Exhibit 1.1
4,100,000 Shares
Tessera Technologies,
Inc.
Common Stock
UNDERWRITING
AGREEMENT
March , 2004
L EHMAN B ROTHERS I NC
.
M ERRILL L YNCH ,
P IERCE , F ENNER &
S MITH I NCORPORATED
P IPER J AFFRAY & C O .
SG C OWEN S ECURITIES C ORPORATION
W ACHOVIA C APITAL M ARKETS ,
LLC
As Representatives of the
several
Underwriters
named in Schedule 1,
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Dear Sirs:
Certain stockholders of Tessera
Technologies, Inc., a Delaware corporation (the “
Company ”) named in Schedule 2 hereto (the “
Selling Stockholders ”) propose to sell an aggregate
of 4,100,000 shares (the “ Firm Stock ”) of the
Company’s Common Stock, par value $0.001 per share (the
“ Common Stock ”).
It is understood that, subject to
the conditions hereinafter stated, 4,100,000 shares of the Firm
Stock will be sold to the several Underwriters named in Schedule 1
hereto (the “ Underwriters ”) in connection with
the offering and sale of such Firm Stock. Lehman Brothers Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Piper
Jaffray & Co., SG Cowen Securities Corporation and Wachovia
Capital Markets, LLC shall act as representatives (the “
Representatives ”) of the several
Underwriters.
In addition, the Selling
Stockholders (the “ Option Selling Stockholders
”) propose to grant to the Underwriters an option to purchase
up to an aggregate of an additional 615,000 shares of the Common
Stock (the “ Option Stock ”), as set forth more
specifically in Section 3 of this Agreement. The Firm Stock and the
Option Stock, if purchased, are hereinafter collectively called the
“ Stock .” This is to confirm the agreement
concerning the purchase of the Stock from the Selling Stockholders
by the Underwriters.
SECTION 1. Representations,
Warranties and Agreements of the Company. The Company
represents, warrants and agrees that:
(a) A registration statement on Form
S-1 with respect to the Company, the Selling Stockholders and the
Stock has (i) been prepared by the Company in
conformity with the requirements of the
Securities Act of 1933, as amended (the “ Securities
Act ”), and the rules and regulations (the “
Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act.
Copies of such registration statement and each of the amendments
thereto have been delivered by the Company to you. As used in this
Agreement, “ Effective Time ” means the date and
the time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was declared
effective by the Commission; “ Effective Date ”
means the date of the Effective Time; “ Preliminary
Prospectus ” means each prospectus included in such
registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with
the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules and
Regulations; “ Registration Statement ” means
such registration statement, as amended at the Effective Time,
including all information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations and deemed to be a part of the registration statement
as of the Effective Time pursuant to Rule 430A of the Rules and
Regulations; and “ Prospectus ” means the
prospectus in the form first used to confirm sales of Stock. If the
Company has filed 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. The Commission has not issued
any order preventing or suspending the use of any Preliminary
Prospectus.
(b) The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will,
when they become effective or are filed with the Commission, as the
case may be, conform in all material respects to the requirements
of the Securities Act and the Rules and Regulations and the
Registration Statement and any amendment thereto does not and will
not, as of the applicable effective date, 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, and the Prospectus and any amendment or
supplement thereto will not, as of the applicable filing date and
each Delivery Date, 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
that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion
therein.
(c) The Company and each of its
subsidiaries (as defined in Section 17) have been duly incorporated
and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, have all
power and
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authority necessary to own or hold their
respective properties and to conduct the businesses in which they
are engaged, and are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which
their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, except
where the failure to be so qualified or in good standing would not
reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole. None of the
subsidiaries of the Company other than Tessera, Inc. is a “
significant subsidiary ,” as such term is defined in
Rule 405 of the Rules and Regulations.
(d) The Company has an authorized
capitalization as set forth in the Prospectus, and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the Prospectus;
and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims. Except as set forth in the
Prospectus, no options, warrants or other rights to purchase or
other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding. All options,
warrants and other rights to purchase shares of capital stock have
been duly and validly authorized and issued, were issued in
compliance with federal and state securities laws, including, but
not limited to, compliance with the California Corporations Code,
and conform to the description thereof contained in the
Prospectus.
(e) This Agreement has been duly
authorized, executed and delivered by the Company.
(f) The execution, delivery and
performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby 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 indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries 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 or
assets; and except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”) and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Stock by the Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby.
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(g) Except as described in the
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 owned
or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act. The holders of outstanding shares of the
Company’s capital stock are not entitled to preemptive or
other rights to subscribe for the Stock.
(h) Except as described in the
Prospectus, the Company has not sold or issued any shares of Common
Stock during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of the Securities Act, other than shares issued
pursuant to employee benefit plans, stock option plans or other
employee compensation plans or pursuant to outstanding options,
rights or warrants.
(i) Neither the Company nor any of
its subsidiaries has sustained, since the date of the latest
financial statements included in the Prospectus, any material 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 Prospectus; and,
since such date, there has not been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, consolidated financial position, stockholders’
equity, results of operations, business or prospects of the Company
and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus.
(j) The financial statements
(including the related notes and supporting schedules and any pro
forma financial statements) filed as part of the Registration
Statement or included in the Prospectus present fairly the
financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated (subject, in the case of unaudited financial statements,
to normal year-end adjustments), and have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved.
(k) PricewaterhouseCoopers, LLP, who
have certified certain financial statements of the Company, whose
report appears in the Prospectus and who have delivered the initial
letter referred to in Section 9(g) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations. Except as described in the Prospectus and as
preapproved in accordance with the requirements set forth in
Section 10A of the Exchange Act, since May 6, 2003,
PricewaterhouseCoopers LLP has not engaged in any “
prohibited activities ” (as defined in Section 10A of
the Exchange Act) on behalf of the Company.
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(l) The Company and each of its
subsidiaries have good and marketable title in fee simple to all
real property and 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
Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and all assets 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 interfere with the use made and proposed to be made of such
property and buildings by the Company and its
subsidiaries.
(m) The Company and each of its
subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties
and as is customary for companies engaged in similar businesses in
similar industries.
(n) Except as described in the
Prospectus, the Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights and licenses necessary for
the conduct of their respective businesses and have no reason to
believe that the conduct of their respective businesses will
conflict with, and have not received any notice of any claim of
conflict with, any such rights of others.
(o) Except as described in the
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 or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a material adverse
effect on the consolidated financial position, stockholders’
equity, results of operations, business or prospects of the Company
and its subsidiaries; and to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(p) There are no contracts or other
documents which are required to be described in the Prospectus or
filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been described
in the Prospectus or filed as exhibits to the Registration
Statement.
(q) 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 Prospectus which is not so described. Since July 30, 2002, the
Company has not, directly or indirectly, including through any
subsidiary, extended or maintained credit, or arranged for the
extension of credit, or renewed any extension of credit, in the
form of a personal loan to or for any of its directors or executive
officers.
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(r) No labor disturbance by the
employees of the Company or of any of its subsidiaries exists or,
to the knowledge of the Company, is imminent, which might be
expected to have a material adverse effect on the general affairs,
management, consolidated financial position, stockholders’
equity, results of operations, business or prospects of the Company
and its subsidiaries.
(s) The Company is in compliance in
all material respects with all presently applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
(“ ERISA ”); no “ reportable event
” (as defined in ERISA) has occurred with respect to any
“ pension plan ” (as defined in ERISA) for which
the Company would have any liability; the Company has not incurred
and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any “
pension plan ” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the “
Code ”); and each “ pension plan ”
for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such
qualification.
(t) The Company has filed all
federal, state and local income and franchise tax returns required
to be filed through the date hereof, except where the failure to
file such tax returns would not reasonably be expected to have a
material adverse effect on the consolidated financial position,
stockholders’ equity, results of operations, business or
prospects of the Company and its subsidiaries, and has paid all
taxes shown as due thereon. No deficiencies for taxes of the
Company or any of its subsidiaries which have had a material
adverse effect on the consolidated financial position,
stockholders’ equity, results of operations, business or
prospects of the Company and its subsidiaries have been assessed by
a tax authority, and, to the Company’s knowledge, no
deficiencies for taxes of the Company or any of its subsidiaries
which would reasonably be expected to have a material adverse
effect on the consolidated financial position, stockholders’
equity, results of operations, business or prospects of the Company
and its subsidiaries have been proposed by a tax
authority.
(u) Since the date as of which
information is given in the Prospectus through the date hereof, and
except as may otherwise be disclosed in the Prospectus, the Company
has not (i) issued or granted any securities, other than pursuant
to employee benefit plans, stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared
or paid any dividend on its capital stock.
(v) The Company (i) makes and keeps
books and records, which, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of the
Company’s assets, and (ii) maintains internal accounting
controls which provide
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reasonable assurance that (A) transactions are
executed in accordance with management’s authorization, (B)
transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets,
(C) access to its assets is permitted only in accordance with
management’s authorization and (D) the recorded
accountability for its assets is compared with existing assets at
reasonable intervals.
(w) Neither the Company nor any of
its subsidiaries (i) is in violation of its charter or by-laws,
(ii) is in default, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is subject
or (iii) is in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct
of its business, except, in the case of clauses (ii) and (iii), for
such defaults, violations or failures to obtain as would not
reasonably be expected to have a material adverse effect on the
consolidated financial position, stockholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(x) Neither the Company nor any of
its subsidiaries, nor any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or
any of its subsidiaries, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
unlawful bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(y) There has been no storage,
disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous
wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now
or previously owned or leased by the Company or its subsidiaries in
violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably
likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the
general affairs, management, consolidated financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind
onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes,
hazardous wastes or hazardous substances due to or caused by the
Company or any of its subsidiaries or with
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respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would
not have or would not be reasonably likely to have, singularly or
in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a material
adverse effect on the general affairs, management, consolidated
financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries; and the terms
“ hazardous wastes ”, “ toxic
wastes ”, “ hazardous substances ” and
“ medical wastes ” shall have the meanings
specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
(z) Neither the Company nor any
subsidiary is, or, as of the Closing Date, will be, an “
investment company ” as defined in the Investment
Company Act of 1940, as amended (the “ Investment Company
Act ”).
(aa) The Company has established and
maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15 under the Exchange Act), which (i) are
designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to
the Company’s principal executive officer and its principal
financial officer by others within those entities, particularly
during the periods in which the periodic reports required under the
Exchange Act are being prepared; (ii) have been evaluated for
effectiveness as of the end of the most recent fiscal quarter and
(iii) are effective in all material respects to perform the
functions for which they were established.
(bb) Based on the evaluation of its
internal control over financial reporting, the Company is not aware
of (i) any significant deficiency or material weakness in the
design or operation of internal control over financial reporting
which are reasonably likely to adversely affect the Company’s
ability to record, process, summarize and report financial
information; or (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role
in the Company’s internal control over financial
reporting.
(cc) There are no material
off-balance sheet arrangements (as defined in Regulation S-K Item
303(a)(4)(ii)) that may have a material current or future effect on
the Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures
or capital resources.
(dd) There are no contracts,
agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder’s fee or the
like payment in connection with this offering.
(ee) The statistical and
market-related data included in the Prospectus and the Registration
Statement are based on or derived from sources which the Company
believes to be reliable and accurate.
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(ff) The Company’s Board of
Directors has validly appointed an audit committee whose
composition satisfies the requirements of Rule 4350(d)(2) of the
Rules of the National Association of Securities Dealers, Inc. (the
“ NASD Rules ”) and the Board of Directors
and/or the audit committee has adopted a charter that satisfies the
requirements of Rule 4350(d)(1) of the NASD Rules. The audit
committee has reviewed the adequacy of its charter within the past
twelve months.
(gg) There is and has been no
failure on the part of the Company and any of the Company’s
officers or directors, in their capacities as such, to comply with
any applicable provisions of the Sarbanes Oxley Act of 2002 and the
rules and regulations promulgated in connection
therewith.
Each certificate signed by any
officer of the Company and delivered to the Underwriters or counsel
to the Underwriters shall be deemed to be a representation and
warranty by the Company to the Underwriters as to the matters
covered thereby.
SECTION 2. Representations,
Warranties and Agreements of the Selling Stockholders. Each
Selling Stockholder severally and not jointly warrants and agrees
that:
(a) The Selling Stockholder has and
immediately prior to the applicable Delivery Date (as defined in
Section 5) the Selling Stockholder will have good and valid title
to the Stock to be sold by the Selling Stockholder hereunder on
such date, free and clear of all liens, encumbrances, equities or
claims (except for such claims as may arise under this Agreement or
the Irrevocable Power of Attorney and Custody Agreement entered
into in connection herewith); 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.
(b) The Selling Stockholder has
placed in custody under an Irrevocable Power of Attorney and
Custody Agreement (the “ Custody Agreement ”
and, together with all other similar agreements executed by the
other Selling Stockholders, the “ Custody Agreements
”) with Computershare Trust Company, Inc., as custodian (the
“ Custodian ”), for delivery under this
Agreement, certificates representing the Stock (or, as the case may
be, options or warrants to purchase the Stock) to be sold by the
Selling Stockholder hereunder.
(c) The Selling Stockholder has duly
and irrevocably executed and delivered a power of attorney (the
“ Power of Attorney ” and, together with all
other similar instruments executed by the other Selling
Stockholders, the “ Powers of Attorney ”),
contained within the Custody Agreement, appointing the persons
named therein as attorneys-in-fact, with full power of
substitution, and with full authority (exercisable by any one or
more of them) to execute and deliver this Agreement on such Selling
Stockholder’s behalf and to take such other action as may be
necessary or desirable to carry out the provisions hereof on behalf
of the Selling Stockholder.
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(d) The Selling Stockholder has full
right, power and authority to enter into this Agreement and the
Custody Agreement and the execution, delivery and performance of
this Agreement and the Custody Agreement by the Selling Stockholder
and the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby 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 indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Selling Stockholder is a party or by which the Selling Stockholder
is bound or to which any of the property or assets of the Selling
Stockholder is subject, nor, for each Selling Stockholder that is
not a natural person, will such actions result in any violation of
the provisions of any partnership or limited liability company
agreement, certificate of incorporation, by-laws, operating
agreement, deed of trust or other similar agreement or
organizational document of the Selling Stockholder or any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Selling Stockholder or
the property or assets of the Selling Stockholder; and except for
the registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for
the execution, delivery and performance of this Agreement or the
Custody Agreement by the Selling Stockholder and the consummation
of the transactions contemplated hereby and thereby.
(e) The Registration Statement and
any amendment thereto does not and will not, as of the applicable
effective date, 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, and the
Prospectus and any amendment or supplement thereto will not, as of
the applicable filing date and each Delivery Date, 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 the foregoing
representation or warranty is made only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information concerning such Selling Stockholder furnished to the
Company by or on behalf of such Selling Stockholder specifically
for inclusion in the Registration Statement or the Prospectus,
which written information shall consist only of the name of such
Selling Stockholder and the beneficial ownership information
relating to such Selling Stockholder as set forth under the section
“Principal and Selling Stockholders” in the
Registration Statement and the Prospectus.
(f) The Selling Stockholder has not
taken and will not take, directly or indirectly, any action (i)
designed to or which has constituted or which might reasonably be
expected to cause or result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Stock or (ii) prohibited by Regulation M under the
Securities Act.
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(g) The Selling Stockholder has
carefully reviewed the Registration Statement and the Prospectus
and is not prompted to sell shares of Common Stock by any material
information concerning the Company that is not set forth in the
Registration Statement and the Prospectus.
(h) This Agreement has been duly
authorized, executed and delivered by or on behalf of the Selling
Stockholder.
Each certificate signed by or on
behalf of a Selling Stockholder and delivered to the Underwriters
or counsel to the Underwriters shall be deemed to be a
representation and warranty by such Selling Stockholder to the
Underwriters as to the matters covered thereby.
SECTION 3. Purchase of the Stock
by the Underwriters. On the basis of the representations and
warranties contained in, and subject to the terms and conditions
of, this Agreement, each Selling Stockholder hereby agrees to sell
the number of shares of the Firm Stock set forth opposite its name
in Schedule 2 hereto, severally and not jointly, to the several
Underwriters and each of the Underwriters, severally and not
jointly, agrees to purchase the number of shares of the Firm Stock
set forth opposite that Underwriter’s name in Schedule 1
hereto. The respective purchase obligations of the Underwriters
with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may
determine.
In addition, each Option Selling
Stockholder, severally and not jointly, grants to the Underwriters
an option to purchase the number of shares of Option Stock set
forth opposite its name in Schedule 2 hereto. Such option is
granted for the purpose of covering over-allotments in the sale of
Firm Stock and is exercisable as provided in Section 5 hereof.
Shares of Option Stock shall be purchased severally for the account
of the Underwriters in proportion to the number of shares of Firm
Stock set forth opposite the name of such Underwriters in Schedule
1 hereto. The respective purchase obligations of each Underwriter
with respect to the Option Stock shall be adjusted by the
Representatives so that no Underwriter shall be obligated to
purchase Option Stock other than in 100 share amounts.
The price of both the Firm Stock and
any Option Stock shall be
$
per share.
No Selling Stockholder shall be
obligated to deliver any of the Stock to be delivered on any
Delivery Date (as hereinafter defined), except upon payment for all
the Stock to be purchased on such Delivery Date as provided
herein.
SECTION 4. Offering of Stock by
the Underwriters.
Upon authorization by the
Representatives of the release of the Firm Stock, the several
Underwriters propose to offer the Firm Stock for sale upon the
terms and conditions set forth in the Prospectus.
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SECTION 5. Delivery of and
Payment for the Stock. Delivery of and payment for the Firm
Stock shall be made at the offices of Latham & Watkins LLP, 135
Commonwealth Drive, Menlo Park, California 94025, at 10:00 A.M.,
New York City time, on the fourth full business day following the
date of this Agreement or at such other date or place as shall be
determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the
“ First Delivery Date .” On the First Delivery
Date, each Selling Stockholder shall deliver or cause to be
delivered certificates representing the Firm Stock to the
Representatives for the account of each Underwriter against payment
to or upon the order of the Selling Stockholders of the purchase
price by wire transfer in immediately available funds. Time shall
be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation
of each Underwriter hereunder. Upon delivery, the Firm Stock shall
be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full
business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the
Firm Stock, each Selling Stockholder shall make the certificates
representing the Firm Stock available for inspection by the
Representatives in Menlo Park, California, not later than 2:00
P.M., New York City time, on the business day prior to the First
Delivery Date.
The option granted in Section 3 will
expire 30 days after the date of this Agreement (the “
Option Expiration Date ”) and may be exercised in
whole or in part from time to time by written notice being given to
the Company and the Option Selling Stockholders by the
Representatives. Such notice shall set forth the aggregate number
of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock
are to be issued and the date and time, as determined by the
Representatives, when the shares of Option Stock are to be
delivered; provided, however, that this date and time shall not be
earlier than the First Delivery Date nor earlier than the second
business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on
which the option shall have been exercised. The date and time the
shares of Option Stock are delivered are sometimes referred to as a
“ Second Delivery Date ” and the First Delivery
Date and any Second Delivery Date are sometimes each referred to as
a “ Delivery Date .”
Delivery of and payment for the
Option Stock shall be made at the place specified in the first
sentence of the first paragraph of this Section 5 (or at such other
place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time,
on such Second Delivery Date. On such Second Delivery Date, each
Option Selling Stockholder shall deliver or cause to be delivered
the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment
to or upon the order of the Option Selling Stockholders of the
purchase price by wire transfer in immediately available funds.
Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon
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delivery, the Option Stock shall be registered
in such names and in such denominations as the Representatives
shall request in the aforesaid written notice. For the purpose of
expediting the checking and packaging of the certificates for the
Option Stock, the Option Selling Stockholders shall make the
certificates representing the Option Stock available for inspection
by the Representatives in Menlo Park, California, not later than
2:00 P.M., New York City time, on the business day prior to such
Second Delivery Date.
SECTION 6. Further Agreements of
the Company. The Company agrees:
(a) To prepare the Prospectus in a
form approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than
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 be required by Rule 430A(a)(3)
under the Securities Act; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus
except as permitted herein; to advise the Representatives, 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 the Representatives with copies thereof; to
advise the Representatives, 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 the Prospectus, of the suspension of the
qualification of the Stock 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 the Prospectus or
suspending any such qualification, to use promptly its best efforts
to obtain its withdrawal;
(b) To furnish promptly to each of
the Representatives and to counsel for the Underwriters a signed
copy of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the
Representatives such number of the following documents as the
Representatives shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission
and each amendment thereto (in each case excluding exhibits) and
(ii) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is
required at any time after the Effective Time in connection with
the offering or sale of the Stock or any other securities relating
thereto 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 is delivered, not misleading, or, if for
any other reason it shall be necessary to amend or supplement
the
13
Prospectus in connection with the offering or
sale of the Stock hereunder in order to comply with the Securities
Act, to notify the Representatives and, upon their request, to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect
such compliance;
(d) To file promptly with the
Commission any amendment to the Registration Statement or the
Prospectus or any supplement to the Prospectus that may, in the
reasonable judgment of the Company or the Representatives, be
required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the
Commission any amendment to the Registration Statement or
supplement to the Prospectus or any Prospectus pursuant to Rule 424
of the Rules and Regulations, to furnish a copy thereof to the
Representatives and counsel for the Underwriters and obtain the
consent of the Representatives to the filing;
(f) As soon as practicable after the
Effective Date, to make generally available to the Company’s
security holders and to deliver to the Representatives an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company,
Rule 158);
(g) For a period of five years
following the Effective Date, to deliver to the Representatives
copies of all materials furnished by the Company to its
shareholders and all public reports and all reports and financial
statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed
pursuant to requirements of or agreements with such exchange or to
the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder (it being understand that
filing on EDGAR shall be deemed to constitute delivery
hereunder);
(h) Promptly from time to time to
take such action as the Representatives may reasonably request to
qualify the Stock for offering and sale under the securities laws
of such jurisdictions as the Representatives may reasonably 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 reasonably necessary to complete the distribution of the Stock;
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;
(i) For a period of 90 days from the
date of the Prospectus, not to, directly or indirectly, (i) offer
for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the
future of) any shares of Common Stock or
14
securities convertible into or exchangeable for
Common Stock (other than the Stock and shares issued pursuant to
employee benefit plans, stock option plans or other employee
compensation plans existing on the date hereof or pursuant to
currently outstanding options, warrants or rights), or sell or
grant options, rights or warrants with respect to any shares of
Common Stock or securities convertible into or exchangeable for
Common Stock (other than the grant of options pursuant to option
plans existing on the date hereof), or (ii) enter into any swap or
other derivatives transaction that transfers to another, in whole
or in part, any of the economic benefits or risks of ownership of
such shares of Common Stock, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise, in each case
without the prior written consent of Lehman Brothers Inc. on behalf
of the Underwriters; and to cause each executive officer of the
Company and members of the Company’s board of directors Ms.
Cloherty and Messrs. Ekholm, Goodrich, Joseph, and Young to furnish
to the Representatives, prior to the First Delivery Date, a letter
or letters, substantially in the form of Exhibit A hereto, pursuant
to which each such person shall agree not to, directly or
indirectly, (x) offer for sale, sell, pledge or otherwise dispose
of (or enter into any transaction or device
