and
(b) the product of the Discount multiplied by the sum of the
number of Firm Shares purchased from the Underwriters by Elevation
Partners, L.P. and Elevation Employee Side Fund, LLC and the
Company’s executive officers and directors. The time and date
of such payment are hereinafter referred to as the “
Closing Date .”
Payment for any Additional Shares
shall be made to the Company in Federal or other funds immediately
available in New York City against delivery of such Additional
Shares for the respective account
