Exhibit 1.1
$175,000,000
Coinstar, Inc.
4.00% Convertible Senior Notes
due 2014
UNDERWRITING
AGREEMENT
September 10, 2009
September 10, 2009
Morgan Stanley & Co.
Incorporated
Jefferies & Company, Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
RBC Capital Markets Corporation
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Coinstar, Inc., a Delaware
corporation (the “ Company ”), proposes to issue
and sell to the several underwriters named in Schedule II hereto
(the “ Underwriters ”), for whom you are acting
as managers (the “ Managers ”), the principal
amount of its debt securities identified in Schedule I hereto (the
“ Firm Securities ”), to be issued under the
indenture specified in Schedule I hereto (the “
Indenture ”) between the Company and the Trustee
identified in such Schedule (the “ Trustee ”).
The Company also proposes to issue and sell to the several
Underwriters not more than $25,000,000 principal amount of its debt
securities identified in Schedule I hereto as additional debt
securities (the “ Additional Securities ”) 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 debt securities granted to the Underwriters in
Section 2 hereof. The Firm Securities and the Additional
Securities are hereinafter collectively referred to as the “
Securities. ” If the firm or firms listed in Schedule
II hereto include only the Managers, then the terms
“Underwriters” and “Managers” as used
herein shall each be deemed to refer to such firm or firms. The
Securities will be convertible into shares of common stock of the
Company (the “ Common Stock ”), par value $0.001
per share (the “ Underlying Securities ”) on the
terms, and subject to the conditions, set forth in the
Indenture.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement, including a prospectus, (the
file number of which is set forth in Schedule I hereto) on Form
S-3, relating to securities (the “ Shelf Securities
”), including the Securities and the Underlying Securities,
to be issued from time to time by the Company. The registration
statement as amended to the date of this Agreement, including the
information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A
or Rule 430B under the Securities Act of 1933, as amended (the
“ Securities Act ”), is hereinafter referred to
as the “ Registration Statement ”, and the
related prospectus covering the Shelf Securities dated
August 24, 2009 in the form first used to
confirm sales of the Securities (or in the form first made
available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “ Basic Prospectus.
” The Basic Prospectus, as supplemented by the prospectus
supplement specifically relating to the Securities in the form
first used to confirm sales of the Securities (or in the form first
made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “ Prospectus ,”
and the term “ preliminary prospectus ” means
the preliminary form of the Prospectus dated September 9, 2009
and distributed to prospective purchasers of the Securities. 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 I 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 ,” “ Basic Prospectus ,”
“ 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 Basic
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 Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), that are deemed to be incorporated by reference therein.
The term “ Applicable Time ” means 9:00 p.m.,
New York City time, on September 10, 2009.
1. Representations and
Warranties . The Company represents and warrants to and agrees
with each of the Underwriters that:
(a) The Registration Statement has
become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the Company’s knowledge,
threatened by the Commission. The Registration Statement is an
automatic shelf registration statement as defined in Rule 405 under
the Securities Act, the Company is a well-known seasoned issuer (as
defined in Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement
and the Company has not received notice that the Commission objects
to the use of the Registration Statement as an automatic shelf
registration statement.
(b)(i) Each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in the Time of Sale Prospectus or the Prospectus complied
when filed or will comply when so filed in all material respects to
the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) the
Registration Statement, when
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such part 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, (iii) the Registration
Statement as of the date hereof does 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, (iv) the Registration Statement and
the Prospectus comply, and as amended or supplemented, if
applicable, will comply in all material respects to the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, (v) the Time of Sale
Prospectus does not, and as of the Applicable Time (which the
Managers have informed the Company is the time of first sale of the
Securities by any Underwriter) did 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,
(vi) each broadly available road show, if any, when considered
together with the Time of Sale Prospectus as of the Applicable
Time, did not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading and (vii) the Prospectus as of its date
and at the Closing Date, 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, 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, any broadly available road show or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Managers expressly for use therein or that part of the Registration
Statement that constitutes the Statement of Eligibility under the
Trust Indenture Act of 1939, as amended (the “ Trust
Indenture Act ”), of a Corporation Designated to Act as
Trustee on Form T-1 (the “ Form T-1 ”) of the
Trustee.
(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 I hereto forming part of the Time of Sale Prospectus, and
electronic road
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shows, if any, each furnished to the Managers
before first use, the Company has not prepared, used or referred
to, and will not, without the Managers’ 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
or have such power and authority would not have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(e) Each subsidiary of the Company
listed on Schedule III has been duly incorporated. Each subsidiary
of the Company listed on Schedule III is validly existing as a
limited liability company in good standing under the laws of the
jurisdiction of its formation, has the limited liability company
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 or have such
power and authority would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the
outstanding membership interests of each subsidiary of the Company
listed on Schedule III have been duly and validly authorized and
issued in accordance with the limited liability company agreement
of such company, are fully paid (to the extent required under the
limited liability company agreement of such company) and
non-assessable (except as such non-assessability may be affected by
Section 18-607 of the Delaware Limited Liability Company Act);
all of the outstanding membership interests of each subsidiary of
the Company listed on Schedule III are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities
or claims, except for security interests granted with respect to
equity interests in the subsidiaries of the Company listed on
Schedule III pursuant to the Company’s Amended and Restated
Credit Agreement, dated as of November 20, 2007 and amended
and restated as of April 29, 2009, with Bank of America, N.A.,
as administrative agent, swing line lender, and letter of credit
issuer, and the other lenders party thereto. The subsidiaries
listed on Schedule III hereto are the only “significant
subsidiaries” of the Company as that term is defined in Rule
1-02 of Regulation S-X under the Exchange Act.
(f) This Agreement has been duly
authorized, executed and delivered by the Company.
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(g) The authorized capital stock of
the Company conforms in all material respects as to legal matters
to the description thereof contained in each of the Time of Sale
Prospectus and the Prospectus.
(h) The Securities and Underlying
Securities conform in all material respects as to legal matters to
the description thereof contained in each of the Time of Sale
Prospectus and the Prospectus.
(i) The shares of Common Stock
outstanding prior to the issuance of the Securities have been duly
authorized and are validly issued, fully paid and
non-assessable.
(j) The Securities have been duly
authorized and, when executed by the Company and authenticated by
the Trustee in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will be valid and binding obligations
of the Company, enforceable in accordance with their terms, except
as enforcement may be limited by applicable bankruptcy, insolvency
and similar laws affecting creditors’ rights and remedies
generally and equitable principles of general applicability, and
will be entitled to the benefits of the Indenture.
(k) The Underlying Securities
issuable 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.
(l) The Indenture has been duly
qualified under the Trust Indenture Act and, as of the Closing
Date, will be duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Company,
enforceable in accordance with its terms, except as enforcement may
be limited by applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights and remedies generally and
equitable principles of general applicability.
(m) The execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture and the
Securities, will not contravene (i) any provision of
applicable law, (ii) any provision of the certificate of
incorporation or bylaws of the Company, (iii) 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 (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, except, in the case of clause
(iii) above, where such contravention would not, singly or in
the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole, or on the power and ability of
the Company to perform its obligations under this Agreement, the
Indenture or the Securities or to
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consummate the transactions contemplated by the
Time of Sale Prospectus. 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, the Indenture or the Securities, except such
as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Securities.
(n) 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.
(o) There are no legal or
governmental proceedings pending or, to the Company’s
knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject (i) other than
proceedings accurately described in all material respects in the
Time of Sale Prospectus and proceedings that would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole, or on the power or ability of the Company to perform
its obligations under this Agreement, the Indenture or the
Securities or to consummate the transactions contemplated by the
Time of Sale Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are
not so described; 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.
(p) Each preliminary prospectus
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.
(q) The Company is not, and after
giving effect to the offering and sale of the Securities and the
application of the net proceeds thereof as described in the
Prospectus will not be, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(r) The Company and its subsidiaries
(i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“
Environmental Laws ”), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the
6
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.
(s) There are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(t) 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 Securities registered pursuant to the
Registration Statement.
(u) The Company and its subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(v) Neither the Company nor any of
its subsidiaries, nor to the Company’s knowledge, any
director, officer, or employee, agent or representative of the
Company or of any of its subsidiaries, has taken any action in
furtherance of an offer, payment, promise to pay, or authorization
or approval of the payment or giving of money, property, gifts or
anything else of value, directly or indirectly, to any
“government official” (including any officer or
employee of a government or government-owned or controlled entity
or of a public international organization, or any person acting in
an official capacity for or on behalf of any of the foregoing, or
any political party or party official or candidate for political
office) to influence official action or secure an improper
advantage; and the Company and its subsidiaries and affiliates have
conducted their businesses in compliance with applicable
anti-corruption laws and have instituted and maintain and will
continue to maintain policies and procedures designed to promote
and achieve compliance with such laws and with the representation
and warranty contained herein.
(w) The operations of the Company
and its subsidiaries are and have been conducted at all times in
material compliance with all applicable financial
7
recordkeeping and reporting requirements,
including those of the Bank Secrecy Act, as amended by Title III of
the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT Act), and the applicable anti-money laundering statutes of
jurisdictions where the Company and its subsidiaries conduct
business, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “
Anti-Money Laundering Laws ”), and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Anti-Money Laundering Laws is
pending or, to the best knowledge of the Company,
threatened.
(x)(i) The Company represents that
neither the Company nor any of its subsidiaries (collectively, the
“ Entity ”) or, to the Entity’s knowledge,
any director, officer, employee, agent, affiliate or representative
of the Entity, is an individual or entity (“ Person
”) that is, or is owned or controlled by a Person that
is:
(A) the subject of any sanctions
administered or enforced by the U.S. Department of Treasury’s
Office of Foreign Assets Control (“ OFAC ”), the
United Nations Security Council (“ UNSC ”), the
European Union (“ EU ”), Her Majesty’s
Treasury (“ HMT ”), or other relevant sanctions
authority (collectively, “ Sanctions ”),
nor
(B) located, organized or resident
in a country or territory that is the subject of Sanctions
(including, without limitation, Burma/Myanmar, Cuba, Iran, North
Korea, Sudan and Syria).
(ii) The Entity represents and
covenants that it will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other Person:
(A) to fund or facilitate any
activities or business of or with any Person or in any country or
territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or
(B) in any other manner that will
result in a violation of Sanctions by any Person (including any
Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The Entity represents and
covenants that for the past 5 years, it has not knowingly engaged
in and is not now knowingly engaged in, and will not engage in, any
dealings or transactions with any Person, or in any country
or
8
territory, that at the time of the dealing or
transaction is or was the subject of Sanctions.
(y) 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, and
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 which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
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 the respective principal amount of
Firm Securities set forth in Schedule II hereto opposite its
name at the purchase price set forth in Schedule I hereto (the
“ Purchase Price ”). The Company hereby confirms
its engagement of Jefferies & Company, Inc. (“
Jefferies ”) as, and Jefferies hereby confirms its
agreement with the Company to render services as, a “
qualified independent underwriter ,” within the
meaning of Section (b)(15) of Rule 2720 of the NASD Conduct Rules
of the Financial Industry Regulatory Authority, Inc. (“
FINRA ”) with respect to the offering and sale of the
Securities. Jefferies, solely in its capacity as the qualified
independent underwriter and not otherwise, is referred to herein as
the “ QIU .” The QIU agrees that it will not be
paid compensation by the Company. The public offering price of
the Securities is not in excess of the price recommended by the
QIU.
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 Securities, and the Underwriters shall
have the right to purchase, severally and not jointly, up to the
aggregate principal amount of Additional Securities set forth in
Schedule I hereto at the Purchase Price. The Managers 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
aggregate principal amount of Additional Securities to be purchased
by the Underwriters, the names in which the Additional Securities
are to be registered, the denominations in which the Additional
Securities are to be issued and the date and time on which such
securities are to be purchased. Each purchase date of Additional
Securities must be at least two business days after the written
notice is given and may not be earlier than the Closing Date nor
later than ten business days after the date of such
9
notice. Additional Securities 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 Securities. On each day, if any, that Additional
Securities are to be purchased (an “ Option Closing
Date ”), each Underwriter agrees, severally and not
jointly, to purchase the principal amount of Additional Securities
(subject to such adjustments to eliminate fractional securities as
the Managers may determine) that bears the same proportion to the
total aggregate principal amount of Additional Securities to be
purchased on such Option Closing Date as the principal amount of
Firm Securities set forth in Schedule II hereto opposite the
name of such Underwriter bears to the total aggregate principal
amount of Firm Securities.
3. Public Offering . The
Company is advised by the Managers that the Underwriters propose to
make a public offering of their respective portions of the
Securities as soon after the Registration Statement and this
Agreement have become effective as in the Managers’ judgment
is advisable. The Company is further advised by the Managers that
the Securities are to be offered to the public upon the terms set
forth in the Prospectus and this Agreement.
4. Payment and Delivery.
Payment for the Firm Securities shall be made to the Company in
Federal or other funds immediately available in New York City on
the closing date and time set forth in Schedule I hereto, or at
such other time on the same or such other date, not later than the
fifth business day thereafter, as may be determined in writing by
the Managers and the Company. The time and date of such payment are
hereinafter referred to as the “ Closing Date
.”
Payment for any Additional
Securities shall be made to the Company in Federal or other funds
immediately available in New York City on the date specified in the
corresponding notice described in Section 2 or at such other
time on the same or on such other date, in any event not later than
the tenth business day thereafter, as may be designated in writing
by you.
The Firm Securities and the
Additional Securities shall be registered in such names and in such
denominations as the Managers shall request in writing not later
than one full business day prior to the Closing Date or the
applicable Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Securities to
the Underwriters duly paid, against payment of the Purchase Price
therefor.
5. Conditions to the
Underwriters’ Obligations . The several obligations of
the Underwriters are subject to the following
conditions:
(a) Subsequent to the execution and
delivery of this Agreement and prior to the Closing
Date:
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(i) there shall not have occurred
any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change,
in the rating accorded the Company or any of the securities of the
Company or any of its subsidiaries or in the rating outlook for the
Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred
any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Time of Sale Prospectus as of the
date of this Agreement that, in the Manager’s judgment, is
material and adverse and that makes it, in the Manager’s
judgment, impracticable to market the Securities on the terms and
in the manner contemplated in the Time of Sale
Prospectus.
(b) The Underwriters shall have
received on the Closing Date a certificate, dated the Closing Date
and signed by an executive officer of the Company, to the effect
set forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The executive officer signing and
delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have
received on the Closing Date an opinion of Perkins Coie LLP,
outside counsel for the Company, dated the Closing Date,
substantially in the form attached as Exhibit A hereto.
(d) The Underwriters shall have
received on the Closing Date an opinion of Davis Polk &
Wardwell LLP, counsel for the Underwriters, dated the Closing Date,
covering such matters as the Underwriters may reasonably
request.
Davis Polk & Wardwell
LLP may state that their opinions and beliefs are based upon their
participation in the preparation of the Registration Statement, the
Time of Sale Prospectus, the Prospectus, the preliminary prospectus
supplement, the free writing prospectuses identified as part of the
Time of Sale Prospectus in Schedule I hereto, the prospectus
supplement and any amendments or supplements thereto (other than
the documents incorporated by reference) and upon review and
discussion of the contents of the Registration Statement, the Time
of Sale Prospectus and the Prospectus (including documents
incorporated by reference), but are without independent check or
verification, except as specified.
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The opinion of counsel for the
Company described in Section 5(c) above shall be rendered to
the Underwriters at the request of the Company and shall so state
therein.
(e) The Underwriters shall have
received, on each of the date hereof and the Closing Date, a letter
dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to the Underwriters, from KPMG LLP,
independent registered public accounting firm, containing
statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement, the Time of
Sale Prospectus and the Prospectus; provided that the letter
delivered on the Closing Date shall use a “cut-off
date” not earlier than the date hereof.
(f) The “lock-up”
agreements, each substantially in the form of Exhibit B hereto,
between the Managers and certain stockholders, executive officers
and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to the Managers on or before the date hereof, shall be in
full force and effect on the Closing Date.
(g) The Company will use its
reasonable best efforts to list, subject to notice of issuance, the
Underlying Securities on the NASDAQ Global Select
Market.
The several obligations of the
Underwriters to purchase Additional Securities hereunder are
subject to the delivery to the Managers on the applicable Option
Closing Date of such documents as the Managers may reasonably
request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Securities to be sold
on such Option Closing Date and other matters related to the
issuance of such Additional Securities.
6. Covenants of the Company .
The Company covenants with each Underwriter as follows:
(a) To furnish to the Managers upon
request, without charge, a signed copy of the Registration
Statement (including exhibits thereto and documents incorporated by
reference therein) and to deliver to each of the Underwriters
during the period mentioned in Section 6(e) or 6(f) below, as
many copies of the Time of Sale Prospectus, the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto or to the Registration Statement as the Managers
may reasonably request.
(b) Before amending or supplementing
the Registration Statement, the Time of Sale Prospectus or the
Prospectus, to furnish to the Managers a copy of
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each such proposed amendment or supplement and
not to file any such proposed amendment or supplement to which the
Managers reasonably object.
(c) To furnish to the Managers a
copy of each proposed free writing prospectus to be prepared by or
on behalf of, used by, or referred to by the Company and not to use
or refer to any proposed free writing prospectus to which the
Managers reasonably object.
(d) Not to take any action that
would result in an Underwriter or the Company being required to
file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that the Underwriter otherwise would not have
been required to file thereunder.
(e) If the Time of Sale Prospectus
is being used to solicit offers to buy the Securities at a time
when the Prospectus is not yet available to prospective purchasers
and any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Time of Sale Prospectus
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if any
event shall occur or condition exist as a result of which the Time
of Sale Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as
so amended or supplemented will not, in the light of the
circumstances under which they were made, be misleading or so that
the Time of Sale Prospectus, as amended or supplemented, will no
longer conflict with the Registration Statement, or so that the
Time of Sale Prospectus, as amended or supplemented, will comply
with applicable law.
(f) If, during such period after the
first date of the public offering of the Securities as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) of the Securities
Act) is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or
if, in the opinion of counsel for the Underwriters, it is necessary
to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to the dealers (whose
names and addresses the Managers will furnish to the Company) to
which Securities may have been sold by the Managers on behalf of
the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements
in the Prospectus as so
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amended or supplemented will not, in the light
of the circumstances under which they were made, be misleading or
so that the Prospectus, as amended or supplemented, will comply
with applicable law.
(g) To endeavor to qualify the
Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Managers shall reasonably request;
provided that in no event shall the Company or any of its
subsidiaries be obligated to qualify to do business as a foreign
corporation in any jurisdiction where it is not already so
qualified, to file any general consent to service of process, or to
subject itself to taxation in any jurisdiction where it is not
already subject to taxation.
(h) To make generally available to
the Company’s security holders and to the Managers as soon as
practicable an earning statement covering a period of at least
twelve months beginning with the first fiscal quarter of the
Company occurring after the date of this Agreement which shall
satisfy the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder;
provided that such delivery requirement shall be deemed met
by the Company’s compliance with its report
