Contract
Exhibit 1.1
Itron,
Inc.
3,400,000
Shares
Common
Stock
(no par
value)
May 6,
2008
Xxxxxxx,
Xxxxx & Co.
00 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Itron, Inc., a Washington corporation
(the “Company”), proposes
to issue and sell to you (the “Underwriter”) an
aggregate of 3,400,000 shares (the “Shares”) of common
stock, no par value (the “Common Stock”), of
the Company. The Shares are described in the Prospectus which is
referred to below. The Shares will have attached thereto share
purchase rights (the “Rights”) issued
pursuant to the Rights Agreement (the “Rights Agreement”)
dated as of December 11, 2002 between the Company and Mellon Investor Services
LLC, as rights agent.
The Company has prepared and filed, in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder (collectively, the “Act”), with the
Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-133026) under the Act (the
“registration
statement”), including a prospectus, which registration statement
incorporates by reference documents which the Company has filed, or will file,
in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”). Such registration statement has become effective under
the Act.
Except where the context otherwise
requires, “Registration
Statement,” as used herein, means the registration statement, as amended
at the time of such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the Underwriter (the “Effective Time”),
including (i) all documents filed as a part thereof or incorporated or deemed to
be incorporated by reference therein and (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information is deemed, pursuant to
Rule 430B or Rule 430C under the Act, to be part of the registration statement
at the Effective Time.
Except where the context otherwise
requires, “Basic
Prospectus,” as used herein, means the base prospectus included as part
of the Registration Statement, in the form in which it has most recently been
filed with the Commission prior to the date of this Agreement. Except
where the context otherwise requires, “Prospectus
Supplement,” as used herein, means the final prospectus supplement,
relating to the Shares, filed by the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second business day after the date
hereof (or such earlier time as may be required under the Act), in the form
furnished by the Company to you for use by you and by dealers in connection with
the offering of the Shares. Except where the context otherwise
requires, “Prospectus,” as used
herein, means the Basic Prospectus as supplemented by the Prospectus
Supplement.
“Permitted Free Writing
Prospectuses,” as used herein, means the documents listed on Schedule A attached
hereto. The Underwriter has not offered or sold and will not offer or
sell, without the Company’s consent, any Shares by means of any “free writing
prospectus” (as defined in Rule 405 under the Act) that is required to be filed
by the Underwriter with the Commission pursuant to Rule 433 under the Act, other
than a Permitted Free Writing Prospectus.
“Disclosure Package,”
as used herein, means the Basic Prospectus, together with the Permitted Free
Writing Prospectuses, if any, and the information set forth on Schedule B attached
hereto, taken as a whole.
Any reference herein to the
Registration Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to
and include the documents, if any, incorporated by reference, or deemed to be
incorporated by reference, therein (the “Incorporated
Documents”), including, unless the context otherwise requires, the
documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
on or after the initial effective date of the Registration Statement, or the
date of the Basic Prospectus, the Prospectus Supplement, the Prospectus or such
Permitted Free Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
As used in this Agreement, “business day” shall
mean a day on which the NASDAQ Stock Market (“NASDAQ”) is open for
trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or
other subdivision of this Agreement. The term “or,” as used herein,
is not exclusive.
The Company and the Underwriter agree
as follows:
1. Sale and
Purchase. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriter and the Underwriter agrees to purchase from
the Company, 3,400,000 Shares at a purchase price of $91.52 per
Share. The Company is advised by you that you intend (i) to make a
public offering of the Shares as soon after the effectiveness of this Agreement
as in your judgment is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus. You may from time to time increase
or decrease the public offering price after the initial public offering to such
extent as you may determine.
2. Payment and
Delivery. Payment of the purchase price for the Shares shall
be made to the Company by Federal Funds wire transfer against delivery of the
certificates for the Shares to you through the facilities of The Depository
Trust Company (“DTC”) for the account
of the Underwriter. Such payment and delivery shall be made at 10:00
A.M., New York City time, on May 12, 2008 (the “Closing Date”)
(unless another time shall be agreed to by you and the Company). The
time at which such payment and delivery are to be made is hereinafter sometimes
called the “time of
purchase.” Electronic transfer of the Shares shall be made to
you at the time of purchase in such names and in such denominations as you shall
specify.
Deliveries of
the documents described in Section 6 hereof with respect to the purchase of the
Shares shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, at
9:00 A.M., New York City time, on the date of the closing of the purchase of the
Shares.
3. Representations and
Warranties of the Company. The Company represents and warrants
to and agrees with the Underwriter that:
(a) the
Registration Statement has heretofore become effective under the Act; no stop
order of the Commission preventing or suspending the use of the Basic
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus, or the effectiveness of the Registration Statement, has been
issued, and no proceedings for such purpose have been instituted or, to the
Company’s knowledge, are contemplated by the Commission;
(b) the
Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase and at all
times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; the conditions to the use of Form
S-3 in connection with the offering and sale of the Shares as contemplated
hereby have been satisfied; the Registration Statement constitutes an “automatic
shelf registration statement” (as defined in Rule 405 under the Act); the
Company has not received from the Commission a notice, pursuant to Rule
401(g)(2), of objection to the use of the automatic shelf registration statement
form; as of the determination date applicable to the Registration Statement (and
any amendment thereof) and the offering contemplated hereby, the Company is a
“well-known seasoned issuer” as defined in Rule 405 under the Act; the
Registration Statement meets, and the offering and sale of the Shares as
contemplated hereby complies with, the requirements of Rule 415 under the Act
(including, without limitation, Rule 415(a)(5) under the Act); the Registration
Statement did not, as of the Effective Time, 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; the Basic Prospectus
complied as of its date and the date it was filed with the Commission, complies
as of the date hereof and, at the time of purchase and at all times during which
a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, will comply, in all material respects, with
the requirements of the Act; the Disclosure Package does not include an 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; each of the Prospectus Supplement and the
Prospectus will comply, as of the date that it is filed with the Commission, the
date of the Prospectus Supplement, the time of purchase and at all times during
which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, in all material respects, with the
requirements of the Act (in the case of the Prospectus, including, without
limitation, Section 10(a) of the Act); at no time during the period that begins
on the earlier of the date of the Prospectus Supplement and the date the
Prospectus Supplement is filed with the Commission and ends at the later of the
time of purchase and the end of the period during which a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of Shares did
or will any Prospectus Supplement or the Prospectus, as then amended or
supplemented, include an 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; each Permitted
Free Writing Prospectus does not conflict with the information contained in the
Registration Statement, the Disclosure Package or the Prospectus, and at no time
during the period that begins on the date of such Permitted Free Writing
Prospectus and ends at the time of purchase did or will any Permitted Free
Writing Prospectus include an 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, however, that the
Company makes no representation or warranty in this Section 3(b) with respect to
any statement contained in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus in reliance upon and in conformity with
information concerning the Underwriter and furnished in writing by or on behalf
of the Underwriter to the Company expressly for use in the Registration
Statement, the Prospectus or such Permitted Free Writing Prospectus; each
Incorporated Document, at the time such document was filed with the Commission
or at the time such document became effective, as applicable, complied, in all
material respects, with the requirements of the Exchange Act and did not include
an 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;
(c) prior to
the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection
with the offer or sale of the Shares, in each case other than the Basic
Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has
not, directly or indirectly, prepared, used or referred to any Permitted Free
Writing Prospectus except in compliance with Rule 163 or with Rules 164 and 433
under the Act; assuming that such Permitted Free Writing Prospectus is so sent
or given after the Registration Statement was filed with the Commission (and
after such Permitted Free Writing Prospectus was, if required pursuant to Rule
433(d) under the Act, filed with the Commission), the sending or giving, by the
Underwriter, of any Permitted Free Writing Prospectus will satisfy the
provisions of Rule 164 and Rule 433 (without reliance on subsections (b), (c)
and (d) of Rule 164); the conditions set forth in one or more of subclauses (i)
through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the
registration statement relating to the offering of the Shares contemplated
hereby, as initially filed with the Commission, includes a prospectus that,
other than by reason of Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act; neither the Company nor the Underwriter
are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act,
from using, in connection with the offer and sale of the Shares, “free writing
prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and
433 under the Act; the Company is not an “ineligible issuer” (as defined in Rule
405 under the Act) as of the eligibility determination date for purposes of
Rules 164 and 433 under the Act with respect to the offering of the Shares
contemplated by the Registration Statement;
(d) as of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth under the heading “Actual” in the section of the
Prospectus entitled “Capitalization” (and any similar sections or information,
if any, contained in any Permitted Free Writing Prospectus), and, as of the time
of purchase, the Company shall have an authorized and outstanding capitalization
as set forth in the section of the Prospectus entitled “Capitalization” (and any
similar sections or information, if any, contained in any Permitted Free Writing
Prospectus) (subject, in each case, to the issuance of shares of Common Stock
upon exercise of stock options and warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto) and the Prospectus and
the grant of options under existing stock option plans described in the
Registration Statement (excluding the exhibits thereto) and the Prospectus); all
of the issued and outstanding shares of capital stock, including the Shares, of
the Company have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable securities
laws and were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right; the Shares are duly listed, and
admitted and authorized for trading, subject to official notice of issuance, on
NASDAQ;
(e) the
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Washington, with full corporate
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as contemplated
herein;
(f) the
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in
the aggregate, (i) have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company and the
Subsidiaries (as defined below) taken as a whole, (ii) prevent or materially
interfere with consummation of the transactions contemplated hereby or (iii)
result in the delisting of shares of Common Stock from NASDAQ (the occurrence of
any such effect or any such prevention or interference or any such result
described in the foregoing clauses (i), (ii) and (iii) being herein referred to
as a “Material Adverse
Effect”);
(g) the
Company has no subsidiaries (as defined under the Act) other than those listed
on Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year ended
December 31, 2007 (collectively, the “Subsidiaries”);
except as disclosed in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, with respect to the PT Mecoindo,
the Company owns, directly or indirectly, all of the issued and outstanding
capital stock of each of the Subsidiaries; other than the capital stock of the
Subsidiaries, the Company does not own, directly or indirectly, any shares of
stock or any other equity interests or long-term debt securities of any
corporation, firm, partnership, joint venture, association or other entity;
complete and correct copies of the charters and the bylaws of the Company and
Actaris Metering Systems SA (“Actaris”) and all
amendments thereto have been delivered to you, and no changes therein will be
made on or after the date hereof through and including the time of purchase;
each Subsidiary has been incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, with
full corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any; each Subsidiary
is qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to
be so qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; except as disclosed in the
Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, with respect to the PT Mecoindo, all of the outstanding
shares of capital stock of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable, have been issued in
compliance with all applicable securities laws, were not issued in violation of
any preemptive right, resale right, right of first refusal or similar right and
are owned by the Company subject to no security interest, other encumbrance or
adverse claims; except as disclosed in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, with respect to
the PT Mecoindo, no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligation into shares
of capital stock or ownership interests in the Subsidiaries are outstanding; the
Company has no “significant subsidiary,” as that term is defined in Rule 1-02(w)
of Regulation S-X under the Act, other than Actaris;
(h) the
Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable and free of statutory and contractual preemptive
rights, resale rights, rights of first refusal and similar rights; the Shares,
when issued and delivered against payment therefor as provided herein, will be
free of any restriction upon the voting or transfer thereof pursuant to the
Washington Corporation Law or the Company’s charter or bylaws or any agreement
or other instrument to which the Company is a party;
(i) the
capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof, if any, contained or incorporated by
reference in the Registration Statement, the Prospectus and the Permitted Free
Writing Prospectuses, if any; and the certificates for the Shares are in due and
proper form;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) the
Rights Agreement has been duly authorized, executed and delivered by the
Company; the Rights have been duly authorized by the Company and validly
issued;
(l) neither
the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which, with notice, lapse of time or
both, would result in any breach or violation of, constitute a default under or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (A) its charter or bylaws, or (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound or
affected, or (C) any federal, state, local or foreign law, regulation or rule,
or (D) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the rules
and regulations of NASDAQ), or (E) any decree, judgment or order applicable to
it or any of its properties; except, in the cases of clause (B), (C) and (D),
where such occurrence would not, individually or in the aggregate, have a
Material Adverse Effect;
(m) the
execution, delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which, with notice, lapse of time or both, would
result in any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (or result in the creation or imposition of a lien,
charge or encumbrance on any property or assets of the Company or any Subsidiary
pursuant to) (A) the charter or bylaws of the Company or any of the
Subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their respective properties may be
bound or affected, or (C) any federal, state, local or foreign law, regulation
or rule, or (D) any rule or regulation of any self-regulatory organization or
other non-governmental regulatory authority (including, without limitation, the
rules and regulations of NASDAQ, or (E) any decree, judgment or order applicable
to the Company or any of the Subsidiaries or any of their respective properties;
except, in the cases of clause (B), (C) and (D), where such occurrence would
not, individually or in the aggregate, have a Material Adverse
Effect;
(n) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, NASDAQ, or
approval of the shareholders of the Company, is required in connection with the
issuance and sale of the Shares and the related Rights or the consummation by
the Company of the transactions contemplated hereby, other than (i) registration
of the Shares and the Rights under the Act, which has been effected, (ii) any
necessary qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriter or (iii)
under the Conduct Rules of the Financial Industry Regulatory Authority, Inc.
(“FINRA”);
(o) except as
described in the Registration Statement (excluding the exhibits thereto) and the
Prospectus, (i) no person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other rights to
purchase any shares of Common Stock or shares of any other capital stock of or
other equity interests in the Company and (iii) no person has the right to act
as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Shares; no person has the right, contractual or
otherwise, to cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock of or other equity interests or
securities in the Company, or to include any such shares or interests or
securities in the Registration Statement or the offering contemplated
thereby;
(p) each of
the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order to conduct
their respective businesses, except where the failure to have or obtain such
licenses, authorizations, consents and approvals would not, individually or in
the aggregate, have a Material Adverse Effect; neither the Company nor any of
the Subsidiaries is in violation of, or in default under, or has received notice
of any proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company or
any of the Subsidiaries, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect;
(q) there are
no actions, suits, claims, investigations or proceedings pending or, to the
Company’s knowledge, threatened or contemplated to which the Company or any of
the Subsidiaries or any of their respective directors or officers is or would be
a party or of which any of their respective properties is or would be subject at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, NASDAQ), except any such action, suit, claim,
investigation or proceeding which, if resolved adversely to the Company or any
Subsidiary, would not, individually or in the aggregate, have a Material Adverse
Effect;
(r) Deloitte
& Touche LLP and Ernst & Young LLP, each of whose report on the
consolidated financial statements of the Company and the Subsidiaries is
included or incorporated by reference in the Registration Statement and the
Prospectus, are each an independent public accounting firm as required by the
Act and by the rules of the Public Company Accounting Oversight Board and to the
best of our knowledge are each registered as such;
(s) the
financial statements included or incorporated by reference in the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any,
together with the related notes and schedules, present fairly the consolidated
financial position of the Company and the Subsidiaries as of the dates indicated
and of Actaris as of the dates indicated and the consolidated results of
operations, cash flows and changes in shareholders’ equity of the Company for
the periods specified and of Actaris for the periods specified and have been
prepared in compliance with the requirements of the Act and Exchange Act and in
conformity with U.S. generally accepted accounting principles applied on a
consistent basis during the periods involved; all pro forma financial statements
or data included or incorporated by reference in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses comply with the
requirements of the Act and the Exchange Act, and the assumptions used in the
preparation of such pro forma financial statements and data are reasonable, the
pro forma adjustments used therein are appropriate to give effect to the
transactions or circumstances described therein and the pro forma adjustments
have been properly applied to the historical amounts in the compilation of those
statements and data; the other financial and statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, are accurately and fairly presented
and prepared on a basis consistent with the financial statements and books and
records of the Company; there are no financial statements (historical or pro
forma) that are required to be included or incorporated by reference in the
Registration Statement or the Prospectus that are not included or incorporated
by reference as required; the Company and the Subsidiaries do not have any
material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not described in the Registration Statement
(excluding the exhibits thereto) and the Prospectus; and all disclosures
contained or incorporated by reference in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, regarding
“non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the Exchange Act and
Item 10 of Regulation S-K under the Act, to the extent applicable;
(t) subsequent
to the respective dates as of which information is given in the Registration
Statement, the Prospectus and the Permitted Free Writing Prospectuses, if any,
in each case excluding any amendments or supplements to the foregoing made after
the execution of this Agreement, there has not been (i) any material adverse
change, or any development involving a prospective material adverse change, in
the business, properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole, (ii) any
transaction which is material to the Company and the Subsidiaries taken as a
whole, (iii) any obligation or liability, direct or contingent (including any
off-balance sheet obligations), incurred by the Company or any Subsidiary, which
is material to the Company and the Subsidiaries taken as a whole, (iv) any
change in the capital stock of the Company, except for the issuance of stock
pursuant to the exercise of stock options outstanding, or pursuant to the stock
option plans of the Company in effect, in each case, as of the dates as of which
information is given in the Registration Statement and the Prospectus and
disclosed therein in the section entitled “Capitalization”, or outstanding
indebtedness of the Company or any Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the
Company or any Subsidiary;
(u) the
Company has obtained for the benefit of the Underwriter the agreement (a “Lock-Up Agreement”),
in the form set forth as Exhibit A hereto, of
each of its directors and “officers” (within the meaning of Rule 16a-1(f) under
the Exchange Act);
(v) Neither
the Company nor any Subsidiary is, and at no time during which a prospectus is
required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares will either of them be, and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof, neither of them will
be, an “investment company” or an entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company
Act”);
(w) neither
the Company nor any Subsidiary is and, after giving effect to the offering and
sale of the Shares, neither will be a “holding company” or a “subsidiary
company” of a “holding company” or an “affiliate” of a “holding company” or of a
“subsidiary company,” as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended (the “Public Utility Holding
Company Act”);
(x) the
Company and each of the Subsidiaries have good and marketable title to all
property (real and personal) described in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, as being owned
by any of them, free and clear of all liens, claims, security interests or other
encumbrances, except such as are described in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, 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; all the property described in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, as being held
under lease by the Company or a Subsidiary is held thereby under valid,
subsisting and enforceable leases;
(y) the
Company and the Subsidiaries own, or have obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames, service
names, copyrights, trade secrets and other proprietary information described in
the Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned or licensed by them or which are necessary
for the conduct of their respective businesses as currently conducted or as
proposed to be conducted, except where the failure to own, license or have such
rights would not, individually or in the aggregate, have a Material Adverse
Effect (collectively, “Intellectual
Property”); except as disclosed in the Registration Statement, the
Prospectus and the Permitted Free Writing Prospectuses, if any, with respect to
IP Co. LLP, (i) there are no third parties who have or, to the Company’s
knowledge, will be able to establish rights to any Intellectual Property, except
for, and to the extent of, the ownership rights of the owners of the
Intellectual Property which is licensed to the Company; (ii) to the knowledge of
the Company, there is no infringement by third parties of any Intellectual
Property; (iii) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the Company’s rights in
or to any Intellectual Property, except as would not, individually or in the
aggregate, have a Material Adverse Effect, and the Company is unaware of any
facts which could form a reasonable basis for any such action, suit, proceeding
or claim; (iv) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the validity,
enforceability or scope of any Intellectual Property, and the Company is unaware
of any facts which could form a reasonable basis for any such action, suit,
proceeding or claim; (v) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others that the Company or any
Subsidiary infringes or otherwise violates, any patent, trademark, tradename,
service name, copyright, trade secret or other proprietary rights of others, and
the Company is unaware of any facts which could form a reasonable basis for any
such action, suit, proceeding or claim; (vi) the Company and the Subsidiaries
have complied in all material respects with the terms of each agreement pursuant
to which Intellectual Property has been licensed to the Company or any
Subsidiary, and all such agreements are in full force and effect; (vii) to the
knowledge of the Company, there is no patent or patent application that contains
claims that interfere with the issued or pending claims of any of the
Intellectual Property or that challenges the validity, enforceability or scope
of any of the Intellectual Property; and (viii) to the knowledge of the Company,
there is no prior art that may render any patent application within the
Intellectual Property unpatentable that has not been disclosed to the U.S.
Patent and Trademark Office;
(z) neither
the Company nor any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint
pending or, to the Company’s knowledge, threatened against the Company or any of
the Subsidiaries before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining agreements
is pending or, to the Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened
against the Company or any of the Subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company or any of the
Subsidiaries, (ii) to the Company’s knowledge, no union organizing activities
are currently taking place concerning the employees of the Company or any of the
Subsidiaries and (iii) there has been no violation of any federal, state, local
or foreign law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws, any provision of the Worker
Adjustment and Retraining Notification Act of 1988, as amended (“WARN Act”) or the
WARN Act’s state, foreign or local equivalent, or any provision of the Employee
Retirement Income Security Act of 1974 (“ERISA”) or the rules
and regulations promulgated thereunder concerning the employees of the Company
or any of the Subsidiaries;
(aa) the
Company and the Subsidiaries and their respective properties, assets and
operations are in compliance with, and the Company and each of the Subsidiaries
hold all permits, authorizations and approvals required under, Environmental
Laws (as defined below), except to the extent that failure to so comply or to
hold such permits, authorizations or approvals would not, individually or in the
aggregate, have a Material Adverse Effect or would otherwise require disclosure
in the Registration Statement and the Prospectus; there are no past, present or,
to the Company’s knowledge, reasonably anticipated future events, conditions,
circumstances, activities, practices, actions, omissions or plans that could
reasonably be expected to give rise to any material costs or liabilities to the
Company or any Subsidiary under, or to interfere with or prevent compliance by
the Company or any Subsidiary with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect or would
otherwise require disclosure in the Registration Statement and the Prospectus,
neither the Company nor any of the Subsidiaries (i) is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to or
affected by any pending or, to the Company’s knowledge, threatened action, suit
or proceeding, (iv) is bound by any judgment, decree or order or (v) has entered
into any agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened release or
cleanup at any location of any Hazardous Materials (as defined below) (as used
herein, “Environmental
Law” means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to health,
safety or the protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing, generation,
treatment, storage, disposal, transportation, other handling or release or
threatened release of Hazardous Materials, and “Hazardous Materials”
means any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or may give rise
to liability under any Environmental Law);
(bb) in the
ordinary course of their business, the Company and each of the Subsidiaries
conduct periodic reviews of the effect of the Environmental Laws on their
respective businesses, operations and properties, in the course of which they
identify and evaluate associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for cleanup, closure
of properties or compliance with the Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any potential
liabilities to third parties);
(cc) all tax
returns required to be filed by the Company or any of the Subsidiaries have been
timely filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions to
tax or penalties applicable thereto due or claimed to be due from such entities
have been timely paid, other than those being contested in good faith and for
which adequate reserves have been provided;
(dd) the
Company and each of the Subsidiaries maintain insurance covering their
respective properties, operations, personnel and businesses as the Company
reasonably deems adequate; such insurance insures against such losses and risks
to an extent which is adequate in accordance with customary industry practice to
protect the Company and the Subsidiaries and their respective businesses; all
such insurance is fully in force on the date hereof and will be fully in force
at the time of purchase; neither the Company nor any Subsidiary has reason to
believe that it will not be able to renew any such insurance as and when such
insurance expires;
(ee) neither
the Company nor any Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or agreements
referred to or described in the Prospectus or any Permitted Free Writing
Prospectus, or referred to or described in, or filed as an exhibit to, the
Registration Statement or any Incorporated Document, and no such termination or
non-renewal has been threatened by the Company or any Subsidiary or, to the
Company’s knowledge, any other party to any such contract or agreement, except
for such terminations or non-renewals which would not, individually or in the
aggregate, have a Material Adverse Effect;
(ff) the
Company and each of the 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 authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(gg) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known
to the Company’s Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the
Company’s independent auditors and the Audit Committee of the Board of Directors
of the Company have been advised of: (i) all significant deficiencies, if any,
in the design or operation of internal controls which could adversely affect the
Company’s ability to record, process, summarize and report financial data; and
(ii) all fraud, if any, whether or not material, that involves management or
other employees who have a role in the Company’s internal controls; all material
weaknesses, if any, in internal controls have been identified to the Company’s
independent auditors; since the date of the most recent evaluation of such
disclosure controls and procedures and internal controls, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses; the principal
executive officers (or their equivalents) and principal financial officers (or
their equivalents) of the Company have made all certifications required by the
Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”)
and any related rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and correct; the
Company, the Subsidiaries and the Company’s directors and officers are each in
compliance in all material respects with all applicable effective provisions of
the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission and
NASDAQ promulgated thereunder;
(hh) each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained or incorporated by reference in the
Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, has been made or reaffirmed with a reasonable basis and in
good faith;
(ii) all
statistical or market-related data included or incorporated by reference in the
Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are based on or derived from sources that the Company
reasonably believes to be reliable and accurate, and the Company has obtained
the written consent to the use of such data from such sources to the extent
required;
(jj) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the “Foreign Corrupt Practices
Act”); and the Company, the Subsidiaries and, to the knowledge of the
Company, its affiliates have instituted and maintain policies and procedures
designed to ensure continued compliance therewith;
(kk) the
operations of the Company and the Subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering
Laws”); and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator or non-governmental
authority involving the Company or any of the Subsidiaries with respect to the
Money Laundering Laws is pending or, to the Company’s knowledge,
threatened;
(ll) neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering of the
Shares contemplated hereby, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other person or entity for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC;
(mm) no
Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the
Company, except as described in the Registration Statement (excluding the
exhibits thereto) and the Prospectus;
(nn) the
issuance and sale of the Shares as contemplated hereby will not cause any holder
of any shares of capital stock, securities convertible into or exchangeable or
exercisable for capital stock or options, warrants or other rights to purchase
capital stock or any other securities of the Company to have any right to
acquire any shares of preferred stock of the Company;
(oo) the
Company has not received any notice from NASDAQ regarding the delisting of the
Common Stock from NASDAQ;
(pp) except
pursuant to this Agreement, neither the Company nor any of the Subsidiaries has
incurred any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Registration
Statement;
(qq) neither
the Company nor any of the Subsidiaries nor any of their respective directors,
officers or, to the knowledge of the Company, any of their affiliates or
controlling persons has taken, directly or indirectly, any action designed, or
which has constituted or 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 Shares;
(rr) to the
Company’s knowledge, there are no affiliations or associations between (i) any
member of FINRA and (ii) the Company or any of the Company’s officers, directors
or 5% or greater security holders or any beneficial owner of the Company’s
unregistered equity securities that were acquired at any time on or after the
180th day immediately preceding the date the Registration Statement was
initially filed with the Commission, except as disclosed in the Registration
Statement (excluding the exhibits thereto) and the Prospectus; and
(ss) the
statements in the Registration Statement and the Prospectus under the heading
“United States Federal Income Tax Consequences to Non-U.S. Holders”, in the
Company’s Form 8-A registration statement for the Common Stock filed on
September 18, 1993 and in the Company’s Form 8-A registration statement for the
Rights filed on December 12, 2002; in the Company’s Annual Report on Form 10-K
for the year ended December 31, 2007 under Part I—Item I—“Business—Other
Business Considerations,” under Part I—Item 1A—“Risk Factors—Changes in
environmental regulations, violations of the regulations or future environmental
liabilities could cause us to incur significant costs and adversely affect our
operations,” and under Part I—Item 3—“Legal Proceedings”; and in the Company’s
Quarterly Report on Form 10-Q for the quarter ended March 31, 2008 under Part
II—Item I—“Legal Proceedings”; in each case insofar as such statements
constitute summaries of documents or legal proceedings or refer to matters of
law or legal conclusions, are accurate and complete in all material respects and
present fairly the information purported to be shown.
In addition,
any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to the Underwriter or counsel for the Underwriter in connection
with the offering of the Shares shall be deemed to be a representation and
warranty by the Company, as to matters covered thereby, to the
Underwriter.
4. Certain Covenants of the
Company. The Company hereby agrees:
(a) to
furnish such information as may be required and otherwise to cooperate in
qualifying the Shares and the Rights for offering and sale under the securities
or blue sky laws of such states or other jurisdictions as you may designate and
to maintain such qualifications in effect so long as you may request for the
distribution of the Shares and the Rights; provided, however, that the
Company shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares); and to
promptly advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for offer or sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(b) to make
available to the Underwriter in New York City, as soon as practicable after this
Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriter, as many copies of the Prospectus (or of the Prospectus as amended
or supplemented if the Company shall have made any amendments or supplements
thereto after the Effective Time) as the Underwriter may reasonably request for
the purposes contemplated by the Act; in case the Underwriter is required to
deliver (whether physically or through compliance with Rule 172 under the Act or
any similar rule), in connection with the sale of the Shares, a prospectus after
the nine-month period referred to in Section 10(a)(3) of the Act, or after the
time a post-effective amendment to the Registration Statement is required
pursuant to Item 512(a) of Regulation S-K under the Act, the Company will
prepare, at its expense, promptly upon request such amendment or amendments to
the Registration Statement and the Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a)
of Regulation S-K under the Act, as the case may be;
(c) if, at
the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement to be
filed with the Commission and become effective before the Shares may be sold,
the Company will use its best efforts to cause such post-effective amendment to
be filed and become effective; and the Company will advise you promptly and, if
requested by you, will confirm such advice in writing, (i) when such
post-effective amendment has become effective, and (ii) if Rule 430A under the
Act is used, when the Prospectus is filed with the Commission pursuant to Rule
424(b) under the Act (which the Company agrees to file in a timely manner in
accordance with such Rules);
(d) if, at
any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Shares, the Registration
Statement shall cease to comply with the requirements of the Act with respect to
eligibility for the use of the form on which the Registration Statement was
filed with the Commission or the Registration Statement shall cease to be an
“automatic shelf registration statement” (as defined in Rule 405 under the Act)
or the Company shall have received, from the Commission, a notice, pursuant to
Rule 401(g)(2), of objection to the use of the form on which the Registration
Statement was filed with the Commission, to (i) promptly notify you, (ii)
promptly file with the Commission a new registration statement under the Act,
relating to the Shares, or a post-effective amendment to the Registration
Statement, which new registration statement or post-effective amendment shall
comply with the requirements of the Act and shall be in a form satisfactory to
you, (iii) use its best efforts to cause such new registration statement or
post-effective amendment to become effective under the Act as soon as
practicable, (iv) promptly notify you of such effectiveness and (v) take all
other action necessary or appropriate to permit the public offering and sale of
the Shares to continue as contemplated in the Prospectus; all references herein
to the Registration Statement shall be deemed to include each such new
registration statement or post-effective amendment, if any;
(e) if the
third anniversary of the initial effective date of the Registration Statement
(within the meaning of Rule 415(a)(5) under the Act) shall occur at any time
during the period when a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, to file with the
Commission, prior to such third anniversary, a new registration statement under
the Act relating to the Shares, which new registration statement shall comply
with the requirements of the Act (including, without limitation, Rule 415(a)(6)
under the Act) and shall be in a form satisfactory to you; such new registration
statement shall constitute an “automatic shelf registration statement” (as
defined in Rule 405 under the Act); provided, however, that if the
Company is not then eligible to file an “automatic shelf registration statement”
(as defined in Rule 405 under the Act), then such new registration statement
need not constitute an “automatic shelf registration statement” (as defined in
Rule 405 under the Act), but the Company shall use its best efforts to cause
such new registration statement to become effective under the Act as soon as
practicable, but in any event within 180 days after such third anniversary and
promptly notify you of such effectiveness; the Company shall take all other
action necessary or appropriate to permit the public offering and sale of the
Shares to continue as contemplated in the Prospectus; all references herein to
the Registration Statement shall be deemed to include each such new registration
statement, if any;
(f) to advise
you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings
for, or the entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its
reasonable best efforts to obtain the lifting or removal of such order as soon
as possible; to advise you promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus, and to provide you and Underwriter’s
counsel copies of any such documents for review and comment a reasonable amount
of time prior to any proposed filing and to file no such amendment or supplement
to which you shall object in writing;
(g) subject
to Section 4(f) hereof, to file promptly
all reports and documents and any preliminary or definitive proxy or information
statement required to be filed by the Company with the Commission in order to
comply with the Exchange Act for so long as a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172 under
the Act or any similar rule) in connection with any sale of Shares; and to
provide you, for your review and comment, with a copy of such reports and
statements and other documents to be filed by the Company pursuant to Section
13, 14 or 15(d) of the Exchange Act during such period a reasonable amount of
time prior to any proposed filing, and to file no such report, statement or
document to which you shall have objected in writing; and to promptly notify you
of such filing;
(h) to pay
the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by Rule 456(b)(1)(i) under the
Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in
compliance with Rule 456(b) and Rule 457(r) under the Act;
(i) to advise
the Underwriter promptly of the happening of any event within the period during
which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, which event could require the making of any
change in the Prospectus then being used so that the Prospectus would not
include an 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 are made, not misleading, and to advise the
Underwriter promptly if, during such period, it shall become necessary to amend
or supplement the Prospectus to cause the Prospectus to comply with the
requirements of the Act, and, in each case, during such time, subject to Section
4(f) hereof, to prepare and furnish, at
the Company’s expense, to the Underwriter promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such change or
to effect such compliance;
(j) to make
generally available to its security holders, and to deliver to you, an earnings
statement of the Company (which will satisfy the provisions of Section 11(a) of
the Act) covering a period of twelve months beginning after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Act) as soon
as is reasonably practicable after the termination of such twelve-month period
but in any case not later than August 10, 2009;
(k) to
furnish to you two copies of the Registration Statement, as initially filed with
the Commission, and of all amendments thereto (including all exhibits thereto
and documents incorporated by reference therein);
(l) to
furnish to you as early as practicable prior to the time of purchase, but not
later than two business days prior thereto, a copy of the latest available
unaudited interim and monthly consolidated financial statements, if any, of the
Company and the Subsidiaries which have been read by the Company’s independent
registered public accountants, as stated in their letter to be furnished
pursuant to Sections 6(d) and (e) hereof;
(m) to apply
the net proceeds from the sale of the Shares in the manner set forth under the
caption “Use of proceeds” in the Prospectus Supplement;
(n) to pay
all costs, expenses, fees and taxes in connection with (i) the preparation and
filing of the Registration Statement, each Basic Prospectus, the Prospectus
Supplement, the Prospectus, each Permitted Free Writing Prospectus and any
amendments or supplements thereto, and the printing and furnishing of copies of
each thereof to the Underwriter and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the Shares
including any stock or transfer taxes and stamp or similar duties payable upon
the sale, issuance or delivery of the Shares to the Underwriter, (iii) the
producing, word processing and/or printing of this Agreement, any Agreement
Among Underwriters, any dealer agreements, any Powers of Attorney and any
closing documents (including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriter and (except
closing documents) to dealers (including costs of mailing and shipment), (iv)
the qualification of the Shares for offering and sale under state or foreign
laws and the determination of their eligibility for investment under state or
foreign law (including the legal fees and filing fees and other disbursements of
counsel for the Underwriter) and the printing and furnishing of copies of any
blue sky surveys or legal investment surveys to the Underwriter and to dealers,
(v) any listing of the Shares on any securities exchange or qualification of the
Shares for quotation on NASDAQ, (vi) any filing for review of the public
offering of the Shares by FINRA, including the legal fees and filing fees and
other disbursements of counsel to the Underwriter relating to FINRA matters,
(vii) the fees and disbursements of any transfer agent or registrar for the
Shares, (viii) the costs and expenses of the Company relating to presentations
or meetings undertaken in connection with the marketing of the offering and sale
of the Shares to prospective investors and the Underwriter’s sales forces,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel, lodging and other expenses
incurred by the officers of the Company and any such consultants, and the cost
of any aircraft chartered in connection with the road show, and (ix) the
performance of the Company’s other obligations hereunder; provided, however, that in no
event shall the Company be required to pay the legal fees for counsel to the
Underwriter, except as provided herein;
(o) to comply
with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act)
and with Rule 433(g) under the Act;
(p) beginning
on the date hereof and ending on, and including, the date that is 60 days after
the date of the Prospectus Supplement (the “Lock-Up Period”),
without the prior written consent of the Underwriter, not to (i) issue, sell,
offer to sell, contract or agree to sell, hypothecate, pledge, grant any option
to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, with respect to, any Common Stock, or any other securities of the
Company that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any warrants or other
rights to purchase, the foregoing, (ii) file or cause to become effective a
registration statement under the Act relating to the offer and sale of any
Common Stock, or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing,
(iii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of Common Stock,
or any other securities of the Company that are substantially similar to Common
Stock, or any securities convertible into or exchangeable or exercisable for, or
any warrants or other rights to purchase, the foregoing, whether any such
transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise or (iv) publicly announce an intention to
effect any transaction specified in clause (i), (ii) or (iii), except, in each
case, for (A) the registration of the offer and sale of the Shares as
contemplated by this Agreement, (B) issuances of Common Stock upon the exercise
of options or warrants disclosed as outstanding in the Registration Statement
(excluding the exhibits thereto) and the Prospectus, and (C) the issuance of
employee stock options not exercisable (other than pursuant to provisions for
automatic acceleration of exercisability in connection with a change in control
of the Company) during the Lock-Up Period pursuant to stock option plans
described in the Registration Statement (excluding the exhibits thereto) and the
Prospectus; provided, however, that if (a)
during the period that begins on the date that is fifteen (15) calendar days
plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section 4(p) shall continue to apply until the
expiration of the date that is fifteen (15) calendar days plus three (3)
business days after the date on which the issuance of the earnings release or
the material news or material event occurs; provided, further, that the
immediately preceding proviso shall not apply if (i) the safe harbor provided by
Rule 139 under the Act is available in the manner contemplated by Rule
2711(f)(4) of FINRA and (ii) within the 3 business days preceding the 15th
calendar day before the last day of the Lock-Up Period, the Company delivers (in
accordance with Section 9) to the Underwriter a certificate, signed by the Chief
Financial Officer or Chief Executive Officer of the Company, certifying on
behalf of the Company that the Company’s shares of Common Stock are “actively
traded securities,” within the meaning of Rule 2711(f)(4) of FINRA;
(q) prior to
the time of purchase to issue no press release or other communication directly
or indirectly and hold no press conferences with respect to the Company or any
Subsidiary, the financial condition, results of operations, business,
properties, assets, or liabilities of the Company or any Subsidiary, or the
offering of the Shares, without your prior consent;
(r) not, at
any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act), or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than the
Prospectus;
(s) not to,
and to cause the Subsidiaries not to, take, directly or indirectly, any action
designed, or which will constitute, or has constituted, or 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
Shares;
(t) to use
its best efforts to cause the Shares to be listed on NASDAQ and to maintain the
listing of the Common Stock for quotation on NASDAQ;
(u) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock;
(v) to use
the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Prospectus under the caption “Use of
proceeds”; and
(w) the
Company agrees that, with out the prior consent of the Underwriter, it has not
made and will not make any offer relating to the Shares that would constitute a
“free writing prospectus” (as defined in Rule 405 under the Act); the Company
has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Permitted Free Writing Prospectus, including timely filing
with the Commission or retention where required and legending; and the Company
agrees that if at any time following issuance of any Permitted Free Writing
Prospectus any event occurred or occurs as a result of which such Permitted Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Disclosure Package or the Prospectus or 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 are made, not misleading, the Company will give prompt notice thereof
to the Underwriter and, if requested by the Underwriter, will prepare and
furnish without charge to the Underwriter a Permitted Free Writing Prospectus or
other document which will correct such conflict, statement or
omission.
5. Reimbursement of the
Underwriter’s Expenses. If the Shares are not delivered for
any reason other than the default of the Underwriter in its obligations
hereunder, the Company shall, in addition to paying the amounts described in
Section 4(n) hereof, reimburse the Underwriter for all of its
out-of-pocket expenses, including the fees and disbursements of its
counsel.
6. Conditions of the
Underwriter’s Obligations. The obligations of the Underwriter
hereunder are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof, at the time of purchase, the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The
Company shall furnish to you at the time of purchase an opinion of Xxxxxxx Coie
LLP, counsel for the Company, addressed to the Underwriter, and dated the time
of purchase, in form and substance satisfactory to the Underwriter, as to the
matters set forth in Exhibit B
hereto.
(b) The
Company shall furnish to you at the time of purchase an opinion of Xxxx X.
Xxxxxxxx, Senior Vice President, General Counsel and Corporate Secretary of the
Company, addressed to the Underwriter, and dated the time of purchase, in form
and substance satisfactory to the Underwriter, as to the matters set forth in
Exhibit C
hereto.
(c) The
Company shall furnish to you at the time of purchase an opinion of Xxxxxx &
Xxxxxxxxx, Luxembourg counsel for the Company, addressed to the Underwriter, and
dated the time of purchase, in form and substance satisfactory to the
Underwriter, as to the matters set forth in Exhibit D
hereto.
(d) You shall
have received from Deloitte & Touche LLP letters dated, respectively, the
date of the Prospectus Supplement and the time of purchase and addressed to the
Underwriter in the forms satisfactory to the Underwriter, which letters shall
cover, without limitation, the various financial disclosures contained in the
Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any.
(e) You shall
have received from Ernst & Young LLP letters dated, respectively, the date
of the Prospectus Supplement and the time of purchase and addressed to the
Underwriter in the forms satisfactory to the Underwriter, which letters shall
cover, without limitation, the various financial disclosures contained in the
Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any.
(f) You shall
have received at the time of purchase, the favorable opinion of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, dated the time of
purchase, in form and substance reasonably satisfactory to the
Underwriter.
(g) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in
writing.
(h) The
Prospectus Supplement shall have been filed with the Commission pursuant to Rule
424(b) under the Act at or before 5:30 P.M., New York City time, on the second
full business day after the date of this Agreement (or such earlier time as may
be required under the Act).
(i) Prior to
and at the time of purchase, (i) no stop order with respect to the effectiveness
of the Registration Statement shall have been issued under the Act or
proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the
Registration Statement and all amendments thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; (iii)
neither the Prospectus nor amendment or supplement thereto shall include an
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 are made, not misleading; (iv) no Disclosure Package, and no
amendment or supplement thereto, shall include an 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 are made, not
misleading; and (v) none of the Permitted Free Writing Prospectuses, if any,
shall include an 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 are made, not misleading.
(j) The
Company will, at the time of purchase deliver to you a certificate of its Chief
Executive Officer and its Chief Financial Officer, dated the time of purchase,
in the form attached as Exhibit E
hereto.
(k) The
Company will deliver to you a certificate of its Chief Financial Officer, dated
the date of the Prospectus Supplement and the time of purchase, with respect to
certain financial information included or incorporated by reference into, the
Prospectus Supplement, in form and substance the Underwriter, in the form
attached as Exhibit
F hereto.
(l) You shall
have received each of the signed Lock-Up Agreements referred to in Section 3(u)
hereof, and each such Lock-Up Agreement shall be in full force and effect at the
time of purchase.
(m) The
Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement,
the Prospectus or any Permitted Free Writing Prospectus as of the time of
purchase as you may reasonably request.
(n) The
Shares shall have been approved for listing on the NASDAQ, subject only to
notice of issuance at or prior to the time of purchase.
(o) FINRA
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions,
contemplated hereby.
7. Effective Date of Agreement;
Termination. This Agreement shall become effective when the
parties hereto have executed and delivered this Agreement.
The
obligations of the Underwriter hereunder shall be subject to termination in the
absolute discretion of the Underwriter, if (1) since the time of execution of
this Agreement or the earlier respective dates as of which information is given
in the Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, there has been any change or any development involving a
prospective change in the business, properties, management, financial condition
or results of operations of the Company and the Subsidiaries taken as a whole,
the effect of which change or development is, in the sole judgment of the
Underwriter, so material and adverse as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Shares on the terms and
in the manner contemplated in the Registration Statement, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or (2) since the time of execution
of this Agreement, there shall have occurred: (A) a suspension or material
limitation in trading in securities generally on NASDAQ, the New York Stock
Exchange or the American Stock Exchange; (B) a suspension or material limitation
in trading in the Company’s securities on NASDAQ; (C) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (D) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war; or (E) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (D) or (E), in the sole judgment of the Underwriter, makes
it impractical or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement, the Prospectus and the Permitted Free Writing
Prospectuses, if any, or (3) since the time of execution of this Agreement,
there shall have occurred any downgrading, or any notice or announcement shall
have been given or made of: (A) any intended or potential downgrading or (B) any
watch, review or possible change that does not indicate an affirmation or
improvement in the rating accorded any securities of or guaranteed by the
Company or any Subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the
Act.
If the
Underwriter elects to terminate this Agreement as provided in this Section 6,
the Company shall be notified promptly in writing.
If the sale
to the Underwriter of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriter for any reason permitted under this Agreement, or
if such sale is not carried out because the Company shall be unable to comply
with any of the terms of this Agreement, the Company shall not be under any
obligation or liability under this Agreement (except to the extent provided in
Sections 4(n), 5 and 8 hereof), and the Underwriter shall be under no obligation
or liability to the Company under this Agreement (except to the extent provided
in Section 8 hereof) or to one another hereunder.
8. Indemnity and
Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless the Underwriter, its
partners, directors and officers, any person who controls the Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company) or arises out
of or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in, and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in, the Registration Statement or
arises out of or is based upon any omission or alleged omission to state a
material fact in the Registration Statement in connection with such information,
which material fact was not contained in such information and which material
fact was required to be stated in such Registration Statement or was necessary
to make such information not misleading or (ii) any untrue statement or alleged
untrue statement of a material fact included in any Prospectus (the term
Prospectus for the purpose of this Section 8 being deemed to include any Basic
Prospectus, the Prospectus Supplement, the Prospectus and any amendments or
supplements to the foregoing), in any Permitted Free Writing Prospectus, in any
“issuer information” (as defined in Rule 433 under the Act) of the Company or in
any Prospectus together with any combination of one or more of the Permitted
Free Writing Prospectuses, if any, or arises out of or is based upon any
omission or alleged omission 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, except, with respect to such Prospectus or Permitted Free
Writing Prospectus, insofar as any such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in, such Prospectus or
Permitted Free Writing Prospectus or arises out of or is based upon any omission
or alleged omission to state a material fact in such Prospectus or Permitted
Free Writing Prospectus in connection with such information, which material fact
was not contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the
circumstances under which they were made, not misleading.
(b) The
Underwriter agrees to indemnify, defend and hold harmless the Company, its
directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning the Underwriter
furnished in writing by or on behalf of the Underwriter to the Company expressly
for use in, the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company), or arises out
of or is based upon any omission or alleged omission to state a material fact in
such Registration Statement in connection with such information, which material
fact was not contained in such information and which material fact was required
to be stated in such Registration Statement or was necessary to make such
information not misleading or (ii) any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
concerning the Underwriter furnished in writing by or on behalf of the
Underwriter through you to the Company expressly for use in, a Prospectus or a
Permitted Free Writing Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in such Prospectus or
Permitted Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact was
necessary in order to make the statements in such information, in the light of
the circumstances under which they were made, not misleading.
(c) If any
action, suit or proceeding (each, a “Proceeding”) is
brought against a person (an “indemnified party”)
in respect of which indemnity may be sought against the Company or the
Underwriter (as applicable, the “indemnifying party”)
pursuant to subsection (a) or (b), respectively, of this Section 8, such
indemnified party shall promptly notify such indemnifying party in writing of
the institution of such Proceeding and such indemnifying party shall assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the
omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have to
any indemnified party or otherwise. The indemnified party or parties
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the
defense of such Proceeding or the indemnifying party shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from, additional to or in conflict with those available to such
indemnifying party (in which case such indemnifying party shall not have the
right to direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by such indemnifying party and paid as incurred (it being understood, however,
that such indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The
indemnifying party shall not be liable for any settlement of any Proceeding
effected without its written consent, such consent not to be unreasonably
withheld, but, if
settled with its written consent, such indemnifying party agrees to indemnify
and hold harmless the indemnified party or parties from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this Section 8(c), then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault or culpability or a
failure to act by or on behalf of such indemnified party.
(d) If the
indemnification provided for in this Section 8 is unavailable to an indemnified
party under subsections (a) and (b) of this Section 8 or insufficient to hold an
indemnified party harmless in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then each applicable indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriter on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriter on the other shall be deemed to be
in the same respective proportions as the total proceeds from the offering (net
of underwriting discounts and commissions but before deducting expenses)
received by the Company, and the total underwriting discounts and commissions
received by the Underwriter, bear to the aggregate public offering price of the
Shares. The relative fault of the Company on the one hand and of the
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission relates to information supplied by the
Company or by the Underwriter and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any Proceeding.
(e) The
Company and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding
the provisions of this Section 8, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by the Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which the Underwriter has
otherwise been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) The
indemnity and contribution agreements contained in this Section 8 and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the Underwriter, its partners, directors or officers or
any person (including each partner, director or officer of such person) who
controls the Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, or by or on behalf of the Company, its directors or
officers or any person who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Shares. The
Company and the Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company,
against any of the Company’s officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement, any Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus.
9. Notices. Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriter,
shall be sufficient in all respects if delivered or sent to Xxxxxxx, Xxxxx &
Co., Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if
to the Company, shall be sufficient in all respects if delivered or sent to the
Company at the offices of the Company at 0000 X. Xxxxxx Xxxx, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxx, Senior Vice President, General
Counsel and Corporate Secretary.
In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), the underwriters are required to
obtain, verify and record information that identifies their respective clients,
including the Company, which information may include the name and address of
their respective clients, as well as other information that will allow the
underwriters to properly identify their respective clients.
10. Governing Law;
Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating
to this Agreement (“Claim”), directly or
indirectly, shall be governed by, and construed in accordance with, the laws of
the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of this
Agreement.
11. Submission to
Jurisdiction. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against the Underwriter
or any indemnified party. The Underwriter and the Company (on its
behalf and, to the extent permitted by applicable law, on behalf of its
shareholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way arising out of or relating to this Agreement. The Company
agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any other courts to the jurisdiction of which the Company or
is or may be subject, by suit upon such judgment.
12. Parties at
Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriter and the Company and to the extent
provided in Section 8 hereof the controlling persons, partners, directors and
officers referred to in such Section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from the Underwriter) shall acquire or have any right under or
by virtue of this Agreement.
13. No Fiduciary
Relationship. The Company hereby acknowledges that the
Underwriter is acting solely as underwriter in connection with the purchase and
sale of the Company’s securities. The Company further acknowledges
that the Underwriter are acting pursuant to a contractual relationship created
solely by this Agreement entered into on an arm’s length basis, and in no event
do the parties intend that the Underwriter act or be responsible as a fiduciary
to the Company, its management, shareholders or creditors or any other person in
connection with any activity that the Underwriter may undertake or has
undertaken in furtherance of the purchase and sale of the Company’s securities,
either before or after the date hereof. The Underwriter hereby
expressly disclaims any fiduciary or similar obligations to the Company, either
in connection with the transactions contemplated by this Agreement or any
matters leading up to such transactions, and the Company hereby confirms its
understanding and agreement to that effect. The Company and the
Underwriter agree that they are each responsible for making their own
independent judgments with respect to any such transactions and that any
opinions or views expressed by the Underwriter to the Company regarding such
transactions, including, but not limited to, any opinions or views with respect
to the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the Underwriter with respect to any breach or alleged breach of
any fiduciary or similar duty to the Company in connection with the transactions
contemplated by this Agreement or any matters leading up to such
transactions.
14. Counterparts. This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
15. Successors and
Assigns. This Agreement shall be binding upon the Underwriter
and the Company and their successors and assigns and any successor or assign of
any substantial portion of the Company’s and the Underwriter’s respective
businesses and/or assets.
[The Remainder of
This Page Intentionally Left Blank; Signature Page Follows]
If the
foregoing correctly sets forth the understanding between the Company and the
Underwriter, please so indicate in the space provided below for that purpose,
whereupon this Agreement and your acceptance shall constitute a binding
agreement between the Company and the Underwriter.
Very truly
yours,
Itron,
Inc.
By:/s/Xxxxxx X.
Xxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Senior V.P. and CFO
Accepted
and agreed to as of the date first above written, on behalf of
itself
Xxxxxxx,
Sachs & Co.
By:/s/ Xxxxxxx, Xxxxx &
Co.
(Xxxxxxx,
Sachs & Co.)
