PLACEMENT AGENCY
AGREEMENT
Needham & Company,
LLC
445 Park Avenue
New York, New York 10022
Semitool, Inc., a
Montana corporation (the “Company”), proposes to issue
and sell to certain investors (collectively, the
“Investors”) up to an aggregate of 3,000,000 shares of
the Company’s common stock, no par value per share (the
“Common Stock”), and Raymon F. Thompson (the
“Selling Stockholder”) proposes to sell to the
Investors up to an aggregate of 2,000,000 shares of Common Stock
(the 5,000,000 shares to be sold collectively by the Company and
the Selling Stockholder to the Investors, the
“Shares”). The Company and the Selling Stockholder
desire to engage Needham & Company, LLC as their exclusive
placement agent (the “Placement Agent”) in connection
with the issuance and sale of the Shares. The Shares are described
more fully in the Prospectuses that are referred to
below.
The Company and
the Selling Stockholder confirm their agreements with the Placement
Agent as follows:
1. Agreement to Act as Placement Agent.
(a) On the
basis of the representations, warranties and agreements of the
Company and the Selling Stockholder herein contained and subject to
all of the terms and conditions of this Agreement, the Company and
the Selling Stockholder engage the Placement Agent to act as their
exclusive placement agent in connection with the issuance and sale
of the Shares and the Placement Agent hereby agrees, as an agent of
the Company and the Selling Stockholder, to use its commercially
reasonable efforts to solicit offers to purchase the Shares upon
the terms and conditions set forth in the Prospectuses (as defined
below). Prior to the earlier of (i) the date on which this
Agreement is terminated and (ii) the Closing Date (as defined
below), the Company and the Selling Stockholder shall not, without
the prior consent of the Placement Agent, solicit or accept offers
to purchase Common Stock (except that the Company may do so
pursuant to the exercise of options or warrants to purchase shares
of Common Stock that are outstanding as of the date hereof)
otherwise than through the Placement Agent in accordance
herewith.
(b) As
compensation for the services rendered hereunder, on the Closing
Date (as defined below), the Company shall pay to the Placement
Agent, by wire transfer of immediately available U.S. funds payable
to the order of the Placement Agent, to an account or accounts
designated by the Placement Agent, an amount equal to 5.4% of the
gross proceeds received by the Company from its sale of the Shares,
and the Selling Stockholder shall pay to the Placement Agent, by
wire transfer of immediately available U.S. funds payable to the
order of the Placement Agent, to an account or accounts designated
by the Placement Agent, an amount equal to 5.4% of the gross
proceeds received by the Selling Stockholder from its sale of the
Shares (the aggregate of the fees paid by the Company and the
Selling Stockholder, the “Fee”). The Placement Agent
may, in its discretion, retain other brokers or dealers to act as
sub-agents on the Placement Agent’s behalf in connection with
the offering of the Shares.
(c) This
Agreement shall not give rise to a commitment by the Placement
Agent or any of its affiliates to underwrite or purchase any of the
Shares or otherwise provide any financing, and the Placement Agent
shall have no authority to bind the Company and the Selling
Stockholder in respect of the sale of any Shares. Each of the
Company and the Selling Stockholder shall have the sole right to
accept offers to purchase the Shares and may reject any such offer
in whole or in part. The Placement Agent shall have the right, in
its discretion reasonably exercised, without notice to the Company
or the Selling Stockholder, to reject any offer to purchase Shares
received by it, in whole or in part, and any such rejection shall
not be deemed a breach of its agreement contained herein. The sale
of the Shares shall be made pursuant to purchase agreements in the
form attached hereto as Exhibit A (the “Purchase
Agreements”).
2. Delivery and Payment. (a) Concurrently
with the execution and delivery of this Agreement, the Company, the
Selling Stockholder, the Placement Agent and Wells Fargo Bank,
N.A., as escrow agent (the “Escrow Agent”), shall enter
into an escrow agreement (the “Escrow Agreement”),
pursuant to which an escrow account (the “Escrow
Account”) will be established for the benefit of the Company,
the Selling Stockholder and the Investors. Prior to the Closing,
each such Investor shall deposit into the Escrow Account an amount
equal to the product of (x) the number of Shares such Investor
has agreed to purchase and (y) the purchase price per share
determined by the Purchase Agreements (the “Purchase
Amount”). The aggregate of such Purchase Amounts is herein
referred to as the “Escrow Funds.” On the Closing Date,
the Escrow Agent will disburse the Escrow Funds to the Company, the
Selling Stockholder and the Placement Agent as provided in the
Escrow Agreement and the Company shall cause its transfer agent to
deliver the Shares purchased by such Investors.
(b) Subject
to the terms and conditions hereof, delivery of the Shares shall be
made by the Company and the Selling Stockholder to the Investors,
and payment of the purchase price shall be made by the Investors,
at the office of Morrison & Foerster LLP, 755 Page Mill Road,
Palo Alto, CA, at 10:00 a.m., New York City time, on or before
December 21, 2005 or at such time on such other date as may be
agreed upon in writing by the Company, the Selling Stockholder and
the Placement Agent but in no event prior to the date on which the
Escrow Agent shall have received all of the Escrow Funds (such date
of delivery and payment is hereinafter referred to as the
“Closing Date”). The Shares shall be delivered, through
the facilities of The Depository Trust Company, to such persons,
and shall be registered in such name or names and shall be in such
denominations, as the Placement Agent may request by written notice
to the Company and the Selling Stockholder at least one business
day before the Closing Date. The cost of original issue tax stamps
and other transfer taxes, if any, in connection with the issuance
and/or delivery of the Shares by the Company and the Selling
Stockholder to the respective Investors shall be borne by the
Company.
3. Representations and Warranties of the Company. The
Company represents, warrants and covenants to the Placement Agent
that:
(a) The
Company meets the requirements for the use of Form S-3, a
registration statement (Registration No. 333-39492) on Form
S-3 relating to the Shares being offered by the Company, including
a base prospectus relating to the Shares being offered by the
Company (the “Base Prospectus”) and such amendments
thereof as may have been required to the date of this Agreement,
has been prepared by the Company under the provisions of the
Securities Act of 1933, as amended (the “Act”), and the
rules and regulations (collectively referred to as the “Rules
and Regulations”) of the Securities and Exchange Commission
(the “Commission”) thereunder, and has been filed with
and has been declared effective by the Commission, and the offering
of the Shares by the Company complies with Rule 415 under the
Act. A final prospectus supplement to the Base Prospectus relating
to the Shares being offered by the Company and the offering thereof
will be filed promptly by the Company with the Commission in
accordance with Rule 424(b) of the Rules and Regulations. Such
registration statement at any given time, including the amendments
thereto to such time, the exhibits and any schedules thereto at
such time, the documents otherwise deemed to be a part thereof or
included therein by the Rules and Regulations, and any registration
statement relating to the offering of Shares by the Company
contemplated by this Agreement and filed pursuant to Rule 462(b) of
the Rules and Regulations, is herein called the “Company
Registration Statement.” The term “Prospectus
Supplement” means the final prospectus supplement to the Base
Prospectus relating to the Shares being offered by the Company and
the offering thereof as first filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations. The term “Company
Prospectus” means the Base Prospectus together with the
Prospectus Supplement, except that if such Base Prospectus is
amended or supplemented on or prior to the date on which the
Prospectus Supplement was first filed pursuant to Rule 424(b) of
the Rules and Regulations, the term “Company
Prospectus” shall mean the
2
Base Prospectus
as so amended or supplemented and as supplemented by the Prospectus
Supplement. A registration statement (Registration
No. 333-112964) on Form S-3 relating to the Shares being
offered by the Selling Stockholder, and such amendments thereof as
may have been required to the date of this Agreement, has been
prepared by the Company and the Selling Stockholder under the
provisions of the Act and the Rules and Regulations of the
Commission thereunder, and has been filed with and has been
declared effective by the Commission, and the offering of the
Shares by the Selling Stockholder complies with Rule 415 under
the Act. Such registration statement at any given time, including
the amendments thereto to such time, the exhibits and any schedules
thereto at such time, the documents otherwise deemed to be a part
thereof or included therein by the Rules and Regulations, and any
registration statement relating to the offering of Shares by the
Selling Stockholder contemplated by this Agreement and filed
pursuant to Rule 462(b) of the Rules and Regulations, is herein
called the “Selling Stockholder Registration
Statement,” and together with the Company Registration
Statement, the “Registration Statements.” The term
“Selling Stockholder Prospectus” means the prospectus
included in the Selling Stockholder Registration Statement together
with the prospectus filed pursuant to Rule 424(b) of the Rules and
Regulations, as it may be amended or supplemented, and together
with the Company Prospectus, the “Prospectuses.” Any
reference herein to the Company Registration Statement, the Selling
Stockholder Registration Statement, the Registration Statements,
the Base Prospectus, the Prospectus Supplement, the Company
Prospectus, the Selling Stockholder Prospectus or the Prospectuses
shall be deemed to refer to and include the documents incorporated
by reference therein, and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Company Registration
Statement, the Selling Stockholder Registration Statement, the
Registration Statements, the Base Prospectus, the Prospectus
Supplement, the Company Prospectus, the Selling Stockholder
Prospectus or the Prospectuses shall be deemed to refer to and
include the filing of any document under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), after the
time the Registration Statement initially became effective (the
“Effective Date”), the date of any preliminary
prospectus or the date of the Prospectuses, as the case may be, and
deemed to be incorporated therein by reference. The term
“Issuer Free Writing Prospectus” means an “issuer
free writing prospectus” as defined in Rule 433 of the
Rules and Regulations.
(b) No order
preventing or suspending the use of the Base Prospectus, the
Prospectus Supplement, the Prospectuses or any Issuer Free Writing
Prospectus has been issued by the Commission, and no stop order
suspending the effectiveness of the Registration Statements
(including any related registration statement filed pursuant to
Rule 462(b) under the Act) or any post-effective amendment thereto
has been issued, and no proceeding for that purpose has been
initiated or threatened by the Commission. On the Effective Date,
on the date (if any) the Base Prospectus, the Prospectus
Supplement, or the Prospectuses are first filed with the Commission
pursuant to Rule 424(b), at all times during the period
through and including the Closing Date and when any post-effective
amendment to the Registration Statements becomes effective or any
amendment or supplement to the Prospectuses is filed with the
Commission, the Registration Statements and the Prospectuses (as
amended or as supplemented if the Company shall have filed with the
Commission any amendment or supplement thereto), including the
financial statements included or incorporated by reference in the
Prospectuses, did and will comply in all material respects with all
applicable provisions of the Act, the Exchange Act, the rules and
regulations under the Exchange Act (the “Exchange Act Rules
and Regulations”), and the Rules and Regulations did and will
contain all statements required to be stated therein in accordance
with the Act, the Exchange Act, the Exchange Act Rules and
Regulations, and the Rules and Regulations. On the Effective Date
and when any post-effective amendment to the Registration
Statements becomes effective, no part of the Registration
Statements, the Base Prospectus or any such amendment or supplement
thereto did or will contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
At the Effective Date, the date the Base Prospectus or any
amendment or supplement to the Base Prospectus, including the
Prospectus Supplement, is filed with the Commission, the date of
first use of the Prospectus Supplement, and the Closing Date, the
Prospectuses did not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The foregoing representations
and warranties in this Section 3(b) do not apply to any statements
or omissions made in reliance on and in conformity with information
relating to the Placement Agent furnished in writing to the Company
by the Placement Agent specifically for inclusion in the
Registration Statements, the Base Prospectus, the Prospectus
Supplement or Prospectuses or any amendment or supplement thereto.
The Company acknowledges that the statements set forth in the last
paragraph under the heading “Plan of Distribution” in
the Prospectus Supplement constitute the only information relating
to the Placement Agent furnished in writing to the Company by the
Placement Agent specifically for inclusion in the
Registration
3
Statements, the
Base Prospectus, the Prospectus Supplement, or the Prospectuses or
any amendment or supplement thereto.
(c) The
documents that are incorporated by reference in the Base
Prospectus, the Prospectus Supplement and the Prospectuses or from
which information is so incorporated by reference, when they became
or become effective or were or are filed with the Commission, as
the case may be, complied or will comply in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations or the Exchange Act Rules
and Regulations, as applicable; and any documents so filed and
incorporated by reference subsequent to the Effective Date shall,
when they are filed with the Commission, comply in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations or the Exchange Act Rules
and Regulations, as applicable.
(d) No Issuer
Free Writing Prospectus includes any information that conflicts
with the information contained in the Registration Statements,
including any document incorporated by reference therein that has
not been superseded or modified. If at any time following issuance
of an Issuer Free Writing Prospectus any event occurred or occurs
as result of which such Issuer Free Writing Prospectus would
conflict with the information in the Registration Statements, the
Prospectuses or the Prospectus Supplement or 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 then prevailing, not misleading, the Company will
notify promptly the Placement Agent and, if requested by the
Placement Agent, will prepare and furnish without charge to the
Placement Agent an Issuer Free Writing Prospectus or other document
that will correct such conflict, statement or omission. The
foregoing two sentences do not apply to statements in or omissions
from an Issuer Free Writing Prospectus made in reliance on and in
conformity with information relating to the Placement Agent
furnished in writing to the Company by the Placement Agent
specifically for inclusion therein, it being understood and agreed
that the only such information furnished by or on behalf of the
Placement Agent consists of the information described as such in
Section 3(b) above.
(e) The
Company does not own, and at the Closing Date will not own,
directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity
interest in any corporation, firm, partnership, joint venture,
association or other entity, other than the subsidiaries listed in
Exhibit 21.1 to the Company’s Annual Report on Form 10-K
for the fiscal year ended September 30, 2005 (the
“Subsidiaries”). The Company and each of its
Subsidiaries is, and at the Closing Date will be, a corporation
duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation. The Company and each of
its Subsidiaries has, and at the Closing Date will have, full power
and authority to conduct all the activities conducted by it, to own
or lease all the assets owned or leased by it and to conduct its
business as described in the Registration Statements and the
Prospectuses. The Company and each of its Subsidiaries is, and at
the Closing Date will be, duly licensed or qualified to do business
and in good standing as a foreign corporation in all jurisdictions
in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such license or
qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not materially and
adversely affect the Company and its Subsidiaries, taken as a
whole, or their respective businesses, properties, business
prospects, conditions (financial or other) or results of
operations, taken as a whole (such effect is referred to herein as
a “Material Adverse Effect”). All of the outstanding
shares of capital stock of each Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable,
and are owned by the Company free and clear of all claims, liens,
charges and encumbrances; there are no securities outstanding that
are convertible into or exercisable or exchangeable for capital
stock of any Subsidiary. The Company and its Subsidiaries are not,
and at the Closing Date will not be, engaged in any discussions or
a party to any agreement or understanding, written or oral,
regarding the acquisition of an interest in any corporation, firm,
partnership, joint venture, association or other entity where such
discussions, agreements or understandings would require amendment
to the Registration Statements pursuant to applicable securities
laws. Complete and correct copies of the articles of incorporation,
by-laws or other organizational documents of the Company and each
of its Subsidiaries and all amendments thereto have been delivered
to the Placement Agent, and no changes therein will be made
subsequent to the date hereof and prior to the Closing
Date.
(f) The
Company has authorized, issued and outstanding capital stock as set
forth under the caption “Capitalization” in the
Prospectus Supplement as of the date set forth therein. All of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable
and
4
were issued in
compliance with all applicable state and federal securities laws;
the Shares have been duly authorized and when issued and paid for
as contemplated herein will be validly issued, fully paid and
nonassessable; and no preemptive or similar rights exist with
respect to any of the Shares or the issue and sale thereof. The
description of the capital stock of the Company included or
incorporated by reference in the Registration Statements and the
Prospectuses is, and at the Closing Date will be, complete and
accurate in all material respects. Except as set forth in the
Prospectuses, the Company does not have outstanding, and at the
Closing Date will not have outstanding, any options to purchase, or
any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to
issue or sell, any shares of capital stock, or any such warrants,
convertible securities or obligations. No further approval or
authority of shareholders or the Board of Directors of the Company
will be required for the issuance and sale of the Shares as
contemplated herein. The certificates evidencing the Shares are in
due and proper legal form and have been duly authorized for
issuance by the Company.
(g) The
financial statements and schedule included or incorporated by
reference in the Registration Statements or the Prospectuses
present fairly in all material respects the financial condition of
the Company and its consolidated Subsidiaries as of the respective
dates thereof and the results of operations and cash flows of the
Company and its consolidated Subsidiaries for the respective
periods covered thereby, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
entire period involved, except as otherwise disclosed in the
Prospectus. No other financial statements or schedules of the
Company are required by the Act, the Exchange Act, the Exchange Act
Rules and Regulations or the Rules and Regulations to be included
in the Registration Statements or the Prospectuses.
PricewaterhouseCoopers LLP (the “Accountants”), who
have reported on such financial statements and schedule, are
independent accountants with respect to the Company as required by
the Act and the Rules and Regulations and Rule 3600T of the
Public Company Accounting Oversight Board (“PCAOB”).
The summary and selected consolidated financial and statistical
data included or incorporated by reference in the Registration
Statements present fairly the information shown therein and have
been compiled on a basis consistent with the audited financial
statements presented in the Registration Statements.
(h) Subsequent
to the respective dates as of which information is given in the
Registration Statements and the Prospectuses and prior to or on the
Closing Date, except as set forth in or contemplated by the
Registration Statements and the Prospectuses, (i) there has
not been and will not have been any change in the capitalization of
the Company (other than in connection with the exercise of options
to purchase the Company’s Common Stock granted pursuant to
the Company’s stock option plans from the shares reserved
therefor as described in the Registration Statements), or any
Material Adverse Effect arising for any reason whatsoever,
(ii) neither the Company nor any of its Subsidiaries has
incurred nor will any of them incur, except in the ordinary course
of business as described in the Prospectus, any material
liabilities or obligations, direct or contingent, nor has the
Company or any of its Subsidiaries entered into nor will it enter
into, except in the ordinary course of business as described in the
Prospectuses, any material transactions other than pursuant to this
Agreement and the transactions referred to herein and
(iii) the Company has not and will not have paid or declared
any dividends or other distributions of any kind on any class of
its capital stock.
(i) The
Company is not, will not become as a result of the transactions
contemplated hereby, and will not conduct its business in a manner
that would cause it to become, an “investment company”
or an “affiliated person” of, or “promoter”
or “principal underwriter” for, an “investment
company,” as such terms are defined in the Investment Company
Act of 1940, as amended.
(j) Except as
set forth in the Registration Statements and the Prospectuses,
there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the
Company, or any of its Subsidiaries or any of its or their
respective officers in their capacity as such, nor any basis
therefor, before or by any federal or state court, commission,
regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or
finding would reasonably be expected to have a Material Adverse
Effect.
(k) The
Company and each Subsidiary has, and at the Closing Date will have,
performed all the obligations required to be performed by it, and
is not, and at the Closing Date will not be, in default, under any
contract or other instrument to which it is a party or by which its
property is bound or affected, which default would reasonably be
expected to have a Material Adverse Effect. To the knowledge of the
Company, no other party under any contract or other instrument to
which it or any of its Subsidiaries is a party is in default in any
respect
5
thereunder,
which default might have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is, or at the Closing Date will
be, in violation of any provision of its articles of incorporation,
by-laws or other organizational documents.
(l) No
consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is
required for the consummation by the Company of the transactions on
its part contemplated herein, except such as have been obtained
under the Act or the Rules and Regulations and such as may be
required under state securities or Blue Sky laws or the by-laws and
rules of the National Association of Securities Dealers, Inc. (the
“NASD”) in connection with the public offering of the
Shares.
(m) The
Company has full corporate power and authority to enter into this
Agreement and each Purchase Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company, enforceable against the
Company in accordance with the terms hereof. Each Purchase
Agreement has been duly authorized and, as of the Closing Date,
will have been executed and delivered by the Company and will
constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with the terms
thereof. The Escrow Agreement has been duly authorized and, as of
the Closing Date, will have been executed and delivered by the
Company and constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with the
terms thereof. The performance of this Agreement, the Purchase
Agreements and the Escrow Agreement and the consummation of the
transactions contemplated hereby and thereby will not result in the
creation or imposition of any material lien, charge or encumbrance
upon any of the assets of the Company pursuant to the terms or
provisions of, or result in a breach or violation of any of the
terms or provisions of, or conflict with or constitute a default
under, or give any party a right to terminate any of its
obligations under, or result in the acceleration of any obligation
under, the articles of incorporation, by-laws or other
organizational documents of the Company or any of its Subsidiaries,
any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement or other evidence
of indebtedness, lease, contract or other agreement or instrument
to which the Company or any of its Subsidiaries is a party or by
which the Company, any of its Subsidiaries or any of its or their
properties is bound or affected, or violate or conflict with any
judgment, ruling, decree, order, statute, rule or regulation of any
court or other governmental agency or body applicable to the
business or properties of the Company or any of its
Subsidiaries.
(n) The
Company and its Subsidiaries have good and marketable title to all
properties and assets described in the Prospectuses as owned by
them, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Prospectuses or
are not material to the business of the Company or its
Subsidiaries. The Company and its Subsidiaries have valid,
subsisting and enforceable leases for the properties described in
the Prospectuses as leased by them. The Company and its
Subsidiaries own or lease all such properties as are necessary to
their respective operations as now conducted or as proposed to be
conducted, except where the failure to so own or lease would not
have a Material Adverse Effect.
(o) There is
no document, contract, permit or instrument, affiliate transaction
or off-balance sheet transaction (including, without limitation,
any “variable interests” in “variable interest
entities,” as such terms are defined in Financial Accounting
Standards Board Interpretation No. 46) of a character required
to be described in the Registration Statements or the Prospectuses
or to be filed as an exhibit to the Registration Statements that is
not described or filed as required. All such contracts to which the
Company or any of its Subsidiaries is a party have been duly
authorized, executed and delivered by the Company or such
Subsidiary, constitute valid and binding agreements of the Company
or such Subsidiary and are enforceable against and by the Company
or such Subsidiary in accordance with the terms thereof.
(p) No
relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company on the other hand, which is
required to be described in the Prospectus and which is not so
described.
(q) No
statement, representation, warranty or covenant made by the Company
in this Agreement or made in any certificate or document required
by Section 8 of this Agreement to be delivered to the
Placement Agent was or will be, when made, inaccurate, untrue or
incorrect.
6
(r) The
Company has not distributed, and will not distribute prior to the
Closing Date, any offering material in connection with the offering
and sale of the Shares other than any preliminary prospectuses, the
Prospectuses, the Registration Statements and other materials, if
any, permitted by the Act. Neither the Company nor any of its
directors, officers or controlling persons has taken, directly or
indirectly, any action designed, or that might reasonably be
expected, to cause or result, under the Act or otherwise, in, or
that has constituted, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Shares.
(s) No holder
of securities of the Company has rights to the registration of any
securities of the Company because of the filing of the Registration
Statements, which rights have not been waived by the holder thereof
as of the date hereof.
(t) The
Common Stock is registered under Section 12(g) of the Exchange Act
and the Company has filed an application to list the Shares on the
Nasdaq National Market (“NNM”), and has received
notification that the listing has been approved, subject to notice
of issuance of the Shares.
(u) Except as
disclosed in or specifically contemplated by the Prospectuses
(i) the Company and each of its Subsidiaries owns or has
adequate rights to use all trademarks, trade names, domain names,
patents, patent rights, mask works, copyrights, technology,
know-how (including trade secrets and other unpatented or
unpatentable proprietary or confidential information, systems or
procedures), service marks, trade dress rights, and other
intellectual property (collectively, “Intellectual
Property”) and has such other licenses, approvals and
governmental authorizations, in each case, sufficient to conduct
its business as now conducted, and to the Company’s and its
Subsidiaries’ knowledge, none of the foregoing Intellectual
Property rights owned or licensed by the Company or any of its
Subsidiaries is invalid or unenforceable, (ii) the Company has
no knowledge of any infringement by it or any of its Subsidiaries
of Intellectual Property rights of others, where such infringement
could have a Material Adverse Effect, (iii) the Company is not
aware of any infringement, misappropriation or violation by others
of, or conflict by others with rights of the Company or any of its
Subsidiaries with respect to, any Intellectual Property, (iv) there
is no claim being made against the Company or any of its
Subsidiaries or, to the knowledge of the Company and its
Subsidiaries, any employee of the Company or any of its
Subsidiaries, regarding Intellectual Property or other infringement
that could have a Material Adverse Effect, and (v) the Company
and its Subsidiaries have not received any notice of infringement
with respect to any patent or any notice challenging the validity,
scope or enforceability of any Intellectual Property owned by or
licensed to the Company or any of its Subsidiaries, in each case
the loss of which patent or Intellectual Property (or loss of
rights thereto) would have a Material Adverse Effect.
(v) The
Company and each of its Subsidiaries has filed all federal, state,
local and foreign income tax returns that have been required to be
filed and has paid all taxes and assessments received by it to the
extent that such taxes or assessments have become due. Neither the
Company nor any of its Subsidiaries has any tax deficiency that has
been or, to the knowledge of the Company, might be asserted or
threatened against it that could have a Material Adverse
Effect.
(w) The
Company or its Subsidiaries own or possess all authorizations,
approvals, orders, licenses, registrations, other certificates and
permits of and from all governmental regulatory officials and
bodies, necessary to conduct their respective businesses as
contemplated in the Prospectus, except where the failure to own or
possess all such authorizations, approvals, orders, licenses,
registrations, other certificates and permits would not have a
Material Adverse Effect. There is no proceeding pending or overtly
threatened (or any basis therefor known to the Company) that may
cause any such authorization, approval, order, license,
registration, certificate or permit to be revoked, withdrawn,
cancelled, suspended or not renewed; and the Company and each of
its Subsidiaries is conducting its business in compliance with all
laws, rules and regulations applicable thereto (including, without
limitation, all applicable federal, state and local environmental
laws and regulations) except where such noncompliance would not
have a Material Adverse Effect.
(x) The
Company and each of its Subsidiaries maintain insurance of the
types and in the amounts generally deemed adequate for its
business, including, but not limited to, insurance covering real
and personal property owned or leased by the Company and its
Subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which
insurance is in full force and effect.
7
(y) No labor
disturbance by the employees of the Company or its Subsidiaries
exists or, to the knowledge of the Company, is imminent, which
might have a Material Adverse Effect.
(z) The
Company is in compliance in all material respects with all
presently applicable requirements and provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder
(“ERISA”) and the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, including the regulations
and published interpretations thereunder; no “reportable
event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred and
does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any
“pension plan” or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
“Code”); and each “pension plan” for which
the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such
qualification.
(aa) There
has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or
its Subsidiaries at, upon or from any of the property now or
previously owned or leased by the Company or its Subsidiaries in
violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which would not have, individually or in the
aggregate with all such violations and remedial actions, a Material
Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto
such property or into the environment surrounding such property of
any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or its
Subsidiaries or with respect to which the Company has knowledge,
except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not have, individually or in
the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a Material Adverse
Effect; and the terms “hazardous wastes,” “toxic
wastes,” “hazardous substances” and
“medical wastes” shall have the meanings specified in
any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(bb) Neither
the Company nor any of its Subsidiaries nor, to Company’s
knowledge, any of its or their respective employees or agents at
any time during the last five years has (i) made any unlawful
contribution to any candidate for foreign office, or failed to
disclose fully any contribution in violation of law, or
(ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by
the laws of the United States or any jurisdiction
thereof.
(cc) The
books, records and accounts of the Company and its Subsidiaries
accurately and fairly reflect in all material respects, in
reasonable detail, the transactions in, and dispositions of, the
assets of, and the results of operations of, the Company and its
Subsidiaries. The Company and each of its Subsidiaries maintain
systems of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of the Company’s consolidated financial
statements in accordance with generally accepted accounting
principles and to maintain asset accountability, (iii) access
to assets is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(dd) The
Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under
the Exchange Act), which (i) are designed to ensure that
material information relating to the Company, including its
Subsidiaries, is made known to the Company’s principal
executive officer and its principal financial officer by others
within those entities, particularly during the periods in which the
periodic reports required under the Exchange Act are being
prepared; (ii) have been evaluated for effectiveness; and
(iii) are effective in all material respects to perform the
functions for which they were established.
(ee) Based on
the evaluation of its disclosure controls and procedures, the
Company is not aware of (i) any significant deficiency or
material weakness in the design or operation of internal control
over financial reporting that
8
is reasonably
likely to adversely affect the Company’s ability to record,
process, summarize and report financial information; or
(ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
Company’s internal control over financial
reporting.
(ff) Since
the date of the most recent evaluation of such disclosure controls
and procedures, 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 or material weaknesses.
(gg) The
Company is in compliance in all material respects with applicable
provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations of the Commission and The Nasdaq Stock Market that
pertain thereto that are effective and is actively taking steps to
ensure that it will be in compliance in all material respects with
other applicable provisions of the Sarbanes-Oxley Act of 2002 and
the rules and regulations of the Commission and The Nasdaq Stock
Market that pertain thereto upon the effectiveness of such
provisions.
(hh) There
are no affiliations or associations between any member of the NASD
and any of the Company’s officers, directors, or 5% or
greater securityholders, except as set forth in the Registration
Statement and the Prospectus.
(ii) On
June 16, 2000, the Company satisfied, and on December 21,
2005, the Company will satisfy, the eligibility requirements in
existence prior to October 21, 1992 for the use of a
registration statement on Form S-3 for the offering of the
Shares.
4. Representations and Warranties of the Selling
Stockholder. The Selling Stockholder represents, warrants and
covenants to the Placement Agent that:
(a) The
Selling Stockholder has, and immediately prior to the Closing Date
the Selling Stockholder will have, good and valid title to the
Shares to be sold by the Selling Stockholder hereunder, free and
clear of all liens, encumbrances, equities or claims; and upon
delivery of such Shares and payment therefor by the Investor, good
and valid title to such shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the
Investor.
(b) The
Selling Stockholder has full power and authority to enter into this
Agreement and each Purchase Agreement. This Agreement has been duly
executed and delivered by the Selling Stockholder and constitutes a
valid and binding agreement of the Selling Stockholder, enforceable
against the Selling Stockholder in accordance with the terms
hereof. Each Purchase Agreement, as of the Closing Date, will have
been executed and delivered by the Selling Stockholder and will
constitute a valid and binding agreement of the Selling
Stockholder, enforceable against the Selling Stockholder in
accordance with the terms thereof. The Escrow Agreement, as of the
Closing Date, will have been executed and delivered by the Selling
Stockholder and constitute a valid and binding agreement of the
Selling Stockholder, enforceable against the Selling Stockholder in
accordance with the terms thereof.
(c) On the
Effective Date and when any post-effective amendment to the
Registration Statements becomes effective, no part of the
Registration Statements, the Base Prospectus or any such amendment
or supplement thereto did or will contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading. At the Effective Date, the date the Base Prospectus
or any amendment or supplement to the Base Prospectus, including
the Prospectus Supplement, is filed with the Commission, the date
of first use of the Prospectus Supplement, and the Closing Date,
the Prospectuses did not and will not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing
representations and warranties in this Section 4(c) do not apply to
any statements or omissions made in reliance on and in conformity
with information relating to the Placement Agent furnished in
writing to the Company by the Placement Agent specifically for
inclusion in the Registration Statements, the Base Prospectus, the
Prospectus Supplement or Prospectuses or any amendment or
supplement thereto. The Selling Stockholder acknowledges that the
statements set forth in the last paragraph under the heading
“Plan of Distribution” in the Prospectus Supplement
constitute the only information relating to the Placement Agent
furnished in writing to the Company by the Placement Agent
specifically for inclusion in the Registration Statements, the Base
Prospectus, the Prospectus Supplement, or the Prospectuses or any
amendment or supplement thereto.
9
(d) The
Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in
Section 3 hereof are not true and correct, is familiar with
the Registration Statements and the Prospectuses (as amended or
supplemented) and has no knowledge of any material fact, condition
or information not disclosed in the Registration Statements, as of
their respective effective dates, or the Prospectuses (or any
amendment or supplement thereto), as of the applicable filing
dates, which has adversely affected or may adversely affect the
business of the Company.
(e) The
Selling Stockholder is not prompted to sell Shares by any material
information concerning the Company which is not set forth in, or
incorporated by reference into, the Prospectuses or the
Registration Statements.
5. Agreements of the Company. The Company covenants and
agrees with the Placement Agent as follows:
(a) The
Company will not, during such period as the Prospectus is required
by law to be delivered in connection with sales of the Shares or a
dealer, file any amendment or supplement to the Registration
Statements or the Prospectuses, unless a copy thereof shall first
have been submitted to the Placement Agent within a reasonable
period of time prior to the filing thereof and the Placement Agent
shall not have objected thereto in good faith and on reasonable
grounds.
(b) The
Company will notify the Placement Agent promptly, and will confirm
such advice in writing, (i) when any post-effective amendment
to the Registration Statements becomes effective, (ii) of any
request by the Commission for amendments or supplements to the
Registration Statements or the Prospectuses or for additional
information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statements or the initiation of any proceedings for that purpose or
the threat thereof, (iv) of the happening of any event during
the period mentioned in the second sentence of Section 4(e) that in
the judgment of the Company makes any statement made in the
Registration Statements or the Prospectuses untrue or that requires
the making of any changes in the Registration Statements or the
Prospectuses in order to make the statements therein, in the light
of the circumstances in which they are made, not misleading, and
(v) of receipt by the Company or any representative or
attorney of the Company of any other communication from the
Commission relating to the Company, the Registration Statements,
any preliminary prospectus, the Base Prospectus, the Prospectus
Supplement or the Prospectuses. If at any time the Commission shall
issue any order suspending the effectiveness of the Registration
Statements, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible moment. If
the Company has omitted any information from the Company
Registration Statement pursuant to Rule 430A of the Rules and
Regulations or has omitted any information from the Base Prospectus
pursuant to Rule 430B or 430C of the Rules and Regulations,
the Company will comply with the provisions of and make all
requisite filings with the Commission pursuant to said
Rule 430A, Rule 430B or 430C, as applicable, and notify
the Placement Agent promptly of all such filings. If the Company
elects to rely upon Rule 462(b) under the Act, the Company shall
file a registration statement under Rule 462(b) with the Commission
in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for such
Rule 462(b) registration statement or give irrevocable instructions
for the payment of such fee pursuant to the Rules and
Regulations.
(c) The
Company will furnish to the Placement Agent, without charge, one
signed copy of each of the Registration Statements and of any
post-effective amendment thereto, including financial statements
and schedules, and all exhibits thereto and will furnish to the
Placement Agent, without charge, a copy of the Registration
Statements and any pre- or post-effective amendment thereto,
including financial statements and schedules but without
exhibits.
(d) the
Company will comply with all the pro
|
