Exhibit 1.1
EXECUTION COPY
$ 155,000,000
TTM
Technologies, Inc.
3.25%
Convertible Senior Notes due 2015
Underwriting Agreement
May 8,
2008
J.P.
Morgan Securities Inc.
277 Park Avenue
New York, New York 10017
UBS
Securities LLC
299 Park Avenue
New York, New York 10171
As
Representatives of the
several Underwriters listed
in Schedule 1 hereto
Ladies
and Gentlemen:
TTM Technologies, Inc., a Delaware
corporation (the “ Company ”), proposes to issue
and sell to the several Underwriters listed in Schedule 1
hereto (the “ Underwriters ”), for whom you are
acting as Representatives (the “ Representatives
”), an aggregate of $155,000,000 principal amount of its
3.25% Convertible Senior Notes due 2015 (the “ Firm
Securities ”), and, at the option of the Underwriters, up
to an additional aggregate of $20,000,000 principal amount of its
3.25% Convertible Senior Notes due 2015 (the “ Additional
Securities ”). The Firm Securities and the Additional
Securities are herein referred to as the “ Securities
.” The Securities will be issued pursuant to a Supplemental
Indenture to be dated as of May 14, 2008 (the “
Indenture ”) between the Company and American Stock
Transfer & Trust Company (the “ Trustee ”).
The Securities will be convertible into shares (the “
Underlying Securities ”) of common stock of the
Company, par value $0.001 per share (the “ Common
Stock ”), in accordance with the terms of the Indenture.
The Company hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Securities, as
follows:
1. Registration
Statement . The Company has prepared and filed with the
Securities and Exchange Commission (the “ Commission
”) under the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “ Securities Act ”),
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a
registration statement (File No. 333-148687) including a
prospectus, relating to certain debt and equity securities to be
issued by the Company from time to time. Such registration
statement, as amended at the time it became effective, including
the information, if any, deemed pursuant to Rule 430A, 430B or 430C
under the Securities Act to be part of the registration statement
at the time of its effectiveness (“ Rule 430
Information ”), and including any post-effective
amendment thereto filed prior to the Closing Date, is referred to
herein as the “ Registration Statement ”; and as
used herein, the term “ Preliminary Prospectus ”
means the Preliminary Prospectus Supplement of the Company dated
May 8, 2008 and filed pursuant to Rule 424(b)(5) under
the Securities Act together with the prospectus included in the
Registration Statement at the time of its effectiveness that
omitted Rule 430 Information, and the term “
Prospectus ” means the definitive Prospectus
Supplement in the form first furnished to the Underwriters (or made
available upon request of purchasers pursuant to Rule 173
under the Securities Act) for use in connection with confirmation
of sales of the Securities together with the prospectus included in
the Registration Statement at the time of its effectiveness that
omitted Rule 430 Information. If the Company has filed an
abbreviated registration statement 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. Any reference in this
Agreement to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
any reference to “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “ Exchange Act ”) that are deemed to be
incorporated by reference therein. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the
Registration Statement and the Prospectus.
At or prior to the time when sales of
the Securities are first made (the “ Time of Sale
”), the Company had prepared the following information
(collectively, the “ Time of Sale Information
”): a Preliminary Prospectus dated May 8, 2008, and each
“free-writing prospectus” (as defined pursuant to
Rule 405 under the Securities Act) listed on Annex B
hereto.
2. Purchase of the
Securities by the Underwriters . (a) The Company agrees to
issue and sell the Securities to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of
the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal
amount of Securities set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price (the “ Purchase
Price ”) equal to 97.125% of the principal amount thereof
plus accrued interest, if any, from May 14, 2008 to the date
of payment and delivery. The public offering price of the
Securities is not in excess of the price recommended by UBS
Securities LLC (“ UBS ”), acting as a
“qualified independent underwriter” within the meaning
of Rule 2720 of the Rules of Conduct of the Financial Industry
Regulatory Authority, Inc. (“ FINRA ”).
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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 several
Underwriters the Additional Securities, and the Underwriters shall
have the right to purchase in whole, or from time to time in part,
the Additional Securities from the Company at the Purchase Price
plus accrued interest, if any, from the Closing Date (as defined
below) to the date of payment and delivery, solely to cover
over-allotments.
If any Additional Securities are to
be purchased, the principal amount of Additional Securities to be
purchased by each Underwriter shall be the principal amount of
Additional Securities which bears the same ratio to the aggregate
principal amount of Additional Securities being purchased as the
principal amount of Firm Securities set forth opposite the name of
such Underwriter in Schedule 1 hereto (or such principal
amount increased as set forth in Section 10 hereof) bears to
the aggregate principal amount of Firm Securities being purchased
from the Company by the several Underwriters, subject, however, to
such adjustments as the Representatives in their sole discretion
may make in order to ensure that the principal amount of Additional
Securities purchased by each Underwriter is an integral multiple of
$1,000.
The Underwriters may exercise the
option to purchase the Additional Securities at any time in whole,
or from time to time in part, on or before the thirtieth day
following the date of this Agreement, by written notice from the
Representatives to the Company. Such notice shall set forth the
aggregate principal amount of Additional Securities as to which the
option is being exercised and the date and time when the Additional
Securities are to be delivered and paid for (an “
Additional Closing Date ”), which shall be on or after
the date and time of the Closing Date (as hereinafter defined) but
shall not be earlier than two business days after the date such
notice is given nor later than the tenth full Business Day (as
hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of
Section 10 hereof), except as otherwise may be agreed between
the parties.
(b) The Company understands that
the Underwriters intend to make a public offering of the Securities
as soon after the effectiveness of this Agreement as in the
judgment of the Representatives is advisable, and initially to
offer the Securities on the terms set forth in the Time of Sale
Information. The Company acknowledges and agrees that the
Underwriters may offer and sell Securities to or through any
affiliate of an Underwriter and that any such affiliate may offer
and sell Securities purchased by it to or through any
Underwriter.
(c) Payment for the Firm
Securities shall be made by wire transfer in immediately available
funds to the account specified by the Company to the
Representatives at 10:00 A.M. New York City time on
May 14, 2008, or at such other time or place on the same or
such other date, not later than the fifth Business Day thereafter,
as the Representatives and the Company may agree upon in writing.
The time and date of such payment is referred to herein as the
“ Closing Date .” As used herein, the term
“ Business Day ” means any day other than a day
on which banks are permitted or required to be closed in New York
City.
Payment for the Securities shall be
made against delivery to the nominee of The Depository Trust
Company for the respective accounts of the several Underwriters of
the Securities of one or more global notes (collectively, the
“ Global Notes ”) representing the
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Securities, with any transfer taxes payable in connection with the
transfer to the Underwriters of the Securities duly paid by the
Company. The Global Notes will be made available for inspection by
the Representatives at the office of J.P. Morgan Securities Inc. at
the address set forth above not later than 1:00 P.M., New York City
time, on the Business Day immediately prior to the Closing Date or
an Additional Closing Date, as applicable.
(d) The Company acknowledges and
agrees that the Underwriters are acting solely in the capacity of
an arm’s length contractual counterparty to the Company with
respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the
offering) and not as financial advisors or fiduciaries to, or
agents of, the Company or any other person. Additionally, neither
the Representatives nor any other Underwriter are advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Company.
3. Representations and
Warranties of the Company . The Company represents and warrants
to each Underwriter that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in
all material respects with the Securities Act and did not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation or warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter expressly for use in any Preliminary Prospectus,
it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described
as such in Section 7(b) hereof.
(b) Time of Sale
Information . The Time of Sale Information, at the Time of Sale
did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that the Company makes no representation or
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Time of Sale
Information, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof. No statement
of material fact included in the Prospectus has been omitted from
the Time of Sale Information and no statement of material fact
included in the Time of Sale Information that is required to be
included in the Prospectus has been omitted therefrom.
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(c) Issuer Free Writing
Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not made, used, prepared, authorized,
approved or referred to and will not make, use, prepare, authorize,
approve or refer to any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes
an offer to sell or solicitation of an offer to buy the Securities
(each such communication by the Company or its agents and
representatives (other than a communication referred to in clause
(i) below) an “ Issuer Free Writing Prospectus
”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities
Act or Rule 134 under the Securities Act or (ii) the
documents listed on Annex B hereto and other written communications
approved in writing in advance by the Representatives. Each such
Issuer Free Writing Prospectus complied in all material respects
with the Securities Act, has been filed in accordance with the
Securities Act (to the extent required thereby) and, when taken
together with the Preliminary Prospectus accompanying, or delivered
prior to delivery of, or filed prior to the first use of such
Issuer Free Writing Prospectus, did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no
representation or warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus, it being understood and agreed that the only
such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(d) Registration Statement
and Prospectus. The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness
of the Registration Statement has been issued by the Commission and
no proceeding for that purpose or pursuant to Section 8A of
the Securities Act against the Company or related to the offering
has been initiated or threatened by the Commission; as of the
applicable effective date of the Registration Statement and any
amendment thereto, the Registration Statement complied and will
comply in all material respects with the Securities Act and the
Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “
Trust Indenture Act ”), and did not and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and as of the date
of the Prospectus and any amendment or supplement thereto and as of
the Closing Date, the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture
Act or (ii) any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement and
the Prospectus and any amendment or supplement thereto, it being
understood and agreed that the
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only
such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
(e) Incorporated
Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale
Information, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale
Information, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(f) Financial
Statements. The financial statements and the related notes
thereto included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus comply
in all material respects with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and present
fairly, in all material respects, the consolidated financial
position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of their operations and the
consolidated changes in their cash flows for the periods specified;
such consolidated financial statements have been prepared in
conformity with generally accepted accounting principles (“
GAAP ”) applied on a consistent basis throughout the
periods covered thereby, and the supporting schedules included or
incorporated by reference in the Registration Statement present
fairly, in all material respects, the information required to be
stated therein; the other financial information included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents
fairly, in all material respects, the information shown thereby;
and there are no financial statements (historical or pro forma)
that are required to be included or incorporated by reference in
the Registration Statement, the Time of Sale Information or the
Prospectus (or any document incorporated by reference) that are not
included or incorporated by reference as required; the Company and
its subsidiaries do not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet
obligations) that would be required to be described in the
Registration Statement, the Time of Sale Information or the
Prospectus; and all disclosures contained or incorporated by
reference in the Registration Statement, the Time of Sale
Information and the Prospectus regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G under
the Exchange Act and Item 10 of Regulation S-K under the
Securities Act, in all material respects as applicable.
(g) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, (i) there has not been any change in the
capital
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stock
(other than the issuance of shares of Common Stock and options to
purchase shares of Common Stock granted under, or contracts or
commitments pursuant to, the Company’s previous or currently
existing stock option and other similar officer, director or
employee benefit plans or the issuance of Common Stock upon the
exercise of outstanding options and warrants) or long-term debt of
the Company or any of its subsidiaries, or any dividend or
distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock, or any material
adverse change, or any development that could reasonably be
expected to result in a material adverse change, in or affecting
the business, properties, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole; (ii) neither the
Company nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole; and (iii) neither the
Company nor any of its subsidiaries has sustained 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 disturbance or dispute or any action, order or decree of any
court or arbitrator or governmental or regulatory authority, except
in each case of clauses (i), (ii) and (iii) as otherwise
disclosed in each of the Registration Statement, the Time of Sale
Information and the Prospectus.
(h) Organization and Good
Standing. The Company and each of its subsidiaries have been
duly organized and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to
be so qualified, in good standing or have such power or authority
would not have or would not be reasonably expected to have,
individually or in the aggregate, a material adverse effect on the
business, properties, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries
taken as a whole or on the performance by the Company of its
obligations under the Transaction Documents (as defined below) (a
“ Material Adverse Effect ”). The Company does
not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in
Exhibit 21.1 to the Company’s Annual Report on Form 10-K
for the year ended December 31, 2007.
(i) Stock Options.
Except as described in each of the Time of Sale Information and the
Prospectus, with respect to the stock options (the “ Stock
Options ”) granted pursuant to the stock-based
compensation plans of the Company and its subsidiaries (the “
Company Stock Plans ”), (i) each Stock Option
designated by the Company at the time of grant as an
“incentive stock option” under Section 422 of the
Internal Revenue Code of 1986, as amended (the “ Code
”) so qualifies, (ii) each grant of a Stock Option was duly
authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “ Grant
Date ”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a
duly constituted and authorized committee thereof) and any required
stockholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was
duly executed and delivered by each party thereto, (iii) each
such grant was made in accordance with the terms of the Company
Stock Plans, the Exchange
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Act and
all other applicable laws and regulatory rules or requirements,
including the rules of The Nasdaq Global Select Market (the “
Nasdaq ”) and any other exchange on which Company
securities are traded, (iv) the per share exercise price of
each Stock Option was equal to or greater than the fair market
value of a share of Common Stock on the applicable Grant Date and
(v) each such grant was properly accounted for in accordance
with GAAP in the financial statements (including the related notes)
of the Company and disclosed in the Company’s filings with
the Commission in accordance with the Exchange Act and all other
applicable laws. The Company has not knowingly granted, and there
is no and has been no policy or practice of the Company of
granting, Stock Options immediately prior to the release or other
public announcement of material information regarding the Company
or its subsidiaries or their results of operations or
prospects.
(j) Capitalization. The
Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus under the heading “Capitalization”; all the
outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable and are not subject to any pre-emptive or similar
rights; except as described in or expressly contemplated by each of
the Time of Sale Information and the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other
equity interests in the Company or any of its subsidiaries, or any
contract, commitment, agreement, understanding or arrangement of
any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options;
the capital stock of the Company conforms in all material respects
to the description thereof contained in the Registration Statement,
the Time of Sale Information and the Prospectus; and all the
outstanding shares of capital stock or other equity interests of
each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (except,
in the case of any foreign subsidiary, for directors’
qualifying shares and except as otherwise described in each of the
Registration Statement, the Time of Sale Information and the
Prospectus) and are owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third
party except as set forth in each of the Registration Statement,
the Time of Sale Information and the Prospectus.
(k) Due Authorization.
The Company has full right, power and authority to execute and
deliver this Agreement, the Securities and the Indenture
(collectively, the “ Transaction Documents ”)
and to perform its obligations hereunder and thereunder; each of
the Transaction Documents has been duly and properly authorized by
the Company and all action required to be taken by the Company for
such due and proper authorization and for the execution and
delivery by the Company of each of the Transaction Documents and
the consummation by it of the transactions contemplated thereby has
been duly and validly taken.
(l) Underwriting
Agreement. This Agreement has been executed and delivered by
the Company.
(m) Indenture. On the
Closing Date, the Indenture will be duly qualified under and will
conform in all material respects to the requirements of the Trust
Indenture Act and, when duly
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executed
and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by
(i) applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally or
(ii) equitable principles relating to enforceability (clauses
(i) and (ii) collectively, the “ Enforceability
Exceptions ”).
(n) The Securities. The
Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company
in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the
Indenture.
(o) The Underlying
Securities . Upon issuance and delivery of the Securities in
accordance with this Agreement and the Indenture, the Securities
will be convertible at the option of the holder thereof into shares
of the Underlying Securities in accordance with the terms of the
Securities and the Indenture; the Underlying Securities reserved
for issuance upon conversion of the Securities have been duly
authorized and reserved and, when issued upon conversion of the
Securities in accordance with the terms of the Securities, will be
validly issued, fully paid and non-assessable, and the issuance of
the Underlying Securities will not be subject to any preemptive or
similar rights.
(p) Descriptions of the
Transaction Documents. Each Transaction Document conforms in
all material respects to the description thereof contained in each
of the Registration Statement, the Time of Sale Information and the
Prospectus.
(q) No Violation or
Default. Neither the Company nor any of its subsidiaries is
(i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has
occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any term, covenant or condition contained in 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; or (iii) in violation of any law
or statute or any judgment, order, rule or regulation of any court
or arbitrator or governmental or regulatory authority, except, in
the case of clauses (ii) and (iii) above, for any such default
or violation that would not, individually or in the aggregate, have
a Material Adverse Effect.
(r) No Conflicts. Except
as set forth in each of the Registration Statement, the Time of
Sale Information and the Prospectus, the execution, delivery and
performance by the Company of each of the Transaction Documents to
which it is a party, the issuance and sale of the Securities
(including the issuance of the Underlying Securities upon
conversion thereof) and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated by
the Transaction Documents will not (i) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other
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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, (ii) result
in any violation of the provisions of the charter or by-laws or
similar organizational documents of the Company or any of its
subsidiaries or (iii) result in the violation of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the
case of clauses (i) and (iii) above, for any such
conflict, breach, violation or default that would not, individually
or in the aggregate, have a Material Adverse Effect.
(s) No Consents
Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution,
delivery and performance by the Company of each of the Transaction
Documents to which it is a party, the issuance and sale of the
Securities (including the issuance of the Underlying Securities
upon conversion thereof) and compliance by the Company with the
terms thereof and the consummation of the transactions contemplated
by the Transaction Documents, except for the registration of the
Securities under the Securities Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may
be required under applicable state securities laws in connection
with the purchase and distribution of the Securities by the
Underwriters.
(t) Legal Proceedings.
Except as described in each of the Registration Statement, the Time
of Sale Information and the Prospectus, there are no legal,
governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any
of its subsidiaries is or may be the subject that, individually or
in the aggregate, if determined adversely to the Company or any of
its subsidiaries, could reasonably be expected to have a Material
Adverse Effect; no such investigations, actions, suits or
proceedings are threatened or, to the knowledge of the Company,
contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings
that are required under the Securities Act to be described in the
Registration Statement or the Prospectus that are not so described
in each of the Registration Statement, the Time of Sale Information
and the Prospectus and (ii) there are no statutes, regulations
or contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement or the
Prospectus that are not so filed as exhibits to the Registration
Statement or described in each of the Registration Statement, the
Time of Sale Information and the Prospectus.
(u) Independent
Accountants. KPMG LLP, who has certified certain financial
statements of the Company and its subsidiaries, is an independent
registered public accounting firm with respect to the Company and
its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities
Act.
(v) Title to Real and
Personal Property. The Company and its subsidiaries have good
and marketable title in fee simple to, or have valid rights to
lease or otherwise use, all items of real and personal property
that are material to the respective businesses of the Company
and
11
its
subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries or (ii) could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(w) Intellectual
Property.
(i) The Company and its subsidiaries
own or possess the rights to use all patents, patent applications,
inventions, trademarks, service marks, trade names, trademark
registrations, service mark registrations, domain names,
copyrights, licenses, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other intellectual property
necessary for the conduct of their respective businesses (“
Intellectual Property ”); and, to the Company’s
knowledge, the conduct of their respective businesses will not
conflict in any material respect with any such rights of others,
and the Company and its subsidiaries have not received any notice
of any claim of infringement or conflict with any such rights of
others. To the Company’s knowledge, there are no valid and
enforceable rights of third parties to the Intellectual Property
that are or would be infringed by the business currently conducted
by the Company and its subsidiaries. None of the patents owned or
licensed by the Company that are material to the Company’s
and its subsidiaries’ respective businesses is invalid or
unenforceable; and the Company is not aware of any basis for a
finding that any of the Intellectual Property is invalid or
unenforceable. All Intellectual Property owned by the Company or
its subsidiaries is free and clear of all liens, encumbrances,
defects or other restrictions, except as would not, singly or in
the aggregate, have a Material Adverse Effect on the Company. The
Company and its subsidiaries have taken all actions reasonably
necessary to maintain and protect all registered Intellectual
Property owned by the Company or its subsidiaries, including
payment of applicable maintenance fees, filing of applicable
statements of use, timely response to office actions, and
disclosure of any required information.
(ii) The Company and its subsidiaries
are in compliance with all applicable federal, state, local and
foreign laws, rules, regulations, requirements, decisions and
orders relating to Intellectual Property except as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(iii) Neither the Company nor any of
its subsidiaries is subject to any judgment, order, writ,
injunction or decree of any court or any federal, state, local,
foreign or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or any
arbitrator, nor has it entered into or is it a party to any
contract, in each case which materially restricts or impairs their
use of any Intellectual Property.
(iv) The Company and its subsidiaries
have taken all actions reasonably necessary to protect their rights
in confidential information and trade secrets, protect any
confidential information provided to them by any other person, and
obtain ownership of all works of authorship and inventions made by
its employees, consultants and
12
contractors and
which relate to the Company business. All founders, key employees
and any other employees involved in the development of software for
the Company have signed confidentiality and invention assignment
agreements with the Company.
(x) No Undisclosed
Relationships. No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers,
suppliers or other affiliates of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act
to be described in the Registration Statement and the Prospectus
and that is not so described in each of such documents and in the
Time of Sale Information.
(y) Investment Company
Act. Neither the Company nor any of its subsidiaries is, and
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the
Registration Statement, the Time of Sale Information and the
Prospectus none of them will be, an “investment
company” or an entity “controlled” by an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(z) Taxes. The Company
and its subsidiaries have paid all federal, state, local and
foreign taxes and filed all tax returns required to be paid or
filed through the date hereof; and except as otherwise disclosed in
each of the Registration Statement, the Time of Sale Information
and the Prospectus, there is no tax deficiency that has been, or
could reasonably be expected to be, asserted against the Company or
any of its subsidiaries or any of their respective properties or
assets, except for such tax deficiencies as would not, individually
or in the aggregate, have a Material Adverse Effect.
(aa) Licenses and
Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that
are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as
described in each of the Registration Statement, the Time of Sale
Information and the Prospectus, except where the failure to possess
or make the same would not, individually or in the aggregate, have
a Material Adverse Effect; and except as described in each of the
Registration Statement, the Time of Sale Information and the
Prospe
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